[Congressional Record Volume 144, Number 34 (Tuesday, March 24, 1998)]
[House]
[Pages H1445-H1449]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               AMENDMENTS

  Under clause 6 of rule XXIII, proposed amendments were submitted as 
follows:

                               H.R. 2578

                        Offered By: Mr. LaFalce

       Amendment No. 1: Page 2, after line 22, insert the 
     following:

     SEC. 3. AMENDMENT OF THE ILLEGAL IMMIGRATION REFORM AND 
                   IMMIGRANT RESPONSIBILITY ACT OF 1996.

       (a) In General.--Section 110(a) of the Illegal Immigration 
     Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 
     1221 note) is amended to read as follows:
       ``(a) System.--
       ``(1) In general.--Subject to paragraph (2), not later than 
     2 years after the date of the enactment of this Act, the 
     Attorney General shall develop an automated entry and exit 
     control system that will--
       ``(A) collect a record of departure for every alien 
     departing the United States and match the record of departure 
     with the record of the alien's arrival in the United States; 
     and
       ``(B) enable the Attorney General to identify, through on-
     line searching procedures,

[[Page H1446]]

     lawfully admitted nonimmigrants who remain in the United 
     States beyond the period authorized by the Attorney General.
       ``(2) Exception.--The system under paragraph (1) shall not 
     collect a record of arrival or departure--
       ``(A) at a land border or seaport of the United States for 
     any alien;
       ``(B) for any alien for whom the documentary requirements 
     in section 212(a)(7)(B) of the Immigration and Nationality 
     Act have been waived by the Attorney General and the 
     Secretary of State under section 212(d)(4)(B) of the 
     Immigration and Nationality Act.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect as if included in the enactment of the 
     Illegal Immigration Reform and Immigrant Responsibility Act 
     of 1996 (division C of Public Law 104-208; 110 Stat. 3009-
     546).

     SEC. 4. REPORT.

       (a) Requirement.--Not later than two years after the date 
     of enactment of this Act, the Attorney General shall submit a 
     report to the Committees on the Judiciary of the Senate and 
     the House of Representatives on the feasibility of developing 
     and implementing an automated entry-exit control system that 
     would collect a record of departure for every alien departing 
     the United States and match the record of departure with the 
     record of the alien's arrival in the United States, including 
     departures and arrivals at the land borders of the United 
     States.
       (b) Contents of Report.--Such report shall--
       (1) assess the costs and feasibility of various means of 
     operating such an automated entry-exit control system, 
     including exploring--
       (A) how, if the automated entry-exit control system were 
     limited to certain aliens arriving at airports, departure 
     records of those aliens could be collected when they depart 
     through a land border or seaport; and
       (B) the feasibility of the Attorney General, in 
     consultation with the Secretary of State, negotiating 
     reciprocal agreements with the governments of contiguous 
     countries to collect such information on behalf of the United 
     States and share it in an acceptable automated format;
       (2) consider the various means of developing such a system, 
     including the use of pilot projects if appropriate, and 
     assess which means would be most appropriate in which 
     geographical regions;
       (3) evaluate how such a system could be implemented without 
     increasing border traffic congestion and border crossing 
     delays and, if any such system would increase border crossing 
     delays, evaluate to what extent such congestion or delays 
     would increase; and
       (4) estimate the length of time that would be required for 
     any such system to be developed and implemented.

     SEC. 5. INCREASED RESOURCES FOR BORDER CONTROL AND 
                   ENFORCEMENT.

       (a) Increased Number of INS Inspectors at the Land 
     Borders.--The Attorney General in each of fiscal years 1998, 
     1999, and 2000 shall increase by not less than 300 the number 
     of full-time inspectors assigned to active duty at the land 
     borders of the United States by the Immigration and 
     Naturalization Service, above the number of such positions 
     for which funds were made available for the preceding fiscal 
     year. Not less than one-half of the inspectors added under 
     the preceding sentence in each fiscal year shall be assigned 
     to the northern border of the United States.
       (b) Increased Number of Customs Inspectors at the Land 
     Borders.--The Secretary of the Treasury in each of fiscal 
     years 1998, 1999, and 2000 shall increase by not less than 
     150 the number of full-time inspectors assigned to active 
     duty at the land borders of the United States by the Customs 
     Service, above the number of such positions for which funds 
     were made available for the preceding fiscal year. One-half 
     of the inspectors added under the preceding sentence in each 
     fiscal year shall be assigned to the northern border and one-
     half to the southern border of the United States.

                               H.R. 2578

                         Offered By: Mr. Pombo

       Amendment No. 2: Page 2, after line 22, insert the 
     following:

     SEC. 3. QUALIFICATIONS FOR DESIGNATION AS PILOT PROGRAM 
                   COUNTRY.

       Section 217(c)(2) of the Immigration and Nationality Act (8 
     U.S.C. 1187(c)(2)) is amended to read as follows:
       ``(2) Qualifications.--Except as provided in subsection 
     (g), a country may not be designated as a pilot program 
     country unless the following requirements are met:
       ``(A) Low nonimmigrant visa refusal rate.--Either--
       ``(i) the average number of refusals of nonimmigrant 
     visitor visas for nationals of that country during--
       ``(I) the two previous full fiscal years was less than 2.0 
     percent of the total number of nonimmigrant visitor visas for 
     nationals of that country which were granted or refused 
     during those years; and
       ``(II) either of such two previous full fiscal years was 
     less than 2.5 percent of the total number of nonimmigrant 
     visitor visas for nationals of that country which were 
     granted or refused during that year; or
       ``(ii) such refusal rate for nationals of that country 
     during the previous full fiscal year was less than 3.0 
     percent.
       ``(B) Machine readable passport program.--The government of 
     the country certifies that it has or is in the process of 
     developing a program to issue machine-readable passports to 
     its citizens.
       ``(C) Law enforcement interests.--The Attorney General 
     determines that the United States law enforcement interests 
     would not be compromised by the designation of the 
     country.''.
       Amend the title so as to read: ``A bill to amend the 
     Immigration and Nationality Act to modify and extend the visa 
     waiver pilot program, and to provide for the collection of 
     data with respect to the number of nonimmigrants who remain 
     in the United States after the expiration of the period of 
     stay authorized by the Attorney General.''.

                               H.R. 2578

                     Offered By: Mr. Smith of Texas

       Amendment No. 3: Page 2, strike lines 1 through 5 and 
     insert the following:

     SECTION 1. EXTENSION OF VISA WAIVER PILOT PROGRAM.

       Section 217(f) of the Immigration and Naturalization Act is 
     amended by striking ``1998.'' and inserting ``2000.''.

                               H.R. 2578

                       Offered By: Mr. Underwood

       Amendment No. 4: Page 2, after line 22, insert the 
     following:

     SEC. 3. VISA WAIVER PILOT PROGRAM FOR PHILIPPINE NATIONALS 
                   VISITING GUAM.

       (a) Establishment of Pilot Program.--The Attorney General 
     and the Secretary of State shall establish a pilot program 
     (hereinafter in this section referred to as the ``pilot 
     program'') under which the requirement of section 
     212(a)(7)(B)(i)(II) of the Immigration and Nationality Act (8 
     U.S.C. 1182(a)(7)(B)(i)(II)) may be waived by the Attorney 
     General, in consultation with the Secretary of State, and in 
     accordance with this section, in the case of an alien who 
     meets the following requirements:
       (1) Seeking entry into Guam for 15 days or less.--The alien 
     is applying for admission during the pilot program period 
     (described in subsection (d)) as a nonimmigrant visitor 
     (described in section 101(a)(15)(B) of the Immigration and 
     Nationality Act (8 U.S.C. 1101(a)(15)(B))) and solely for 
     entry into and stay on Guam for a period not to exceed 15 
     days.
       (2) National of philippines.--The alien is a national of, 
     and presents a passport issued by, the Republic of the 
     Philippines.
       (3) Family obligation.--The alien before the time of such 
     admission completes an immigration form stating that the 
     application for admission is occasioned by a family 
     obligation involving an occurrence such as the illness or 
     death of a close relative or other family need.
       (4) Attesting sponsor.--The alien before the time of such 
     admission submits an attestation executed by a sponsor of the 
     alien, in which the sponsor attests, under penalty of perjury 
     and on a form designated or established by the Attorney 
     General by regulation, that--
       (A) the sponsor is a national of the United States residing 
     on Guam;
       (B) the sponsor is a spouse, parent, grandparent, aunt, 
     uncle, brother, sister, son, or daughter of the alien; and
       (C) the trip is occasioned by a family obligation described 
     in paragraph (3).
       (5) Executes immigration forms.--The alien before the time 
     of such admission completes such other immigration forms 
     (consistent with this section) as the Attorney General may 
     establish.
       (6) Not a safety threat.--The alien has been determined not 
     to represent a threat to the welfare, health, safety, or 
     security of the United States.
       (7) No previous violation.--If the alien previously was 
     admitted without a visa under this section, the alien must 
     not have failed to comply with the conditions of any previous 
     admission as such a nonimmigrant.
       (8) Round-trip ticket.--The alien is in possession of a 
     round-trip transportation ticket (unless this requirement is 
     waived by the Attorney General under regulations).
       (b) Waiver of Rights.--An alien may not be provided a 
     waiver under the pilot program unless the alien has waived 
     any right--
       (1) to review or appeal under the Immigration and 
     Nationality Act of an immigration officer's determination as 
     to the admissibility of the alien at the port of entry into 
     Guam; or
       (2) to contest, other than on the basis of an application 
     for asylum, any action for removal of the alien.
       (c) Limitation.--The total number of nationals of the 
     Republic of the Philippines who are admitted for entry into 
     Guam pursuant to a waiver under this section may not exceed 
     100 during any calendar month.
       (d) Pilot Program Period.--
       (1) In general.--Except as provided in paragraph (2), the 
     pilot program period described in this subsection is the 12-
     month period beginning on the first day of the implementation 
     of the pilot program.
       (2) Termination due to high overstay rate.--
       (A) In general.--The pilot program period shall terminate 
     upon a determination by the Attorney General that the 
     overstay rate (defined in subparagraph (B)) with respect to 
     any calendar month exceeds 20 percent. The termination under 
     the preceding sentence shall take effect on the first day of 
     the first month following the month in which the 
     determination is made.
       (B) Overstay rate.--For purposes of this paragraph, the 
     term ``overstay rate'' means the percentage which--

[[Page H1447]]

       (i) the total number of nationals of the Republic of the 
     Philippines who were admitted for entry into Guam pursuant to 
     a waiver under this section during the most recent month for 
     which data are available, and who violated the terms of such 
     admission; bears to
       (ii) the total number of nationals of such country who were 
     admitted for entry into Guam pursuant to a waiver under this 
     section during such month.
       (e) Enforcement and Reporting.--
       (1) Memorandum of understanding.--Prior to the 
     implementation of the pilot program, the Attorney General and 
     the Government of Guam shall enter into a memorandum of 
     understanding setting forth their respective obligations with 
     respect to the program's operation. The memorandum shall 
     contain provisions sufficient to ensure that the requirements 
     of this section are enforced effectively, including 
     provisions ensuring that the arrival and departure control 
     system on Guam--
       (A) will collect a record of departure for every alien who 
     was admitted pursuant to a waiver under this section, and 
     match the record of departure with the record of the alien's 
     arrival in Guam; and
       (B) will enable the Attorney General to identify aliens who 
     remain on Guam beyond the period authorized by the Attorney 
     General under this section.
       (2) Reporting on aliens overstaying period of lawful 
     admission.--The memorandum under paragraph (1) shall require 
     the Government of Guam to report to the Attorney General in a 
     timely manner (but not less than monthly) any information, in 
     addition to the information described in paragraph (1), that 
     the Government of Guam may acquire with respect to aliens 
     admitted pursuant to a waiver under this section who remain 
     on Guam beyond the period authorized by the Attorney General 
     under this section.
       (f) Inclusion of Philippines in Guam-Only Visa Waiver 
     Program.--
       (1) Program review.--Upon the termination of the pilot 
     program under subsection (d)(1), the Attorney General shall 
     conduct a review of the success of the program and shall 
     determine whether the overstay rates (as defined in 
     subsection (d)(2)(B)) for the months comprising the pilot 
     program period were excessive. The Attorney General shall 
     complete the review, and shall issue the determination, not 
     later than 6 months after the termination of the pilot 
     program under subsection (d)(1).
       (2) Determination of success.--Upon the issuance of a 
     determination by the Attorney General under paragraph (1) 
     that the overstay rates, when considered together, were not 
     excessive, the Republic of the Philippines shall be deemed to 
     be a geographic area that meets the eligibility criteria for 
     inclusion in the visa waiver program under section 212(l) of 
     the Immigration and Nationality Act (8 U.S.C. 1182(l)).
       (g) Definitions.--Except as otherwise provided in this 
     section, the terms used in this section shall have the 
     meaning given such terms in section 101(a) of the Immigration 
     and Nationality Act (8 U.S.C. 1101(a)).

                               H.R. 2589

                     Offered By: Mr. Sensenbrenner

       Amendment No. 1: Page 1, insert before section 1 the 
     following:

                   TITLE I--COPYRIGHT TERM EXTENSION

       Strike section 1 and insert the following:

     SEC. 101. SHORT TITLE.

       This title may be referred to as the ``Copyright Term 
     Extension Act''.

       Redesignate sections 2 through 5 as sections 102 through 
     105, respectively.

       In section 105, as so redesignated, strike ``this Act'' and 
     insert ``this title''.

       Strike section 6 and insert the following:

     SEC. 106. EFFECTIVE DATE.

       This title and the amendments made by this title shall take 
     effect on the date of the enactment of this Act.

       Add at the end the following:

                       TITLE II--MUSIC LICENSING

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Fairness in Musical 
     Licensing Act of 1998''.

     SEC. 202. EXEMPTION OF CERTAIN MUSIC USES FROM COPYRIGHT 
                   PROTECTION.

       (a) Business Exemption.--Section 110(5) of title 17, United 
     States Code, is amended to read as follows:
       ``(5) communication by electronic device of a transmission 
     embodying a performance or display of a nondramatic musical 
     work by the public reception of a broadcast, cable, 
     satellite, or other transmission, if--
       ``(A)(i) the rooms or areas within the establishment where 
     the transmission is intended to be received by the general 
     public contains less than 3,500 square feet, excluding any 
     space used for customer parking; or
       ``(ii) the rooms or areas within the establishment where 
     the transmission is intended to be received by the general 
     public contains 3,500 square feet or more, excluding any 
     space used for customer parking, if--
       ``(I) in the case of performance by audio means only, the 
     performance is transmitted by means of a total of not more 
     than 6 speakers (excluding any speakers in the device 
     receiving the communication), of which not more than 4 
     speakers are located in any 1 room or area; or
       ``(II) in the case of a performance or display by visual or 
     audiovisual means, any visual portion of the performance or 
     display is communicated by means of not more than 2 audio 
     visual devices, if no such audio visual device has a diagonal 
     screen size greater than 55 inches, and any audio portion of 
     the performance or display is transmitted by means of a total 
     of not more than 6 speakers (excluding any speakers in the 
     device receiving the communication), of which not more than 4 
     speakers are located in any 1 room or area;
       ``(B) no direct charge is made to see or hear the 
     transmission;
       ``(C) the transmission is not further transmitted to the 
     public beyond the establishment where it is received; and
       ``(D) the transmission is licensed.''.
       (b) Exemption Relating to Promotion.--Section 110(7) of 
     title 17, United States Code, is amended--
       (1) by striking ``a vending'' and inserting ``an'';
       (2) by striking ``sole'';
       (3) by inserting ``or of the audio, video, or other devices 
     utilized in the performance,'' after ``phonorecords of the 
     work,''; and
       (4) by striking ``and is within the immediate area where 
     the sale is occurring''.

     SEC. 203. BINDING ARBITRATION OF RATE DISPUTES INVOLVING 
                   PERFORMING RIGHTS SOCIETIES.

       (a) In General.--Section 504 of title 17, United States 
     Code, is amended by adding at the end the following new 
     subsection:
       ``(d) Performing Rights Societies; Binding Arbitration.--
       ``(1) Arbitration of disputes prior to court action.--
       ``(A) Arbitration.--(i) If a general music user and a 
     performing rights society are unable to agree on the 
     appropriate rate or fee to be paid for the user's past or 
     future performance of musical works in the repertoire of the 
     performing rights society, the general music user shall, in 
     lieu of any other dispute-resolution mechanism established by 
     any judgment or decree governing the operation of the 
     performing rights society, be entitled to binding arbitration 
     of such disagreement pursuant to the rules of the American 
     Arbitration Association. The music user may initiate such 
     arbitration.
       ``(ii) The arbitrator in such binding arbitration shall 
     determine a fair and reasonable rate or fee for the general 
     music user's past and future performance of musical works in 
     such society's repertoire and shall determine whether the 
     user's past performances of such musical works, if any, 
     infringed the copyrights of works in the society's 
     repertoire. If the arbitrator determines that the general 
     music user's past performances of such musical works 
     infringed the copyrights of works in the society's 
     repertoire, the arbitrator shall impose a penalty for such 
     infringement. Such penalty shall not exceed the arbitrator's 
     determination of the fair and reasonable license fee for the 
     performances at issue.
       ``(B) Definitions.--(i) For purposes of this paragraph, a 
     `general music user' is any person who performs musical works 
     publicly but is not engaged in the transmission of musical 
     works to the general public or to subscribers through 
     broadcast, cable, satellite, or other transmission.
       ``(ii) For purposes of this paragraph, transmissions within 
     a single commercial establishment or within establishments 
     under common ownership or control are not transmissions to 
     the general public.
       ``(iii) For purposes of clause (ii), an `establishment' is 
     a retail business, restaurant, bar, inn, tavern, or any other 
     place of business in which the public may assemble.
       ``(C) Enforcement of arbitrator's determinations.--An 
     arbitrator's determination under this paragraph is binding on 
     the parties and may be enforced pursuant to sections 9 
     through 13 of title 9.
       ``(2) Court-annexed arbitration.--(A) In any civil action 
     brought against a general music user, as defined in paragraph 
     (1) for infringement of the right granted in section 106(4) 
     involving a musical work that is in the repertoire of a 
     performing rights society, if the general music user admits 
     the prior public performance of one or more works in the 
     repertoire of the performing rights society but contests the 
     rate or the amount of the license fee demanded by such 
     society for such performance, the dispute shall, if requested 
     by the general music user, be submitted to arbitration under 
     section 652(e) of title 28. In such arbitration proceeding, 
     the arbitrator shall determine the appropriate rate and 
     amount owed by the music user to the performing rights 
     society for all past public performances of musical works in 
     the society's repertoire. The amount of the license fee shall 
     not exceed two times the amount of the blanket license fee 
     that would be applied by the society to the music user for 
     the year or years in which the performances occurred. In 
     addition, the arbitrator shall, if requested by the music 
     user, determine a fair and reasonable rate or license fee for 
     the music user's future public performances of the musical 
     works in such society's repertoire.
       ``(B) As used in this paragraph, the term `blanket license' 
     means a license provided by a performing rights society that 
     authorizes the unlimited performance of musical works in the 
     society's repertoire, for a fee that does not vary with the 
     quantity or type of performances of musical works in the 
     society's repertoire.
       ``(3) Term of license fee determination.--In any 
     arbitration proceeding initiated under this subsection, the 
     arbitrator's determination of a fair and reasonable rate or 
     license fee for the performance of the music in the 
     repertoire of the performing rights society

[[Page H1448]]

     concerned shall apply for a period of not less than 3 years 
     nor more than 5 years after the date of the arbitrator's 
     determination.''.
       (b) Actions That Shall Be Referred to Arbitration.--Section 
     652 of title 28, United States Code, is amended by adding at 
     the end the following:
       ``(e) Actions That Shall Be Referred to Arbitration.--In 
     any civil action against a general music user for 
     infringement of the right granted in section 106(4) of title 
     17 involving a musical work that is in the repertoire of a 
     performing rights society, if the general music user admits 
     the public performance of any musical work in the repertoire 
     of the performing rights society but contests the rate or the 
     amount of the license fee demanded by the society for such 
     performance, the district court shall, if requested by the 
     general music user, refer the dispute to arbitration, which 
     shall be conducted in accordance with section 504(d)(2) of 
     title 17. Each district court shall establish procedures by 
     local rule authorizing the use of arbitration under this 
     subsection. The definitions set forth in title 17 apply to 
     the terms used in this subsection.''.

     SEC. 204. VICARIOUS LIABILITY PROHIBITED.

       Section 501 of title 17, United States Code, is amended by 
     adding at the end the following:
       ``(f) A landlord, an organizer or sponsor of a convention, 
     exposition, or meeting, a facility owner, or any other person 
     making space available to another party by contract, shall 
     not be liable under any theory of vicarious or contributory 
     infringement with respect to an infringing public performance 
     of a copyrighted work by a tenant, lessee, subtenant, 
     sublessee, licensee, exhibitor, or other user of such space 
     on the ground that--
       ``(1) a contract for such space provides the landlord, 
     organizer or sponsor, facility owner, or other person a right 
     or ability to control such space and compensation for the use 
     of such space; or
       ``(2) the landlord, organizer or sponsor, facility owner, 
     or other person has or had at the time of the infringing 
     performance actual control over some aspects of the use of 
     such space, if the contract for the use of such space 
     prohibits infringing public performances and the landlord, 
     organizer or sponsor, facility owner, or other person does 
     not exercise control over the selection of works 
     performed.''.

     SEC. 205. CONFORMING AMENDMENTS.

       Section 101 of title 17, United States Code, is amended by 
     inserting after the undesignated paragraph relating to the 
     definition of ``perform'' the following:
       ``A `performing rights society' is an association, 
     corporation, or other entity that licenses the public 
     performance of nondramatic musical works on behalf of 
     copyright owners of such works, such as the American Society 
     of Composers, Authors, and Publishers, Broadcast Music, Inc., 
     and SESAC, Inc. The `repertoire' of a performing rights 
     society consists of those works for which the society 
     provides licenses on behalf of the owners of copyright in the 
     works.''.

     SEC. 206. CONSTRUCTION OF TITLE.

       Except as provided in section 504(d)(1) of title 17, United 
     States Code, as added by section 203(a) of this Act, nothing 
     in this title shall be construed to relieve any performing 
     rights society (as defined in section 101 of title 17, United 
     States Code) of any obligation under any consent decree, 
     State statute, or other court order governing its operation, 
     as such statute, decree, or order is in effect on the date of 
     the enactment of this Act, as it may be amended after such 
     date, or as it may be enacted, issued, or agreed to after 
     such date.

     SEC. 207. EFFECTIVE DATE.

       This title and the amendments made by this title shall take 
     effect on the date of the enactment of this Act, and shall 
     apply to actions filed on or after such date.

                               H.R. 2589

                         Offered By: Mr. Coble

       Amendment No. 2: Page 4, line 9, strike ``of 1997''.
       Page 4, line 24, strike ``of 1997''.
       Page 5, line 12, strike ``of 1997''.
       Page 6, line 4, strike ``of 1997''.
       Page 6, strike line 17 and all that follows through page 7, 
     line 4 and insert the following:
       ``(D) In the event that the author's widow or widower, 
     children, and grandchildren are not living, the author's 
     executor, administrator, personal representative, or trustee 
     shall own the author's entire termination interest.''.
       Insert the following after section 5 and redesignate the 
     succeeding section accordingly:

     SEC. 6. ASSUMPTION OF CONTRACTUAL OBLIGATIONS RELATED TO 
                   TRANSFERS OF RIGHTS IN MOTION PICTURES.

       (a) In General.--Part VI of title 28, United States Code, 
     is amended by adding at the end the following new chapter:

      ``CHAPTER 180--ASSUMPTION OF CERTAIN CONTRACTUAL OBLIGATIONS

``Sec.
``4001. Assumption of contractual obligations related to transfers of 
              rights in motion pictures.

     ``Sec. 4001. Assumption of contractual obligations related to 
       transfers of rights in motion pictures

       ``(a) Assumption of Obligations.--In the case of a transfer 
     of copyright ownership in a motion picture (as defined in 
     section 101 of title 17) that is produced subject to 1 or 
     more collective bargaining agreements negotiated under the 
     laws of the United States, if the transfer is executed on or 
     after the effective date of this Act and is not limited to 
     public performance rights, the transfer instrument shall be 
     deemed to incorporate the assumption agreements applicable to 
     the copyright ownership being transferred that are required 
     by the applicable collective bargaining agreement, and the 
     transferee shall be subject to the obligations under each 
     such assumption agreement to make residual payments and 
     provide related notices, accruing after the effective date of 
     the transfer and applicable to the exploitation of the rights 
     transferred, and any remedies under each such assumption 
     agreement for breach of those obligations, as those 
     obligations and remedies are set forth in the applicable 
     collective bargaining agreement, if--
       ``(1) the transferee knows or has reason to know at the 
     time of the transfer that such collective bargaining 
     agreement was or will be applicable to the motion picture; or
       ``(2) in the event of a court order confirming an 
     arbitration award against the transferor under the collective 
     bargaining agreement, the transferor does not have the 
     financial ability to satisfy the award within 90 days after 
     the order is issued.
       ``(b) Failure To Notify.--If the transferor under 
     subsection (a) fails to notify the transferee under 
     subsection (a) of applicable collective bargaining 
     obligations before the execution of the transfer instrument, 
     and subsection (a) is made applicable to the transferee 
     solely by virtue of subsection (a)(2), the transferor shall 
     be liable to the transferee for any damages suffered by the 
     transferee as a result of the failure to notify.
       ``(c) Determination of Disputes and Claims.--Any dispute 
     concerning the application of subsection (a) and any claim 
     made under subsection (b) shall be determined by an action in 
     United States district court, and the court in its discretion 
     may allow the recovery of full costs by or against any party 
     and may also award a reasonable attorney's fee to the 
     prevailing party as part of the costs.''.
       (b) Conforming Amendment.--The table of chapters for part 
     VI of title 28, United States Code, is amended by adding at 
     the end the following:

``180. Assumption of Certain Contractual Obligations........4001''.....

                               H.R. 2589

                        Offered by: Mr. McCollum

            (To the Amendment Offered by: Mr. Sensenbrenner)

       Amendment No. 3: In lieu of the matter proposed to be 
     inserted as title II, insert the following:

   TITLE II--MUSIC LICENSING EXEMPTION FOR FOOD SERVICE OR DRINKING 
                             ESTABLISHMENTS

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``Fairness In Music 
     Licensing Act of 1998.''

     SEC. 202. EXEMPTION.

       Section 110(5) of title 17, United States Code is amended--
       (1) by striking ``(5)'' and inserting ``(5)(A) except as 
     provided in subparagraph (B),'';
       (2) by adding at the end the following:
       ``(B) communication by a food service or drinking 
     establishment of a transmission or retransmission embodying a 
     performance or display of a nondramatic musical work intended 
     to be received by the general public, originated by a radio 
     or television broadcast station licensed by the Federal 
     Communications Commission, or, if an audiovisual 
     transmission, by a cable system or satellite carrier, if--
       ``(i) either the establishment in which the communication 
     occurs has less than 3500 gross square feet of space 
     (excluding space used for customer parking), or the 
     establishment in which the communication occurs has 3500 
     gross square feet of space or more (excluding space used for 
     customer parking) and--

       ``(I) if the performance is by audio means only, the 
     performance is communicated by means of a total of not more 
     than 6 loudspeakers, of which not more than 4 loudspeakers 
     are located in any 1 room or adjoining outdoor space; or
       ``(II) if the performance or display is by audiovisual 
     means, any visual portion of the performance or display is 
     communicated by means of a total of not more than 4 
     audiovisual devices, of which not more than one audiovisual 
     device is located in any 1 room, and no such audiovisual 
     device has a diagonal screen size greater than 55 inches, and 
     any audio portion of the performance or display is 
     communicated by means of a total of not more than 6 
     loudspeakers, of which not more than 4 loudspeakers are 
     located in any 1 room or adjoining outdoor space;

       ``(ii) no direct charge is made to see or hear the 
     transmission or retransmission;
       ``(iii) the transmission or retransmission is not further 
     transmitted beyond the food service or drinking establishment 
     where it is received; and
       ``(iv) the transmission or retransmission is licensed by 
     the copyright owner of the work so publicly performed or 
     displayed;''; and
       (3) by adding after paragraph (10) the following:

     ``The exemptions provided under paragraph (5) shall not be 
     taken into account in any administrative, judicial, or other 
     governmental

[[Page H1449]]

     proceeding to set or adjust the royalties payable to 
     copyright owners for the public performance or display of 
     their works. Royalties payable to copyright owners for any 
     public performance or display of their works other than such 
     performances or displays as are exempted under paragraph (5) 
     shall not be diminished in any respect as a result of such 
     exemption''.

     SEC. 203. LICENSING BY PERFORMING RIGHTS SOCIETIES.

       (a) In General.--Chapter 5 of title 17, United States Code, 
     is amended by adding at the end the following:

     ``Sec. 512. determinations of reasonable license fee for 
       individual proprietors

       ``In the case of any performing rights society subject to a 
     consent decree which provides for the determination of 
     reasonable license fees to be charged by the performing 
     rights society, notwithstanding the provisions of that 
     consent decree, an individual proprietor who owns or operates 
     fewer than 3 food service or drinking establishments in which 
     nondramatic musical works are performed publicly and who 
     claims that any license agreement offered by that performing 
     rights society to the industry of which the individual 
     proprietor is a member is unreasonable in its license fee as 
     to that individual proprietor, shall be entitled to 
     determination of a reasonable license fee as follows:
       ``(1) The individual proprietor may commence such 
     proceeding for determination of a reasonable license fee by 
     filing an application in the applicable district court under 
     paragraph (2) that a rate disagreement exists and by serving 
     a copy of the application on the performing rights society 
     Such proceeding shall commence in the applicable district 
     court within 90 days after the service of such copy, except 
     that such 90-day requirement shall be subject to the 
     administrative requirements of the court.
       ``(2) The proceeding under paragraph (1) shall be held, at 
     the individual proprietor's election, in the judicial 
     district of the district court with jurisdiction over the 
     applicable consent decree or in that place of holding court 
     of a district court that is the seat of the Federal circuit 
     (other than the Court of Appeals for the Federal Circuit) in 
     which the proprietor's establishment is located.
       ``(3) Such proceeding shall be held before the judge of the 
     court with jurisdiction over the consent decree governing the 
     performing rights society. At the discretion of the court, 
     the proceeding shall be held before a special master or 
     magistrate judge appointed by such judge. Should that consent 
     decree provide for the appointment of an advisor or advisors 
     to the court for any purpose, any such advisor shall be the 
     special master so named by the court.
       ``(4) In any such proceeding, the industry rate, or, in the 
     absence of an industry rate, the most recent license fee 
     agreed to by the parties or determined by the court, shall be 
     presumed to have been reasonable at the time it was agreed to 
     or determined by the court. The burden of proof shall be on 
     the individual proprietor to establish the reasonableness of 
     any other fee it requests.
       ``(5) Pending the completion of such proceeding, the 
     individual proprietor shall have the right to perform 
     publicly the copyrighted musical compositions in the 
     repertoire of the performing rights society, and shall pay an 
     interim license fee, subject to retroactive adjustment when a 
     final fee has been determined, in an amount equal to the 
     industry rate, or, in the absence of an industry rate, the 
     amount of the most recent license fee agreed to by the 
     parties. Failure to pay such interim license fee shall result 
     in immediate dismissal of the proceeding, and the individual 
     proprietor shall then be deemed to have had no right to 
     perform the copyrighted musical compositions in the 
     repertoire of the performing rights society under this 
     section from the date it submitted its notice commencing the 
     proceeding.
       ``(6) Any decision rendered in such proceeding by a special 
     master or magistrate judge named under paragraph (3) shall be 
     reviewed by the presiding judge. Such proceeding, including 
     such review, shall be concluded within 6 months after its 
     commencement.
       ``(7) Any such final determination shall be binding only as 
     to the individual proprietor commencing the proceeding, and 
     shall not be applicable to any other proprietor or any other 
     performing rights society, and the performing rights society 
     shall be relieved of any obligation of nondiscrimination 
     among similarly situated music users that may be imposed by 
     the consent decree governing its operations.
       ``(8) For purposes of this section, the term `industry 
     rate' means the license fee a performing rights society has 
     agreed to with, or which has been determined by the court 
     for, a significant segment of the music user industry to 
     which the individual proprietor belongs.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 5 of title 17, United States Code, is 
     amended by adding after the item relating to section 511 the 
     following:

``512.Determinations of reasonable license fee for individual 
              proprietors.''.

     SEC. 204. DEFINITIONS.

       Section 101 of title 17, United States Code, is amended--
       (1) by inserting after the definition of ``display'' the 
     following:
       ``A `food service or drinking establishment' is a 
     restaurant, inn, bar, tavern, or any other similar place of 
     business in which the public or patrons assemble for the 
     primary purpose of being served food or drink, in which the 
     majority of the gross square feet of space is used for that 
     purpose, and in which nondramatic musical works are performed 
     publicly.'';
       (2) by inserting after the definition of ``fixed'' the 
     following:
       ``The `gross square feet of space' of a food service or 
     drinking establishment means the entire interior space of 
     that establishment and any adjoining outdoor space used to 
     serve patrons, whether on a seasonal basis or otherwise.'';
       (3) by inserting after the definition of ``perform'' the 
     following:
       ``A `performing rights society' is an association, 
     corporation, or other entity that licenses the public 
     performance of nondramatic musical works on behalf of 
     copyright owners of such works, such as the American Society 
     of Composers, Authors and Publishers (ASCAP), Broadcast 
     Music, Inc. (BMI), and SESAC, Inc.''; and
       (4) by inserting after the definition of ``pictorial, 
     graphic and sculptural works'' the following:
       ``A `proprietor' is an individual, corporation, 
     partnership, or other entity, as the case may be, that owns a 
     food service or drinking establishment. No owner or operator 
     of a radio or television station licensed by the Federal 
     Communications Commission, cable system or satellite carrier, 
     cable or satellite carrier service or programmer, Internet 
     service provider, online service provider, telecommunications 
     company, or any other such audio-visual service or programmer 
     now known or as may be developed in the future, commercial 
     subscription music service, or owner or operator of any other 
     transmission service, or owner of any other establishment in 
     which the service to the public of food or drink is not the 
     primary purpose, shall under any circumstances be deemed to 
     be a proprietor.''

     SEC. 205. CONSTRUCTION OF TITLE.

       Except as otherwise provided in this title, nothing in this 
     title shall be construed to relieve any performing rights 
     society of any obligation under any State or local statute, 
     ordinance, or law, or consent decree or other court order 
     governing its operation, as such statute, ordinance, law, 
     decree, or order is in effect on the date of the enactment of 
     this title, as it may be amended after such date, or as it 
     may be issued or agreed to after such date.

     SEC. 206. EFFECTIVE DATE.

       This title and the amendments made by this title shall take 
     effect 90 days after the date of the enactment of this title.