[Congressional Record Volume 144, Number 139 (Wednesday, October 7, 1998)]
[Senate]
[Pages S11794-S11796]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  COPYRIGHT TERM EXTENSION ACT OF 1998

                                 ______
                                 

                        HATCH AMENDMENT NO. 3782

  Mr. LOTT (for Mr. Hatch) proposed an amendment to the bill (S. 505) 
to amend the provisions of title 17, United States Code, with respect 
to the duration of copyright, and for other purposes; as follows:

       Strike all after the enacting clause and insert the 
     following:

                   TITLE I--COPYRIGHT TERM EXTENSION

     SEC. 101. SHORT TITLE.

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

     SEC. 102. DURATION OF COPYRIGHT PROVISIONS.

       (a) Preemption With Respect to Other Laws.--Section 301(c) 
     of title 17, United States Code, is amended by striking 
     ``February 15, 2047'' each place it appears and inserting 
     ``February 15, 2067''.
       (b) Duration of Copyright: Works Created on or After 
     January 1, 1978.--Section 302 of title 17, United States 
     Code, is amended--
       (1) in subsection (a) by striking ``fifty'' and inserting 
     ``70'';
       (2) in subsection (b) by striking ``fifty'' and inserting 
     ``70'';
       (3) in subsection (c) in the first sentence--
       (A) by striking ``seventy-five'' and inserting ``95''; and
       (B) by striking ``one hundred'' and inserting ``120''; and
       (4) in subsection (e) in the first sentence--
       (A) by striking ``seventy-five'' and inserting ``95'';
       (B) by striking ``one hundred'' and inserting ``120''; and
       (C) by striking ``fifty'' each place it appears and 
     inserting ``70''.
       (c) Duration of Copyright: Works Created but Not Published 
     or Copyrighted Before January 1, 1978.--Section 303 of title 
     17, United States Code, is amended in the second sentence by 
     striking ``December 31, 2027'' and inserting ``December 31, 
     2047''.
       (d) Duration of Copyright: Subsisting Copyrights.--
       (1) In general.--Section 304 of title 17, United States 
     Code, is amended--
       (A) in subsection (a)--
       (i) in paragraph (1)--

       (I) in subparagraph (B) by striking ``47'' and inserting 
     ``67''; and
       (II) in subparagraph (C) by striking ``47'' and inserting 
     ``67'';

       (ii) in paragraph (2)--

       (I) in subparagraph (A) by striking ``47'' and inserting 
     ``67''; and
       (II) in subparagraph (B) by striking ``47'' and inserting 
     ``67''; and

       (iii) in paragraph (3)--

       (I) in subparagraph (A)(i) by striking ``47'' and inserting 
     ``67''; and
       (II) in subparagraph (B) by striking ``47'' and inserting 
     ``67'';

       (B) by amending subsection (b) to read as follows:
       ``(b) Copyrights in Their Renewal Term at the Time of the 
     Effective Date of the Sonny Bono Copyright Term Extension 
     Act.--Any copyright still in its renewal term at the time 
     that the Sonny Bono Copyright Term Extension Act becomes 
     effective shall have a copyright term of 95 years from the 
     date copyright was originally secured.'';
       (C) in subsection (c)(4)(A) in the first sentence by 
     inserting ``or, in the case of a termination under subsection 
     (d), within the five-year period specified by subsection 
     (d)(2),'' after ``specified by clause (3) of this 
     subsection,''; and
       (D) by adding at the end the following new subsection:
       ``(d) Termination Rights Provided in Subsection (c) Which 
     Have Expired on or Before the Effective Date of the Sonny 
     Bono Copyright Term Extension Act.--In the case of any 
     copyright other than a work made for hire, subsisting in its 
     renewal term on the effective date of the Sonny Bono 
     Copyright Term Extension Act for which the termination right 
     provided in subsection (c) has expired by such date, where 
     the author or owner of the termination right has not 
     previously exercised such termination right, the exclusive or 
     nonexclusive grant of a transfer or license of the renewal 
     copyright or any right under it, executed before January 1, 
     1978, by any of the persons designated in subsection 
     (a)(1)(C) of this section, other than by will, is subject to 
     termination under the following conditions:
       ``(1) The conditions specified in subsection (c)(1), (2), 
     (4), (5), and (6) of this section apply to terminations of 
     the last 20 years of copyright term as provided by the 
     amendments made by the Sonny Bono Copyright Term Extension 
     Act.
       ``(2) Termination of the grant may be effected at any time 
     during a period of 5 years beginning at the end of 75 years 
     from the date copyright was originally secured.''.
       (2) Copyright amendments act of 1992.--Section 102 of the 
     Copyright Amendments Act of 1992 (Public Law 102-307; 106 
     Stat. 266; 17 U.S.C. 304 note) is amended--
       (A) in subsection (c)--
       (i) by striking ``47'' and inserting ``67'';
       (ii) by striking ``(as amended by subsection (a) of this 
     section)''; and
       (iii) by striking ``effective date of this section'' each 
     place it appears and inserting ``effective date of the Sonny 
     Bono Copyright Term Extension Act''; and
       (B) in subsection (g)(2) in the second sentence by 
     inserting before the period the following: ``, except each 
     reference to forty-seven years in such provisions shall be 
     deemed to be 67 years''.

     SEC. 103. TERMINATION OF TRANSFERS AND LICENSES COVERING 
                   EXTENDED RENEWAL TERM.

       Sections 203(a)(2) and 304(c)(2) of title 17, United States 
     Code, are each amended--
       (1) by striking ``by his widow or her widower and his or 
     her children or grandchildren''; and
       (2) by inserting after subparagraph (C) 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.''.

     SEC. 104. REPRODUCTION BY LIBRARIES AND ARCHIVES.

       Section 108 of title 17, United States Code, is amended--
       (1) by redesignating subsection (h) as subsection (i); and
       (2) by inserting after subsection (g) the following:
       ``(h)(1) For purposes of this section, during the last 20 
     years of any term of copyright of a published work, a library 
     or archives, including a nonprofit educational institution 
     that functions as such, may reproduce, distribute, display, 
     or perform in facsimile or digital form a copy or phonorecord 
     of such work, or portions thereof, for purposes of 
     preservation, scholarship, or research, if such library or 
     archives has first determined, on the basis of a reasonable 
     investigation, that none of the conditions set forth in 
     subparagraphs (A), (B), and (C) of paragraph (2) apply.
       ``(2) No reproduction, distribution, display, or 
     performance is authorized under this subsection if--
       ``(A) the work is subject to normal commercial 
     exploitation;
       ``(B) a copy or phonorecord of the work can be obtained at 
     a reasonable price; or
       ``(C) the copyright owner or its agent provides notice 
     pursuant to regulations promulgated by the Register of 
     Copyrights that either of the conditions set forth in 
     subparagraphs (A) and (B) applies.
       ``(3) The exemption provided in this subsection does not 
     apply to any subsequent uses by users other than such library 
     or archives.''.

     SEC. 105. VOLUNTARY NEGOTIATION REGARDING DIVISION OF 
                   ROYALTIES.

       It is the sense of the Congress that copyright owners of 
     audiovisual works for which the term of copyright protection 
     is extended by the amendments made by this title, and the 
     screenwriters, directors, and performers of those audiovisual 
     works, should negotiate in good faith in an effort to reach a 
     voluntary agreement or voluntary agreements with respect to 
     the establishment of a fund or other mechanism for the amount 
     of remuneration to be divided among the parties for the 
     exploitation of those audiovisual works.

     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.

[[Page S11795]]

   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. EXEMPTIONS.

       (a) Exemptions for Certain Establishments.--Section 110 of 
     title 17, United States Code is amended--
       (1) in paragraph (5)--
       (A) by striking ``(5)'' and inserting ``(5)(A) except as 
     provided in subparagraph (B),''; and
       (B) by adding at the end the following:
       ``(B) communication by an 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 as such by the Federal Communications 
     Commission, or, if an audiovisual transmission, by a cable 
     system or satellite carrier, if--
       ``(i) in the case of an establishment other than a food 
     service or drinking establishment, either the establishment 
     in which the communication occurs has less than 2000 gross 
     square feet of space (excluding space used for customer 
     parking and for no other purpose), or the establishment in 
     which the communication occurs has 2000 or more gross square 
     feet of space (excluding space used for customer parking and 
     for no other purpose) 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) in the case of a food service or drinking 
     establishment, either the establishment in which the 
     communication occurs has less than 3750 gross square feet of 
     space (excluding space used for customer parking and for no 
     other purpose), or the establishment in which the 
     communication occurs has 3750 gross square feet of space or 
     more (excluding space used for customer parking and for no 
     other purpose) 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;

       ``(iii) no direct charge is made to see or hear the 
     transmission or retransmission;
       ``(iv) the transmission or retransmission is not further 
     transmitted beyond the establishment where it is received; 
     and
       ``(v) the transmission or retransmission is licensed by the 
     copyright owner of the work so publicly performed or 
     displayed;''; and
       (2) 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 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''.
       (b) Exemption Relating to Promotion.--Section 110(7) of 
     title 17, United States Code, is amended by inserting ``or of 
     the audiovisual or other devices utilized in such 
     performance,'' after ``phonorecords of the work,''.

     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. Determination of reasonable license fees for 
       individual proprietors

       ``In the case of any performing rights society subject to a 
     consent decree which provides for the determination of 
     reasonable license rates or 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 7 non-publicly traded establishments in 
     which nondramatic musical works are performed publicly and 
     who claims that any license agreement offered by that 
     performing rights society is unreasonable in its license rate 
     or fee as to that individual proprietor, shall be entitled to 
     determination of a reasonable license rate or fee as follows:
       ``(1) The individual proprietor may commence such 
     proceeding for determination of a reasonable license rate or 
     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 shall be 
     presumed to have been reasonable at the time it was agreed to 
     or determined by the court. Such presumption shall in no way 
     affect a determination of whether the rate is being correctly 
     applied to the individual proprietor.
       ``(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 by paying an 
     interim license rate or fee into an interest bearing escrow 
     account with the clerk of the court, subject to retroactive 
     adjustment when a final rate or 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 rate 
     or fee agreed to by the parties.
       ``(6) Any decision rendered in such proceeding by a special 
     master or magistrate judge named under paragraph (3) shall be 
     reviewed by the judge of the court with jurisdiction over the 
     consent decree governing the performing rights society. 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) An individual proprietor may not bring more than one 
     proceeding provided for in this section for the determination 
     of a reasonable license rate or fee under any license 
     agreement with respect to any one performing rights society.
       ``(9) 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.Determination of reasonable license fees for individual 
              proprietors.''.

     SEC. 204. PENALTIES.

       Section 504 of title 17, United States Code, is amended by 
     adding at the end the following:
       ``(d) Additional Damages in Certain Cases.--In any case in 
     which the court finds that a defendant proprietor of an 
     establishment who claims as a defense that its activities 
     were exempt under section 110(5) did not have reasonable 
     grounds to believe that its use of a copyrighted work was 
     exempt under such section, the plaintiff shall be entitled 
     to, in addition to any award of damages under this section, 
     an additional award of two times the amount of the license 
     fee that the proprietor of the establishment concerned should 
     have paid the plaintiff for such use during the preceding 
     period of up to 3 years.''.

     SEC. 205. DEFINITIONS.

       Section 101 of title 17, United States Code, is amended--
       (1) by inserting after the definition of ``display'' the 
     following:
       ``An `establishment' is a store, shop, or any similar place 
     of business open to the general public for the primary 
     purpose of selling goods or services in which the majority of 
     the gross square feet of space that is nonresidential is used 
     for that purpose, and in which nondramatic musical works are 
     performed publicly.
       ``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

[[Page S11796]]

     that is nonresidential 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 an 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 
     an establishment, or a food service or drinking 
     establishment, except that 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, provider of online 
     services or network access or the operator of facilities 
     therefor, telecommunications company, or any other such audio 
     or audiovisual 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, shall under any circumstances be deemed to be a 
     proprietor.''.

     SEC. 206. 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 Act, as it may be amended after such date, or as it may 
     be issued or agreed to after such date.

     SEC. 207. EFFECTIVE DATE.

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

                          ____________________