[Congressional Record Volume 150, Number 132 (Wednesday, November 17, 2004)]
[House]
[Pages H9845-H9848]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   CORRECTING ENROLLMENT OF H.R. 1417

  Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and 
concur in the Senate concurrent resolution (S. Con. Res. 145) to 
correct the enrollment of H.R. 1417.
  The Clerk read as follows:

                            S. Con. Res. 145

       Resolved by the Senate (the House of Representatives 
     concurring), That in the enrollment of H.R. 1417, an Act to 
     amend title 17,

[[Page H9846]]

     United States Code, to replace copyright arbitration royalty 
     panels with Copyright Royalty Judges, and for other purposes 
     (the Copyright Royalty and Distribution Reform Act of 2004), 
     the Clerk of the House of Representatives shall make the 
     following corrections:
       (1) In section 801 of title 17, United States Code, as 
     amended by section 3(a) of H.R. 1417--
       (A) in subsection (b)(7)(A)--
       (i) in clause (i), strike ``the other participants'' and 
     insert ``participants''; and
       (ii) in clause (ii), strike ``any other participant 
     described in subparagraph (A)'' and insert ``any participant 
     described in clause (i)'';
       (B) in subsection (b)(7)(B), strike ``118(b) (2) or (3)'' 
     and insert ``118(b)(2)'';
       (C) in subsection (b)(8), insert a comma after ``802(g)''; 
     and
       (D) in subsection (c), strike ``As provided in section 
     801(f)(1), the'' and insert ``The''.
       (2) In section 802 of title 17, United States Code, as 
     amended by section 3(a) of H.R. 1417--
       (A) in subsection (a)(1), in the second sentence--
       (i) strike ``two Copyright'' and insert ``2 Copyright''; 
     and
       (ii) strike ``one shall'' and insert ``1 shall'';
       (B) in subsection (c)--
       (i) strike ``appointed the Chief Copyright'' and insert 
     ``appointed as the Chief Copyright''; and
       (ii) strike ``appointed Copyright'' and insert ``appointed 
     as Copyright''; and
       (C) in subsection (f)--
       (i) in paragraph (1)(A)(ii), strike ``14 days of receipt by 
     the Register of Copyrights of all'' and insert ``14 days 
     after the Register of Copyrights receives all'';
       (ii) in paragraph (1)(B)(i)--

       (I) strike ``The Register shall'' and insert ``The Register 
     of Copyrights shall'';
       (II) strike ``30 days of receipt by the Register of 
     Copyrights of all'' and insert ``30 days after the Register 
     of Copyrights receives all''; and
       (III) in the last sentence, insert ``to the Copyright 
     Royalty Judges'' after ``is timely delivered'';

       (iii) in paragraph (1)(D)--

       (I) insert after the second sentence the following: ``The 
     Register of Copyrights shall issue such written decision not 
     later than 60 days after the date on which the final 
     determination by the Copyright Royalty Judges is issued.'';
       (II) in the following sentence, insert a comma after ``such 
     written decision'';
       (III) strike ``section 802(f)(1)(D)'' and insert ``this 
     subparagraph'';
       (IV) strike ``notification and undertakes to consult with'' 
     and insert ``notification to, and undertakes to consult 
     with,''; and
       (V) strike ``fails within reasonable period after receipt 
     of such notification'' and insert ``fails, within a 
     reasonable period after receiving such notification,''.

       (3) In section 803 of title 17, United States Code, as 
     amended by section 3(a) of H.R. 1417--
       (A) in subsection (a)(1), strike ``Librarian of Congress, 
     copyright arbitration royalty panels,'' and insert ``the 
     Librarian of Congress,'';
       (B) in subsection (b)--
       (i) in paragraph (1), amend subparagraph (A)(i) to read as 
     follows:
       ``(A) Call for petitions to participate.--(i) The Copyright 
     Royalty Judges shall cause to be published in the Federal 
     Register notice of commencement of proceedings under this 
     chapter, calling for the filing of petitions to participate 
     in a proceeding under this chapter for the purpose of making 
     the relevant determination under section 111, 112, 114, 115, 
     116, 118, 119, 1004, or 1007, as the case may be--
       ``(I) promptly upon a determination made under section 
     804(a);
       ``(II) by no later than January 5 of a year specified in 
     paragraph (2) of section 804(b) for the commencement of 
     proceedings;
       ``(III) by no later than January 5 of a year specified in 
     subparagraph (A) or (B) of paragraph (3) of section 804(b) 
     for the commencement of proceedings, or as otherwise provided 
     in subparagraph (A) or (C) of such paragraph for the 
     commencement of proceedings;
       ``(IV) as provided under section 804(b)(8); or
       ``(V) by no later than January 5 of a year specified in any 
     other provision of section 804(b) for the filing of petitions 
     for the commencement of proceedings, if a petition has not 
     been filed by that date.'';
       (ii) in clause (ii) of paragraph (1)(A)--

       (I) strike ``proceeding, under clause (i)'' and insert 
     ``proceeding under clause (i)''; and
       (II) strike ``section 803(b)(3)'' and insert ``paragraph 
     (3)'';

       (iii) in paragraph (4)(A), strike ``a participant in the 
     proceeding asserts a claim in the amount of'' and insert 
     ``the contested amount of a claim is'';
       (iv) in paragraph (6)(C)--

       (I) in clause (iv), insert a comma after ``orders'';
       (II) in clause (v), strike ``according to'' and insert ``in 
     accordance with''; and
       (III) in clause (vi)(I), strike ``absent the discovery 
     sought'' and insert ``, absent the discovery sought,'';

       (v) in clause (vii), strike ``interrogatories and'' and 
     insert ``interrogatories, and''; and
       (vi) in clause (ix)--

       (I) in the first sentence, insert a comma after ``give 
     testimony'' and insert a comma after ``inspection of 
     documents or tangible things''; and
       (II) in the last sentence, strike ``subparagraph'' and 
     insert ``clause'';

       (C) in subsection (c)--
       (i) in paragraph (1), strike ``(b)(3)(C)(x)'' and insert 
     ``(b)(6)(C)(x)'';
       (ii) in paragraph (2)--

       (I) in subparagraph (A)--

       (aa) insert ``in a proceeding'' after ``a participant''; 
     and
       (bb) strike ``a proceeding is issued'' and insert ``the 
     proceeding is issued'';

       (II) in subparagraph (B), strike ``their initial 
     determination concerning rates and terms to the participants 
     in the proceeding'' and insert ``to the participants in the 
     proceeding their initial determination concerning rates and 
     terms''; and
       (III) in subparagraph (C), strike ``except as provided 
     under subsection (d)(1)'' and insert ``except that 
     nonparticipation may give rise to the limitations with 
     respect to judicial review provided for in subsection 
     (d)(1)''; and

       (iii) in paragraph (6), strike ``Following review of the 
     determination by the Register of Copyrights under section 
     802(f)(1)(D)'' and insert ``By no later than the end of the 
     60-day period provided in section 802(f)(1)(D)''; and
       (D) in the second sentence of subsection (d)(2)(A), strike 
     ``transmission service'' and insert ``licensee''.
       (4) In section 5(b)(1)--
       (A) in subparagraph (A), strike ``and'' at the end;
       (B) strike subparagraph (B); and
       (C) redesignate subparagraphs (C) and (D) as subparagraphs 
     (B) and (C), respectively.
       (5) In the amendment made by section 5(b)(1)(A)--
       (A) strike ``5-year periods'' and insert ``5-year period''; 
     and
       (B) strike ``such other periods'' and insert ``such other 
     period''.
       (6) Strike paragraph (3) of section 5(b) and insert the 
     following:
       (3) in paragraph (5), by striking ``determination by a 
     copyright arbitration royalty panel or decision by the 
     Librarian of Congress'' and inserting ``decision by the 
     Librarian of Congress or determination by the Copyright 
     Royalty Judges'';
       (7) In the amendment made by section 5(c)(1)(A)(i)--
       (A) strike ``5-year periods'' and insert ``the 5-year 
     period''; and
       (B) strike ``different transitional periods are provided in 
     section 804(b), or such periods'' and insert ``a different 
     transitional period is provided under section 6(b)(3) of the 
     Copyright Royalty and Distribution Reform Act of 2004, or 
     such other period''.
       (8) In the amendment made by section 5(c)(1)(B)(i), strike 
     `in section 804(b)'' and insert ``under section 6(b)(3) of 
     the Copyright Royalty and Distribution Reform Act of 2004''.
       (9) In the amendment made by section 5(c)(2)(A)--
       (A) strike ``5-year periods'' and insert ``the 5-year 
     period''; and
       (B) strike ``different transitional periods are provided in 
     section 804(b), or such periods'' and insert ``a different 
     transitional period is provided under section 6(b)(3) of the 
     Copyright Royalty and Distribution Reform Act of 2004, or 
     such other period''.
       (10) In the amendment made by section 5(c)(2)(B)(i), strike 
     `in section 804(b)'' and insert ``under section 6(b)(3) of 
     the Copyright Royalty and Distribution Reform Act of 2004''.
       (11) Strike paragraph (3) of section 5(c) and insert the 
     following:
       (3) in paragraph (3), by striking ``determination by a 
     copyright arbitration royalty panel or decision by the 
     Librarian of Congress'' and inserting ``decision by the 
     Librarian of Congress or determination by the Copyright 
     Royalty Judges''; and
       (12) In section 5(c)(4)(B), insert ``of subparagraph (A) 
     the following:'' after ``by adding after the first 
     sentence''.
       (13) In the amendment made by section 5(d)(3)(A), strike 
     ``during periods'' and insert ``during the period''.
       (14) In section 5(d)(4)--
       (A) strike ``and'' at the end of subparagraph (B);
       (B) add ``and'' after the semicolon at the end of 
     subparagraph (C); and
       (C) add after subparagraph (C) the following:
       (D) in the last sentence, by striking ``Librarian of 
     Congress'' and inserting ``Copyright Royalty Judges''.
       (15) In the amendment made by section 5(d)(5)(A)(i), strike 
     ``, Copyright Royalty Judges, or a copyright arbitration 
     royalty panel to the extent those determinations were 
     accepted by the Librarian of Congress'' and insert ``or 
     Copyright Royalty Judges''.
       (16) In the amendment made by section 5(f)(1)(B)--
       (A) strike ``, a copyright arbitration royalty panel,''; 
     and
       (B) strike ``to the extent that they were accepted by the 
     Librarian of Congress,''.
       (17) In section 5, insert the following after subsection 
     (g) and redesignate succeeding subsections accordingly:
       (h) Ratemaking for Satellite Carriers.--Section 119(c) of 
     title 17, United States Code, is amended--
       (1) in paragraph (2)--
       (A) in subparagraph (B), by striking ``Librarian of 
     Congress'' and inserting ``Copyright Royalty Judges''; and
       (B) in subparagraph (C), by striking ``Register of 
     Copyrights shall prescribe'' and inserting ``Copyright 
     Royalty Judges shall prescribe as provided in section 
     803(b)(6); and
       (2) in paragraph (3)--
       (A) in subparagraph (A)--

[[Page H9847]]

       (i) by striking ``arbitration proceedings'' and inserting 
     ``proceedings''; and
       (ii) by striking ``arbitration proceeding'' and inserting 
     ``proceedings'';
       (B) in subparagraph (B)--
       (i) by striking ``copyright arbitration royalty panel 
     appointed under chapter 8'' and inserting ``Copyright Royalty 
     Judges''; and
       (ii) by striking ``panel shall base its decision'' and 
     inserting ``Copyright Royalty Judges shall base their 
     determination''; and
       (C) in subparagraph (C)--
       (i) in the heading, by striking ``decision of arbitration 
     panel or order of librarian'' and inserting ``determination 
     under chapter 8''; and
       (ii) by striking clauses (i) and (ii) and inserting the 
     following:
       ``(i) is made by the Copyright Royalty Judges pursuant to 
     this paragraph and becomes final, or
       ``(ii) is made by the court on appeal under section 
     803(d)(3),''.
       (18) In the first sentence of section 6(b)(1)--
       (A) strike ``date of enactment of this Act'' and insert 
     ``effective date provided in subsection (a)''; and
       (B) strike ``such date of enactment'' and insert ``such 
     effective date''.
       (19) Strike paragraph (2) of section 6(b) and insert the 
     following:
       (2) Certain royalty rate proceedings.--Notwithstanding 
     paragraph (1), the amendments made by this Act shall not 
     affect proceedings to determine royalty rates pursuant to 
     section 119(c) of title 17, United States Code, that are 
     commenced before January 31, 2006.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Wisconsin (Mr. Sensenbrenner) and the gentleman from California (Mr. 
Berman) each will control 20 minutes.
  The Chair recognizes the gentleman from Wisconsin (Mr. 
Sensenbrenner).


                             General Leave

  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous material on Senate Concurrent 
Resolution 145 currently under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, prior to our last recess, the other body was frantically 
applying their finishing touches to H.R. 1417, a bill to reform the 
copyright royalty arbitration process which we will consider in a few 
minutes. When we get to that bill, I will describe the core amendments 
that were developed there. For now, I will just state that they are 
acceptable to the House Committee on the Judiciary.
  Unfortunately, in the rush to send the amended bill back to the 
House, some inadvertent drafting errors were included in the text. The 
purpose of this concurrent resolution which passed the other body 
yesterday is to correct these provisions before the fact in the 
enrollment of the bill. In other words, the concurrent resolution will 
automatically make the appropriate changes to H.R. 1417, thereby 
ensuring that the measure will work as intended.

                              {time}  1700

  The most expeditious way to address this matter is by concurring in 
the Senate concurrent resolution. Because we cannot approve H.R. 1417 
conditionally, it is important that we consider and support the 
enrolling resolution first.
  The concurrent resolution is especially important because of the 
interaction of the present language in H.R. 1417 with that of H.R. 
4518, the Satellite Home Viewer Extension and Reauthorization Act of 
2004, which passed the House on October 6. Among other things, that 
measure extends the copyright compulsory license for satellite 
broadcasts for another 5 years.
  As the Committee on the Judiciary moved H.R. 4518 through the 
legislative process, the major developers of copyrighted programming 
and the satellite carriers arrived at a voluntary agreement on the use 
and compensation of this programming.
  However, the relevant Senate text in H.R. 1417 inadvertently required 
rate-making proceedings under the satellite license to be conducted 
pursuant to the rules and practices in place prior to the enactment of 
the CARP performed bill. This conflicts with those provisions in the 
satellite bill that take into account the voluntary agreement. In other 
words, unless the error is corrected, the voluntary agreement will not 
work as intended once the satellite bill is adopted.
  Senate Concurrent Resolution 145 will ensure that the voluntary 
agreement and the text of the satellite bill will operate as intended 
by Congress and the parties to the rate-making negotiations.
  This major fix aside, the concurrent resolution makes other 
noncontroversial tweaks to additional drafting errors. These tweaks 
include developing language that clarifies certain definitions; 
imposing time deadlines on the Copyright Office when reviewing legal 
matters; and tightening those rules that prevent claimants from 
``gaming'' small-claim proceedings.
  Finally, the concurrent resolution eliminates typographical errors 
and adopts other grammatical and stylistic changes where appropriate.
  Mr. Speaker, after 3 years of the excruciating process, it is time to 
put CARP reform to bed. I urge Members to support this concurrent 
resolution and the underlying bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. BERMAN. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I ask my colleagues to join me in supporting Senate 
Concurrent Resolution 145. It is a critical adjunct to H.R. 1417, the 
next bill to be considered on the suspension calendar today. S. Con. 
Res. 145 will correct a number of drafting errors within H.R. 1417 
prior to enrollment of that bill. While many of these drafting errors 
are purely technical in nature, some may have significant negative 
repercussions. So it is critical that we concur in S. Con. Res. 145 now 
and thus ensure these errors will be corrected before H.R. 1417 becomes 
law.
  I am not going to bore my colleagues with an explanation of all the 
technical changes made by S. Con. Res. 145, but I would like to bore my 
colleagues with a few of the changes that have the most substantive 
effect.
  S. Con. Res. 145 ensures that H.R. 1417 will not create a major 
conflict with H.R. 4518, the satellite bill now pending before the 
Senate. Section 6(b)(2) of H.R. 1417 states that, notwithstanding any 
other provision of law, satellite license rate-setting proceedings will 
be conducted pursuant to the law, rules and practices in place prior to 
enactment of H.R. 1417. Thus, even if H.R. 4518 is enacted after H.R. 
1417, section 6(b)(2) would take precedence over the provisions of H.R. 
4518. Such an outcome would undo provisions of H.R. 4518 that created 
an expedited procedure for submitting and adopting voluntary section 
119 rate agreements and thus undo language critical to the viability of 
H.R. 4518. S. Con. Res. 145 fixes this problem by ensuring that the 
process H.R. 4518 may later establish for determining satellite TV 
royalties will not be preempted by the terms of H.R. 1417.
  S. Con. Res. 145 also addresses the concern that the Senate 
amendments to H.R. 1417 will render it impossible for decisions of 
copyright royalty judges to take effect.
  The Senate amendments to H.R. 1417 state that the Librarian of 
Congress shall cause a copyright royalty judge determination to be 
published in the Federal Register following the Register's review of 
the CRJ's determination. However, the Register's review is both 
permissive and unlimited in time. If the Register never undertakes such 
a review, H.R. 1417 would appear to prohibit the Librarian from 
publishing the CRJ's determination.
  S. Con. Res. 145 addresses this problem by establishing a time frame 
within which the Register must complete its review for legal error. As 
a result, the Librarian will, after a date certain, be authorized to 
publish the determinations of CRJs.
  S. Con. Res. 145 addresses concerns that, as structured in Senate-
passed H.R. 1417, the small claims process in distribution proceedings 
would not work. H.R. 1417 allows a distribution proceeding participant, 
who has a legitimate claim of $6 to avoid being forced into a small 
claims proceeding if he asserts a claim of $10,005. However, under H.R. 
1417, that same participant cannot be sanctioned for bad faith 
inflation of a claim because the amount in controversy is less than 
$10,000. This anomaly allows participants to game the system and force 
full-blown distribution proceedings, exactly the problem small claim 
proceedings were designed to address.

[[Page H9848]]

  S. Con. Res. 145 addresses this problem by hewing to the approach 
taken in the House-passed version of H.R. 1417. This approach ensures 
that participants are forced into small claims proceedings if the 
contested amount of their claim is $10,000 or less. Thus, a participant 
who asserts a claim of $10,005 could still be forced into a small 
claims proceeding if other participants asserted they were willing to 
pay $6, and thus the contested amount is less than $10,000. If the 
participant attempts to game the system by asserting a claim of 
$10,007, then the participant would face fines for asserting in bad 
faith an amount in controversy in excess of $10,000.
  And, finally, S. Con. Res. 145 addresses one further substantive 
problem created by the Senate amendments to H.R. 1417. H.R. 1417 
unintentionally removed the current legal requirement that voluntary 
agreements submitted to establish rates and terms under the section 112 
compulsory license must include a minimum payment for uses of 
copyrighted works covered by section 112. S. Con. Res. 145 would ensure 
that H.R. 1417 does not alter this current legal obligation.
  In conclusion, Mr. Speaker, adoption of S. Con. Res. 145 is critical 
to ensuring that H.R. 1417, which we will take up next, will operate as 
intended. Thus, I urge its adoption by my colleagues.
  Mr. Speaker, I yield such time as he may consume to the gentleman 
from Michigan (Mr. Conyers), ranking member of the Committee on the 
Judiciary.
  (Mr. CONYERS asked and was given permission to revise and extend his 
remarks.)
  Mr. CONYERS. Mr. Speaker, I thank the gentleman from California (Mr. 
Berman), ranking member of this very important Subcommittee on Courts, 
the Internet, and Intellectual Property, for yielding me this time.
  His explanation has been more than sufficient in which we make sure 
that what we are doing with the Copyright Arbitration Royalty Panel is 
done correctly. And with H.R. 1417, with which I was pleased to join 
him and the gentleman from Wisconsin (Chairman Sensenbrenner) and 
gentleman from Texas (Mr. Smith), subcommittee chairman, on, with the 
gentleman from California (Mr. Berman), does it.
  Mr. Speaker, I rise in support of this legislation. Those of us in 
Congress and the private sector who follow how the government sets 
copyright royalty rates agree that the current system needs change. It 
is expensive, unwieldy, and too unpredictable. Based on that, 
subcommittee Chairman Smith, subcommittee Ranking Member Berman, and I 
introduced legislation, H.R. 1417, that would make substantial 
procedural changes.
  We heard the current system is costly because the copyright owners 
and users have to pay for the arbitrators. Because copyright law 
subjects copyright owners and users to a compulsory process, we believe 
the law should not place this additional financial burden on them. Our 
bill creates 3 Copyright Royalty Judges who would be paid from 
appropriated funds to set royalty rates and distribute royalty fees.
  Another complaint was that the CARP does not have adequate rules on 
how to address hearsay evidence. This bill explicitly requires that the 
judges treat hearsay evidence in the same manner that it is treated in 
Federal court. This will bring uniformity to the proceedings for 
parties on both sides of royalty disputes.
  This bill also alters the terms for which certain royalty rates are 
in effect. Rates that are determined by the Judges will be in effect 
for 5 years. This should create some predictability and uniformity for 
those who rely on the Judges' determinations.
  I urge my colleagues to vote ``yes'' on this bill as amended.
  Mr. BERMAN. Mr. Speaker, I yield back the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Stearns). The question is on the motion 
offered by the gentleman from Wisconsin (Mr. Sensenbrenner) that the 
House suspend the rules and concur in the Senate concurrent resolution, 
S. Con. Res. 145.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the Senate concurrent resolution 
was concurred in.
  A motion to reconsider was laid on the table.

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