[Congressional Record Volume 151, Number 152 (Wednesday, November 16, 2005)]
[House]
[Pages H10243-H10246]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       COPYRIGHT ROYALTY JUDGES PROGRAM TECHNICAL CORRECTIONS ACT

  Mr. SENSENBRENNER. Madam Speaker, I move to suspend the rules and 
pass the bill (H.R. 1036) to amend title 17, United States Code, to 
make technical corrections relating to copyright royalty judges, as 
amended.
  The Clerk read as follows:

                               H.R. 1036

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Copyright Royalty Judges 
     Program Technical Corrections Act''.

     SEC. 2. REFERENCE.

       Any reference in this Act to a provision of title 17, 
     United States Code, refers to such provision as amended by 
     the Copyright Royalty and Distribution Reform Act of 2004 
     (Public Law 108-419) and the Satellite Home Viewer Extension 
     and Reauthorization Act of 2004 (title IX of division J of 
     Public Law 108-447).

     SEC. 3. AMENDMENTS TO CHAPTER 8 OF TITLE 17, UNITED STATES 
                   CODE.

       Chapter 8 of title 17, United States Code, is amended as 
     follows:
       (1) Section 801(b)(1) is amended, in the matter preceding 
     subparagraph (A), by striking ``119 and 1004'' and inserting 
     ``119, and 1004''.
       (2) Section 801 is amended by adding at the end the 
     following:
       ``(f) Effective Date of Actions.--On and after the date of 
     the enactment of the Copyright Royalty and Distribution 
     Reform Act of 2004, in any case in which time limits are 
     prescribed under this title for performance of an action with 
     or by the Copyright Royalty Judges, and in which the last day 
     of the prescribed period falls on a Saturday, Sunday, 
     holiday, or other nonbusiness day within the District of 
     Columbia or the Federal Government, the action may be taken 
     on the next succeeding business day, and is effective as of 
     the date when the period expired.''.
       (3) Section 802(f)(1)(A) is amended--
       (A) in clause (i), by striking ``clause (ii) of this 
     subparagraph and subparagraph (B)'' and inserting 
     ``subparagraph (B) and clause (ii) of this subparagraph''; 
     and
       (B) by striking clause (ii) and inserting the following:
       ``(ii) One or more Copyright Royalty Judges may, or by 
     motion to the Copyright Royalty Judges, any participant in a 
     proceeding may, request from the Register of Copyrights an 
     interpretation of any material questions of substantive law 
     that relate to the construction of provisions of this title 
     and arise in the course of the proceeding. Any request for a 
     written interpretation

[[Page H10244]]

     shall be in writing and on the record, and reasonable 
     provision shall be made to permit participants in the 
     proceeding to comment on the material questions of 
     substantive law in a manner that minimizes duplication and 
     delay. Except as provided in subparagraph (B), the Register 
     of Copyrights shall deliver to the Copyright Royalty Judges a 
     written response within 14 days after the receipt of all 
     briefs and comments from the participants. The Copyright 
     Royalty Judges shall apply the legal interpretation embodied 
     in the response of the Register of Copyrights if it is timely 
     delivered, and the response shall be included in the record 
     that accompanies the final determination. The authority under 
     this clause shall not be construed to authorize the Register 
     of Copyrights to provide an interpretation of questions of 
     procedure before the Copyright Royalty Judges, the ultimate 
     adjustments and determinations of copyright royalty rates and 
     terms, the ultimate distribution of copyright royalties, or 
     the acceptance or rejection of royalty claims, rate 
     adjustment petitions, or petitions to participate in a 
     proceeding.''.
       (4) Section 802(f)(1)(D) is amended by inserting a comma 
     after ``undertakes to consult with''.
       (5) Section 803(a)(1) is amended--
       (A) by striking ``The Copyright'' and inserting ``The 
     Copyright Royalty Judges shall act in accordance with this 
     title, and to the extent not inconsistent with this title, in 
     accordance with subchapter II of chapter 5 of title 5, in 
     carrying out the purposes set forth in section 801. The 
     Copyright''; and
       (B) by inserting after ``Congress, the Register of 
     Copyrights,'' the following: ``copyright arbitration royalty 
     panels (to the extent those determinations are not 
     inconsistent with a decision of the Librarian of Congress or 
     the Register of Copyrights),''.
       (6) Section 803(b) is amended--
       (A) in paragraph (1)(A)(i)(V)--
       (i) by striking ``in the case of'' and inserting ``the 
     publication of notice requirement shall not apply in the case 
     of''; and
       (ii) by striking ``, such notice may not be published.'';
       (B) in paragraph (2)--
       (i) in subparagraph (A), by striking``, together with a 
     filing fee of $150'';
       (ii) in subparagraph (B), by striking ``and'' after the 
     semicolon;
       (iii) in subparagraph (C), by striking the period and 
     inserting ``; and''; and
       (iv) by adding at the end the following:
       ``(D) the petition to participate is accompanied by 
     either--
       ``(i) in a proceeding to determine royalty rates, a filing 
     fee of $150; or
       ``(ii) in a proceeding to determine distribution of royalty 
     fees--

       ``(I) a filing fee of $150; or
       ``(II) a statement that the petitioner (individually or as 
     a group) will not seek a distribution of more than $1000, in 
     which case the amount distributed to the petitioner shall not 
     exceed $1000.'';

       (C) in paragraph (3)(A)--
       (i) by striking ``(A) In general.--Promptly'' and inserting 
     ``(A) Commencement of proceedings.--
       ``(i) Rate adjustment proceeding.--Promptly''; and
       (ii) by adding at the end the following:
       ``(ii) Distribution proceeding.--Promptly after the date 
     for filing of petitions to participate in a proceeding to 
     determine the distribution of royalties, the Copyright 
     Royalty Judges shall make available to all participants in 
     the proceeding a list of such participants. The initiation of 
     a voluntary negotiation period among the participants shall 
     be set at a time determined by the Copyright Royalty 
     Judges.''.
       (D) in paragraph (4)(A), by striking the last sentence; and
       (E) in paragraph (6)(C)--
       (i) in clause (i)--

       (I) in the first sentence, by inserting ``and written 
     rebuttal statements'' after ``written direct statements'';
       (II) in the first sentence, by striking ``which may'' and 
     inserting ``which, in the case of written direct statements, 
     may''; and
       (III) by striking ``clause (iii)'' and inserting ``clause 
     (iv)'';

       (ii) by amending clause (ii)(I) to read as follows:
       ``(ii)(I) Following the submission to the Copyright Royalty 
     Judges of written direct statements and written rebuttal 
     statements by the participants in a proceeding under 
     paragraph (2), the Copyright Royalty Judges, after taking 
     into consideration the views of the participants in the 
     proceeding, shall determine a schedule for conducting and 
     completing discovery.'';
       (iii) by amending clause (iv) to read as follows:
       ``(iv) Discovery in connection with written direct 
     statements shall be permitted for a period of 60 days, except 
     for discovery ordered by the Copyright Royalty Judges in 
     connection with the resolution of motions, orders, and 
     disputes pending at the end of such period. The Copyright 
     Royalty Judges may order a discovery schedule in connection 
     with written rebuttal statements.''; and
       (iv) by amending clause (x) to read as follows:
       ``(x) The Copyright Royalty Judges shall order a settlement 
     conference among the participants in the proceeding to 
     facilitate the presentation of offers of settlement among the 
     participants. The settlement conference shall be held during 
     a 21-day period following the 60-day discovery period 
     specified in clause (iv) and shall take place outside the 
     presence of the Copyright Royalty Judges.''.
       (7) Section 803(c)(2)(B) is amended by striking 
     ``concerning rates and terms''.
       (8) Section 803(c)(4) is amended by striking ``, with the 
     approval of the Register of Copyrights,''
       (9) Section 803(c)(7) is amended by striking ``of 
     Copyright'' and inserting ``of the Copyright''.
       (10) Section 803(d)(2)(C)(i)(I) is amended by striking 
     ``statements of account and any report of use'' and inserting 
     ``applicable statements of account and reports of use''.
       (11) Section 803(d)(3) is amended by striking ``If the 
     court, pursuant to section 706 of title 5, modifies'' and 
     inserting ``Section 706 of title 5 shall apply with respect 
     to review by the court of appeals under this subsection. If 
     the court modifies''.
       (12) Section 804(b)(1)(B) is amended--
       (A) by striking ``801(b)(3)(B) or (C)'' and inserting 
     ``801(b)(2)(B) or (C)''; and
       (B) in the last sentence, by striking ``change is'' and 
     inserting ``change in''.
       (13) Section 804(b)(3) is amended--
       (A) in subparagraph (A), by striking ``effective date'' and 
     inserting ``date of enactment''; and
       (B) in subparagraph (C)--
       (i) in clause (ii), by striking ``that is filed'' and 
     inserting ``is filed''; and
       (ii) in clause (iii), by striking ``such subsections (b)'' 
     and inserting ``subsections (b)''.

     SEC. 4. ADDITIONAL TECHNICAL AMENDMENTS.

       (a) Distribution of Royalty Fees.--Section 111(d) of title 
     17, United States Code, is amended--
       (1) in the second sentence of paragraph (2), by striking 
     all that follows ``Librarian of Congress'' and inserting 
     ``upon authorization by the Copyright Royalty Judges.'';
       (2) in paragraph (4)--
       (A) in subparagraph (B)--
       (i) by striking the second sentence and inserting the 
     following: ``If the Copyright Royalty Judges determine that 
     no such controversy exists, the Copyright Royalty Judges 
     shall authorize the Librarian of Congress to proceed to 
     distribute such fees to the copyright owners entitled to 
     receive them, or to their designated agents, subject to the 
     deduction of reasonable administrative costs under this 
     section.''; and
       (ii) in the last sentence, by striking ``finds'' and 
     inserting ``find''; and
       (B) by striking subparagraph (C) and inserting the 
     following:
       ``(C) During the pendency of any proceeding under this 
     subsection, the Copyright Royalty Judges shall have the 
     discretion to authorize the Librarian of Congress to proceed 
     to distribute any amounts that are not in controversy.''.
       (b) Sound Recordings.--Section 114(f) of title 17, United 
     States Code, is amended--
       (1) in paragraph (1)(A), in the first sentence, by striking 
     ``except where'' and all that follows through the end period 
     and inserting ``except in the case of a different 
     transitional period provided under section 6(b)(3) of the 
     Copyright Royalty and Distribution Reform Act of 2004, or 
     such other period as the parties may agree.'';
       (2) by amending paragraph (2)(A) to read as follows:
       ``(2)(A) Proceedings under chapter 8 shall determine 
     reasonable rates and terms of royalty payments for public 
     performances of sound recordings by means of eligible 
     nonsubscription transmission services and new subscription 
     services specified by subsection (d)(2) during the 5-year 
     period beginning on January 1 of the second year following 
     the year in which the proceedings are to be commenced, except 
     in the case of a different transitional period provided under 
     section 6(b)(3) of the Copyright Royalty and Distribution 
     Reform Act of 2004, or such other period as the parties may 
     agree. Such rates and terms shall distinguish among the 
     different types of eligible nonsubscription transmission 
     services and new subscription services then in operation and 
     shall include a minimum fee for each such type of service. 
     Any copyright owners of sound recordings or any entities 
     performing sound recordings affected by this paragraph may 
     submit to the Copyright Royalty Judges licenses covering such 
     eligible nonsubscription transmissions and new subscription 
     services with respect to such sound recordings. The parties 
     to each proceeding shall bear their own costs.''; and
       (3) in paragraph (2)(B), in the last sentence, by striking 
     ``negotiated under'' and inserting ``described in''.
       (c) Phonorecords of Nondramatic Musical Works.--Section 
     115(c)(3) of title 17, United States Code, is amended--
       (1) in subparagraph (B), by striking ``subparagraphs (B) 
     through (F)'' and inserting ``this subparagraph and 
     subparagraphs (C) through (E)'';
       (2) in subparagraph (D), in the third sentence, by 
     inserting ``in subparagraphs (B) and (C)'' after 
     ``described''; and
       (3) in subparagraph (E), in clauses (i) and (ii)(I), by 
     striking ``(C) or (D)'' each place it appears and inserting 
     ``(C) and (D)''.
       (d) Noncommercial Broadcasting.--Section 118 of title 17, 
     United States Code, is amended--
       (1) in subsection (b)(3), by striking ``copyright owners in 
     works'' and inserting ``owners of copyright in works''; and
       (2) in subsection (c)--
       (A) in the matter preceding paragraph (1), by striking 
     ``established by'' and all that follows through ``engage'' 
     and inserting ``established by the Copyright Royalty Judges 
     under subsection (b)(4), engage''; and

[[Page H10245]]

       (B) in paragraph (1), by striking ``(g)'' and inserting 
     ``(f)''.
       (e) Satellite Carriers.--Section 119 of title 17, United 
     States Code, is amended--
       (1) in subsection (b)(4)--
       (A) in subparagraph (B), by striking the second sentence 
     and inserting the following: ``If the Copyright Royalty 
     Judges determine that no such controversy exists, the 
     Copyright Royalty Judges shall authorize the Librarian of 
     Congress to proceed to distribute such fees to the copyright 
     owners entitled to receive them, or to their designated 
     agents, subject to the deduction of reasonable administrative 
     costs under this section.''; and
       (B) by amending subparagraph (C) to read as follows:
       ``(C) Withholding of fees during controversy.--During the 
     pendency of any proceeding under this subsection, the 
     Copyright Royalty Judges shall have the discretion to 
     authorize the Librarian of Congress to proceed to distribute 
     any amounts that are not in controversy.''; and
       (2) in subsection (c)(1)(F)(i), in the last sentence, by 
     striking ``arbitrary'' and inserting ``arbitration''.
       (f) Digital Audio Recording Devices.--Section 1007 of title 
     17, United States Code, is amended--
       (1) in subsection (b)--
       (A) in the second sentence, by striking ``Librarian of 
     Congress'' and inserting ``Copyright Royalty Judges''; and
       (B) in the last sentence, by striking ``by the Librarian''; 
     and
       (2) in subsection (c), in the last sentence, by striking 
     ``by the Librarian''.
       (g) Removal of Inconsistent Provisions.--The amendments 
     contained in subsection (h) of section 5 of the Copyright 
     Royalty and Distribution Reform Act of 2004 shall be deemed 
     never to have been enacted.
       (h) Effective Date.--Section 6(b)(1) of the Copyright 
     Royalty and Distribution Reform Act of 2004 (Public Law 108-
     419) is amended by striking ``commenced before the date of 
     enactment of this Act'' and inserting ``commenced before the 
     effective date provided in subsection (a)''.

     SEC. 5. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall be 
     effective as if included in the Copyright Royalty and 
     Distribution Reform Act of 2004.

  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).
  Mr. SENSENBRENNER. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, H.R. 1036, the Copyright Royalty Judges Program 
Technical Corrections Act, amends certain technical aspects of the 
copyright act that were substantively amended by Congress' enactment of 
the Copyright Royalty and Distribution Reform Act of 2004.
  It is appropriate to note the efforts of Chairman Lamar Smith and 
Ranking Member Howard Berman of the Subcommittee on Courts, the 
Internet, and Intellectual Property, who worked so hard to ensure 
passage of the Copyright Royalty and Distribution Reform Act last year. 
Enactment of the legislation came only after 20 years of successive 
efforts to streamline, modernize, and de-conflict the role of the U.S. 
Copyright Office in administering the various compulsory licenses 
contained in title 17 of the United States Code.
  Before discussing the specifics of this bill, I would like to offer 
some background. By their nature, statutory changes in this area are 
complex. Proposed changes inevitably affect a number of preexisting and 
carefully negotiated balances that potentially impact the public and a 
wide variety of stakeholders.
  The various compulsory licenses were authorized at differing times, 
and each is shaped in response to the unique circumstances of 
commercial licensors and licensees. Nevertheless, each is intended to 
benefit the public by reducing the transaction costs of certain types 
of protected works and each requires the Copyright Office to assume 
certain administrative functions, which may include rate setting, 
royalty collecting, and royalty distribution functions.
  It is the interplay between these administrative and adjudicative 
functions, some of which are fiduciary in nature, that created 
potential conflicts for the Copyright Office. This problem was 
addressed in the Reform Act by authorizing the establishment of three 
copyright royalty judges, or CRJs, who operate independently of the 
Copyright Office. The CRJs are empowered to consider arguments from 
participants in contested distribution proceedings, resolve factual 
disputes, and order distributions.
  In contrast, the role of the Librarian of Congress and the Copyright 
Office is limited in such cases to largely ministerial functions such 
as advising the CRJs and participants in proceedings on certain matters 
within the substantive expertise of the office and actually 
effectuating the disbursement of funds in response to a CRJ order.
  The ad hoc enactment of various compulsory licenses also contributed 
to a perpetuation of certain inefficiencies and inconsistencies that 
could only be addressed properly by creating a comprehensive and 
predictable schedule for rate-setting and distribution proceedings.
  By enacting the Reform Act last year, Congress took important steps 
toward protecting the public, the Copyright Office, licensors, and 
licensees with a more stable and cohesive administrative and 
adjudicatory construct. But a clear articulation of the respective 
roles of the Copyright Office and the new CRJs is fundamental to the 
success of the new system.
  Unfortunately, as enrolled, the law inadvertently provided in some 
places that the Librarian was charged with ``authorizing'' the 
distribution of funds. This language could be interpreted to imply that 
Congress intended the Librarian to retain a role that clearly had been 
intended to be exercised by the new CRJs.
  H.R. 1036 corrects this error to ensure that the Reform Act operates 
as Congress intended. The Copyright Royalty Judges Program Technical 
Corrections Act includes further noncontroversial stylistic, technical, 
clarifying, and conforming changes that have been carefully considered 
and reviewed by Members and staff on both sides of the aisle, the 
Register of Copyrights, copyright owners, and many of the commercial 
users who are the beneficiaries of the licenses.
  When the copyright royalty judge, or CRJ, system is fully 
implemented, disputes among participants will be settled in a more 
predictable, rational, and consistent manner; decisions will be 
improved by the involvement of judges required to possess relevant 
subject matter expertise; and significant cost savings and efficiencies 
should accrue to participants.
  I urge Members to support this bill.
  Madam Speaker, I reserve the balance of my time.

                              {time}  1115

  Mr. BERMAN. Madam Speaker, I yield myself such time as I may consume.
  Madam Speaker, I want to thank the chairman for his able leadership 
in moving this bill forward expeditiously. One of the major 
accomplishments of the Subcommittee on Courts, the Internet and 
Intellectual Property last Congress was to see the Copyright Royalty 
Arbitration Royalty Panel reform bill from its inception to ultimate 
passage. The original bill accomplished much with a general overhaul of 
the administrative construct by which copyright royalties are 
determined and distributed based up the compulsory licenses authorized 
by the Copyright Act.
  H.R. 1036, the Technical Corrections to the Copyright and 
Distribution Reform Act of 2004, which I introduced with the chairman 
of the subcommittee, makes a number of technical corrections. Some 
provisions merely change spelling and punctuation; others correct 
cross-references, paragraph numbering or editorial style in copyright 
law.
  The corrections not in the aforementioned categories are merely 
technical as well. Those changes include amending the statute to 
correctly identify the roles of the copyright royalty judges and the 
librarian of Congress in authorizing and distributing royalty payments.
  In addition, the bill addresses the omission of CARP decisions 
serving as precedent, establishes consistency for written direct 
statements and written rebuttal statements and provides fee waiver for 
those claiming less than $1,000.
  I want to thank the Copyright Office, the legislative counsel and a 
number of outside groups for their assistance in noting many of the 
errors, and then their help in drafting this bill.
  H.R. 1036 is an important step toward achieving clarity. I urge my 
colleagues to join in supporting H.R. 1036.

[[Page H10246]]

  Madam Speaker, I yield back the balance of my time.
  Mr. SENSENBRENNER. Madam Speaker, I yield back the balance of my 
time.
  The SPEAKER pro tempore (Mrs. Capito). The question is on the motion 
offered by the gentleman from Wisconsin (Mr. Sensenbrenner) that the 
House suspend the rules and pass the bill, H.R. 1036, as amended.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill, as amended, was passed.
  The title of the bill was amended so as to read: ``A bill to amend 
title 17, United States Code, to make technical corrections relating to 
Copyright Royalty Judges, and for other purposes.''.
  A motion to reconsider was laid on the table.

                          ____________________