[House Report 117-693]
[From the U.S. Government Publishing Office]


117th Congress    }                                    {       Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                    {      117-693

======================================================================



 
                  AMERICAN MUSIC FAIRNESS ACT OF 2022

                                _______
                                

 December 30, 2022.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

    Mr. Nadler, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 4130]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 4130) to amend title 17, United States Code, to 
provide fair treatment of radio stations and artists for the 
use of sound recordings, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     5
Hearings.........................................................     8
Committee Consideration..........................................     9
Committee Votes..................................................     9
Committee Oversight Findings.....................................     9
Committee Estimate of Budgetary Effects..........................     9
New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................     9
Duplication of Federal Programs..................................     9
Performance Goals and Objectives.................................     9
Advisory on Earmarks.............................................    10
Section-by-Section Analysis......................................    10
Changes in Existing Law Made by the Bill, as Reported............    11

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) Short Title.--This Act may be cited as the ``American Music 
Fairness Act of 2022''.
  (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Equitable treatment for terrestrial broadcasts and internet 
services.
Sec. 3. Timing of proceedings under sections 112(e) and 114(f).
Sec. 4. Special protection for small broadcasters.
Sec. 5. Distribution of certain royalties.
Sec. 6. No harmful effects on songwriters.
Sec. 7. Value of promotion taken into account.

SEC. 2. EQUITABLE TREATMENT FOR TERRESTRIAL BROADCASTS AND INTERNET 
                    SERVICES.

  (a) Performance Right Applicable to Audio Transmissions Generally.--
Paragraph (6) of section 106 of title 17, United States Code, is 
amended to read as follows:
          ``(6) in the case of sound recordings, to perform the 
        copyrighted work publicly by means of an audio transmission.''.
  (b) Inclusion of Terrestrial Broadcasts in Existing Performance Right 
and Statutory License.--Section 114(d)(1) of title 17, United States 
Code, is amended--
          (1) in the matter preceding subparagraph (A), by striking ``a 
        digital'' and inserting ``an'';
          (2) by striking subparagraph (A);
          (3) by redesignating subparagraphs (B) and (C) as (A) and 
        (B), respectively; and
          (4) in subparagraph (A), as redesignated by paragraph (3), by 
        striking ``nonsubscription'' each place such term appears and 
        inserting ``licensed nonsubscription''.
  (c) Technical and Conforming Amendments.--
          (1) Definition.--Section 101 of title 17, United States Code, 
        is amended by inserting after the definition of ``architectural 
        work'' the following:
  ``An `'audio transmission'' is a transmission of a sound recording, 
whether in a digital, analog, or other format. This term does not 
include the transmission of any audiovisual work.''.
          (2) Conforming removal of digital.--Title 17, United States 
        Code, is amended--
                  (A) in section 112(e)(8), by striking ``a digital 
                audio transmission'' and inserting ``an audio 
                transmission'';
                  (B) in section 114--
                          (i) in subsection (d)--
                                  (I) in paragraph (2)--
                                          (aa) in the matter preceding 
                                        subparagraph (A), by striking 
                                        ``subscription digital'' and 
                                        inserting ``subscription''; and
                                          (bb) in subparagraph 
                                        (C)(viii), by striking 
                                        ``digital signal'' and 
                                        inserting ``signal''; and
                                  (II) in paragraph (4)--
                                          (aa) in subparagraph (A), by 
                                        striking ``a digital audio 
                                        transmission'' and inserting 
                                        ``an audio transmission''; and
                                          (bb) in subparagraph (B)(i), 
                                        by striking ``a digital audio 
                                        transmission'' and inserting 
                                        ``an audio transmission'';
                          (ii) in subsection (g)(2)(A), by striking ``a 
                        digital'' and inserting ``an''; and
                          (iii) in subsection (j)--
                                  (I) in paragraph (6)--
                                          (aa) by striking ``digital''; 
                                        and
                                          (bb) by striking 
                                        ``retransmissions of broadcast 
                                        transmissions'' and inserting 
                                        ``broadcast transmissions and 
                                        retransmissions of broadcast 
                                        transmissions''; and
                                  (II) in paragraph (8), by striking 
                                ``subscription digital'' and inserting 
                                ``subscription''; and
                  (C) in section 1401--
                          (i) in subsection (b), by striking ``a 
                        digital audio'' and inserting ``an audio''; and
                          (ii) in subsection (d)--
                                  (I) in paragraph (1), by striking ``a 
                                digital audio'' and inserting ``an 
                                audio'';
                                  (II) in paragraph (2)(A), by striking 
                                ``a digital audio'' and inserting ``an 
                                audio''; and
                                  (III) in paragraph (4)(A), by 
                                striking ``a digital audio'' and 
                                inserting ``an audio''.

SEC. 3. TIMING OF PROCEEDINGS UNDER SECTIONS 112(E) AND 114(F).

  Paragraph (3) of section 804(b) of title 17, United States Code, is 
amended by adding at the end the following new subparagraph:
                  ``(D) A proceeding under this chapter shall be 
                commenced as soon as practicable after the date of the 
                enactment of this subparagraph to determine royalty 
                rates and terms for nonsubscription broadcast 
                transmissions, to be effective for the period beginning 
                on such date of enactment, and ending on December 31, 
                2028. Any payment due under section 114(f)(1)(D) shall 
                not be due until the due date of the first royalty 
                payments for nonsubscription broadcast transmissions 
                that are determined, after the date of the enactment of 
                this subparagraph, by the Copyright Royalty Judges. 
                Thereafter, such proceeding shall be repeated in each 
                subsequent fifth calendar year.''.

SEC. 4. SPECIAL PROTECTION FOR SMALL BROADCASTERS.

  (a) Specified Royalty Fees.--Section 114(f)(1) of title 17, United 
States Code, is amended by inserting at the end the following new 
subparagraph:
                  ``(D)(i) Notwithstanding the provisions of 
                subparagraphs (A) through (C), the royalty rate shall 
                be as follows for nonsubscription broadcast 
                transmissions by each individual terrestrial broadcast 
                station licensed as such by the Federal Communications 
                Commission that satisfies the conditions in clause 
                (ii)--
                          ``(I) $10 per calendar year, in the case of 
                        nonsubscription broadcast transmissions by a 
                        broadcast station that generated revenue in the 
                        immediately preceding calendar year of less 
                        than $100,000;
                          ``(II) $100 per calendar year, in the case of 
                        nonsubscription broadcast transmissions by a 
                        broadcast station that is a public broadcasting 
                        entity as defined in section 118(f) and 
                        generated revenue in the immediately preceding 
                        calendar year of $100,000 or more, but less 
                        than $1,500,000; and
                          ``(III) $500 per calendar year, in the case 
                        of nonsubscription broadcast transmissions by a 
                        broadcast station that is not a public 
                        broadcasting entity as defined in section 
                        118(f) and generated revenue in the immediately 
                        preceding calendar year of $100,000 or more, 
                        but less than $1,500,000.
                  ``(ii) An individual terrestrial broadcast station 
                licensed as such by the Federal Communications 
                Commission is eligible for a royalty rate set forth in 
                clause (i) if--
                          ``(I) the revenue from the operation of that 
                        individual station was less than $1,500,000 
                        during the immediately preceding calendar year;
                          ``(II) the aggregate revenue of the owner and 
                        operator of the broadcast station and any 
                        person directly or indirectly controlling, 
                        controlled by, or under common control with 
                        such owner or operator, from any source, was 
                        less than $10,000,000 during the immediately 
                        preceding calendar year; and
                          ``(III) the owner or operator of the 
                        broadcast station provides to the nonprofit 
                        collective designated by the Copyright Royalty 
                        Judges to distribute receipts from the 
                        licensing of transmissions in accordance with 
                        subsection (f), by no later than January 31 of 
                        the relevant calendar year, a written and 
                        signed certification of the station's 
                        eligibility under this clause and the 
                        applicable subclause of clause (i), in 
                        accordance with requirements the Copyright 
                        Royalty Judges shall prescribe by regulation.
                  ``(iii) For purposes of clauses (i) and (ii)--
                          ``(I) revenue shall be calculated in 
                        accordance with generally accepted accounting 
                        principles;
                          ``(II) revenue generated by a terrestrial 
                        broadcast station shall include all revenue 
                        from the operation of the station, from any 
                        source; and
                          ``(III) in the case of affiliated broadcast 
                        stations, revenue shall be allocated reasonably 
                        to individual stations associated with the 
                        revenue.
                  ``(iv) The royalty rates specified in clause (i) 
                shall not be admissible as evidence or otherwise taken 
                into account in determining royalty rates in a 
                proceeding under chapter 8, or in any other 
                administrative, judicial, or other Federal Government 
                proceeding involving the setting or adjustment of the 
                royalties payable for the public performance or 
                reproduction in ephemeral phonorecords or copies of 
                sound recordings, the determination of terms or 
                conditions related thereto, or the establishment of 
                notice or recordkeeping requirements.''.
  (b) Technical Correction.--Section 118(f) of title 17, United States 
Code, is amended by striking ``section 397 of title 47'' and inserting 
``section 397 of the Communications Act of 1934 (47 U.S.C. 397)''.

SEC. 5. DISTRIBUTION OF CERTAIN ROYALTIES.

   Section 114(g) of title 17, United States Code, is amended--
          (1) in paragraph (1), by inserting ``or in the case of a 
        transmission to which paragraph (5) applies'' after ``this 
        section'';
          (2) by redesignating paragraphs (5), (6), and (7) as (6), 
        (7), and (8), respectively; and
          (3) by inserting after paragraph (4) the following new 
        paragraph:
          ``(5) Notwithstanding paragraph (1), to the extent that a 
        license granted by the copyright owner of a sound recording to 
        a transmitting entity eligible for a statutory license under 
        subsection (d)(2) extends to such entity's transmissions 
        otherwise licensable under a statutory license in accordance 
        with subsection (f), such entity shall pay to the collective 
        designated to distribute statutory licensing receipts from the 
        licensing of transmissions in accordance with subsection (f), 
        50 percent of the total royalties that such entity is required, 
        pursuant to the applicable license agreement, to pay for such 
        transmissions otherwise licensable under a statutory license in 
        accordance with subsection (f). That collective shall 
        distribute such payments in proportion to the distributions 
        provided in subparagraphs (B) through (D) of paragraph (2), and 
        such payments shall be the only payments to which featured and 
        nonfeatured artists are entitled by virtue of such 
        transmissions under the direct license with such entity.''.

SEC. 6. NO HARMFUL EFFECTS ON SONGWRITERS.

  Nothing in this Act, or the amendments made by this Act, shall 
adversely affect in any respect the public performance rights of or 
royalties payable to songwriters or copyright owners of musical works.

SEC. 7. VALUE OF PROMOTION TAKEN INTO ACCOUNT.

  Pursuant to section 114(f)(1)(B) of title 17, United States Code, in 
determining rates and terms for terrestrial broadcast radio stations 
under this Act, and the amendments made by this Act, the Copyright 
Royalty Judges shall base their decision on economic, competitive, and 
programming information presented by the parties, including whether use 
of the station's service may substitute for or may promote the sales of 
phonorecords or otherwise may interfere with or may enhance the sound 
recording copyright owner's other streams of revenue from the copyright 
owner's sound recordings.

                          Purpose and Summary

    H.R. 4130, the ``American Music Fairness Act,'' is a 
bipartisan bill that would expand the scope of public 
performance rights in sound recordings to include terrestrial 
broadcast (AM/FM radio) performances. Specifically, the bill 
requires terrestrial radio stations that broadcast copyright-
protected sound recordings over AM/FM radio to pay a public 
performance royalty to the copyright owners of, and artists who 
performed, the sound recordings.
    A ``sound recording'' is a recording of a particular 
performance of a musical work.\1\ Typically, the copyright 
owners of a sound recording are the artists who performed the 
musical work (e.g., musicians and vocalists), and the producer 
who captured, manipulated, and/or edited the work's sounds, who 
may assign their rights to others, such as record labels. Under 
current federal law, when a terrestrial radio station 
broadcasts a copyright-protected sound recording, it is not 
required to pay a public performance royalty to these copyright 
owners.\2\ This contrasts with digital broadcast platforms 
(e.g., cable, satellite, or the internet), which are required 
by federal law to pay public performance royalties to the 
performing artists, musicians, and other copyright owners of 
the sound recordings.\3\ As a result, satellite radio and 
digital streaming services are at a competitive disadvantage to 
terrestrial radio stations. Additionally, American singers, 
musicians, and producers fail to receive millions of dollars in 
pay when terrestrial radio stations broadcast their creative 
works without compensation.
---------------------------------------------------------------------------
    \1\Specifically, the Copyright Act defines ``sound recordings'' as 
``works that result from the fixation of a series of musical, spoken, 
or other sounds, but not including the sounds accompanying a motion 
picture or other audiovisual work, regardless of the nature of the 
material objects, such as disks, tapes, or other phonorecords, in which 
they are embodied.'' 17 U.S.C. Sec. 101. The Copyright Act does not 
define a ``musical work,'' but for registration purposes, the Copyright 
Office defines ``musical works'' as ``original works of authorship 
consisting of music and any accompanying words.'' Compendium of U.S. 
Copyright Office Practices, 3rd ed. Sec. 802.01.
    \2\See 17 U.S.C. Sec. 114(d)(1). Instead, the station pays a public 
performance royalty only to the copyright owners of the underlying 
musical work--usually the composer/songwriter or music publisher who 
has a public performance right to that work. 17 U.S.C. Sec. 106.
    \3\Like analog broadcasts, the digital broadcast by means of 
``high-definition radio'' (HD-radio) technology by a terrestrial radio 
station is exempt under current law from paying a public performance 
royalty to sound recording owners. When ``simulcasting'' terrestrial 
radio signals via the internet though, terrestrial radio stations are 
subject to the payment of public performance royalties to sound 
recording owners under 17 U.S.C. Sec. 114.
---------------------------------------------------------------------------
    H.R. 4130 corrects this unfairness by establishing that a 
copyright owner's public performance right to a sound recording 
encompasses an ``audio transmission''--rather than merely a 
``digital audio transmission,'' as currently worded. The bill 
defines an ``audio transmission'' as ``a transmission of a 
sound recording, whether in digital, analog, or other format.'' 
By expanding the scope of existing public performance rights in 
sound recordings to all audio transmissions, the bill requires 
terrestrial radio stations--like digital broadcast platforms--
to secure a license to publicly broadcast a copyright-protected 
sound recording.
    Under the bill, terrestrial radio stations will use the 
same royalty payment system that satellite radio and digital 
streaming services already use--i.e., an existing non-profit 
licensing collective that is required to split the public 
performance royalty among the copyright owners. The Copyright 
Royalty Board sets, and periodically resets, the royalty rate. 
H.R. 4130 specifies that, when determining the royalty rate, 
the Board must base its decision on economic, competitive, and 
programming information presented by the parties, including 
whether the radio station's service in broadcasting the sound 
recording enhances the copyright owners' other streams of 
revenue.
    The bill also protects certain small terrestrial radio 
stations (and the owners of those stations) by excluding radio 
stations that fall beneath certain revenue thresholds from the 
Board-established royalty rate. These excluded terrestrial 
radio stations will instead pay yearly small flat fees for a 
license to publicly perform copyright-protected sound 
recordings. Specifically, the bill establishes an affordable, 
predictable annual fee that allows these small terrestrial 
radio stations to play unlimited music: $10/year for stations 
earning less than $100,000/year, $100/year for public broadcast 
stations earning $100,000 to $1,500,000, and $500/year for 
other broadcast stations earning $100,000 to $1,500,000, unless 
they are owned by a parent company making over $10 million/
year.
    Representatives Ted Deutch (D-FL) and Darrell E. Issa (R-
CA) introduced H.R. 4130 on June 24, 2021, with Chairman 
Jerrold Nadler (D-NY), Rep. Tom McClintock (R-CA), Rep. Karen 
Bass (D-CA), Rep. Diana Harshbarger (R-TN), and Rep. Judy Chu 
(D-CA) as original cosponsors. Following Rep. Deutch's 
departure from the House, Chairman Nadler assumed first 
sponsorship of H.R. 4130 on November 16, 2022, via unanimous 
consent.

                Background and Need for the Legislation


1. History of public performance rights

    Article I, Section 8 of the Constitution grants Congress 
the power ``[t]o promote the progress of science and useful 
arts, by securing for limited times to authors and inventors 
the exclusive right to their respective writings and 
discoveries.''\4\ Congress first established copyright 
protection in sound recordings in 1971 when it granted the 
owners of such copyrights the right to control the 
reproduction, distribution, and adaptation of their works.\5\ 
Congress did not grant copyright owners the right to control 
the ``public performance''\6\ of their sound recordings at the 
time, because it believed that possession of the three 
aforementioned rights would adequately compensate sound 
recording copyright owners.\7\
---------------------------------------------------------------------------
    \4\US Const. art I, Sec. 8, cl. 8.
    \5\For a comprehensive discussion of the history of public 
performance rights, see Dana A. Scherer, Cong. Rsch. Serv. R43984, 
Money for Something: Music Licensing in the 21st Century 24-31 (2021) 
[hereinafter Money for Something].
    \6\``To perform or display a work `publicly' means--(1) to perform 
or display it at a place open to the public or at any place where a 
substantial number of persons outside of a normal circle of a family 
and its social acquaintances is gathered; or (2) to transmit or 
otherwise communicate a performance or display of the work to a place 
specified by clause (1) or to the public, by means of any device or 
process, whether the members of the public capable of receiving the 
performance or display receive it in the same place or in separate 
places and at the same time or at different times.'' 17 U.S.C. 
Sec. 101.
    \7\See Cong. Rsch. Serv., Copyright Licensing in Music 
Distribution, Reproduction, and Public Performance 9 (2015).
---------------------------------------------------------------------------
    Controversy has always existed over whether the ``bundle of 
rights'' to a sound recording should include a public 
performance right. In a 1978 report, the Register of Copyrights 
recommended that Congress add a sound recording performance 
right. The Register predicted that new ``technological 
developments could well cause substantial changes in existing 
systems for public delivery of sound recordings . . . . [and] 
[i]n that event, it [would be] . . . possible that a 
performance right would become the major source of income from, 
and incentive to, the creation of such works.''\8\
---------------------------------------------------------------------------
    \8\Register of Copyrights, Report on Performance Right in Sound 
Recordings, H.R. Doc. No. 15, 95th Cong. (2d Sess. 1978).
---------------------------------------------------------------------------

2. Creation of the digital public performance right for sound 
        recordings

    As the Register predicted, the growing popularity of the 
internet created an environment where the public performance of 
copyright-protected sound recordings became an important new 
source of both revenue and potential piracy. Congress responded 
to the introduction of ``[s]atellite and digital technologies 
[that made] possible the celestial jukebox, music on demand, 
and pay-per-listen services''\9\ on the internet by amending 
the Copyright Act to create a public performance right for 
digital audio transmissions in the Digital Performance Right in 
Sound Recordings Act of 1995.
---------------------------------------------------------------------------
    \9\S. Rep. No. 104-128 (1995).
---------------------------------------------------------------------------
    Specifically, Congress amended Section 106 of the Copyright 
Act to provide an exclusive right to perform copyrighted sound 
recordings publicly by means of a ``digital audio 
transmission.''\10\ The Act exempted ``nonsubscription'' 
transmissions and retransmissions of sound recordings such as 
television, radio, and business establishment broadcasts, so as 
not to upset the current balance in the industry.\11\ For 
``subscription transmissions,'' the 1995 Act created a 
statutory licensing scheme under 17 U.S.C. Sec. 114 that 
mandated the transmitter pay a royalty and comply with other 
requirements.\12\ For ``interactive'' transmissions, the 1995 
Act did not include a statutory licensing mechanism and instead 
required ``interactive'' transmission services to directly 
contract with the sound recording copyright owners, thus 
leaving that licensing largely to the free market.\13\
---------------------------------------------------------------------------
    \10\A digital audio transmission is a ``transmission in whole or in 
part in a digital or other non-analog format.'' 17 U.S.C. Sec. 101.
    \11\17 U.S.C. Sec. 114(d)(1). See, e.g., S. Rep. No. 104-128, at 15 
(1995) explaining, ``The sale of many sound recordings and the careers 
of many performers have benefitted from . . . free over-the-air 
broadcasting. [. . .] This legislation should do nothing to change or 
jeopardize the mutually beneficial economic relationship between the 
recording and traditional broadcast industries.''
    \12\``A `new subscription service' is a service that performs sound 
recordings by means of noninteractive subscription digital audio 
transmissions and that is not a preexisting subscription service or a 
preexisting satellite digital audio radio service.'' Subscribers pay 
for subscription services. 17 U.S.C. Sec. 114(j)(8). These ``other 
requirements'' included: (1) not playing too many songs by one artist 
in close proximity, (2) not publishing a program schedule in advance, 
(3) not causing a listener's receiver equipment to switch from one 
channel to another in order to listen to more than one artist's songs 
in a row, and (4) including copyright management information for the 
music broadcast. 17 U.S.C. Sec. 114(d)(2)(C).
    \13\``An `interactive service' is one that enables a member of the 
public to receive a transmission of a program specially created for the 
recipient, or on request, a transmission of a particular sound 
recording, whether or not as part of a program, which is selected by or 
on behalf of the recipient.'' 17 U.S.C. Sec. 114(j)(7).
---------------------------------------------------------------------------
    The Digital Millennium Copyright Act of 1998 (DMCA) amended 
the types of transmissions included in the sound recording 
public performance right to include noninteractive, 
nonsubscription internet radio broadcasters, but continued to 
exclude nonsubscription terrestrial radio broadcasts (AM/FM 
radio).\14\ While the Music Modernization Act of 2018 (MMA) 
modernized many aspects of the music licensing processes, it 
left untouched the sound recording public performance right for 
terrestrial radio broadcasts.\15\
---------------------------------------------------------------------------
    \14\See Matthew S. DelNero, Long Overdue? An Exploration of the 
Status and Merit of a General Public Performance Right in Sound 
Recordings, 51 J. Copyright Soc'y U.S.A. 473, 487 (2004).
    \15\Money for Something 10.
---------------------------------------------------------------------------

3. Effect of disparate public performance rights on artist compensation

    The music industry has continued to evolve since the 
passage of the MMA. The popularity of digital downloads has now 
declined dramatically, especially since the introduction of 
subscription-based music streaming services.\16\ Consumers 
today increasingly choose to stream music; webcasting, digital 
subscription radio services, and music-streaming services 
constituted 82% of consumer spending in the recording industry 
in 2019, up from just 12% in 2011.\17\
---------------------------------------------------------------------------
    \16\Id. at 2.
    \17\Id. at 3.
---------------------------------------------------------------------------
    That streaming services are available over the same devices 
as terrestrial radio broadcasts, however, raises concerns about 
the disparate treatment of artists when their works are 
broadcast over terrestrial radio versus satellite and internet 
radio.\18\ This is especially true when, for example, a 
consumer listening to music in a car may perceive little 
difference between these types of platforms.\19\ Recording 
artists argue that they are entitled to compensation from 
terrestrial radio stations in the same way they receive 
compensation from streaming services.\20\ Artists and record 
labels calculate that they lose approximately $200 million 
yearly, even though large broadcasting corporations take in 
billions of dollars an annual advertising revenues.\21\
---------------------------------------------------------------------------
    \18\United States Copyright Office, Copyright and the Music 
Marketplace, 87-88 (2015) [hereinafter Copyright and the Music 
Marketplace].
    \19\Id. at 88 (noting information that automobile in-dash receivers 
are capable of receiving digital and analog transmissions of the same 
sound recording).
    \20\Id. at 87-88.
    \21\Id. at 88; see also Dianlyn Cenidoza, The Clash Between 
Terrestrial and Digital Radio: Pinned by the Music Modernization Act, 
43 Seattle U. L. Rev. 841, 855 (2020).
---------------------------------------------------------------------------
    Moreover, because the Copyright Act does not provide a 
public performance right to terrestrial radio broadcasts, 
American recording artists do not receive public performance 
royalties when their sound recordings are played over the radio 
in foreign countries, even though virtually all other 
industrialized nations recognize some form of public 
performance right for sound recordings.\22\ Indeed, the United 
States is among only a handful of nations (including Iran and 
North Korea) that do not recognize a performer's right to be 
paid for the broadcast of his or her music over the radio.\23\ 
Recording artists in other industrialized countries receive 
royalties for their sound recordings played on the radio, but 
due to the lack of reciprocity, American recording artists do 
not have to be compensated for the terrestrial radio broadcast 
of their music abroad.\24\ Given the popularity of American 
music world-wide, the amount of lost revenue is large. 
According to one estimate, American recording artists lose out 
on $70 100 million in royalties for performances of their 
copyrighted works abroad.\25\
---------------------------------------------------------------------------
    \22\Copyright and the Music Marketplace, 89 (2015).
    \23\Id. at 89.
    \24\Id.; see also John R. Kettle III, Dancing to the Beat of a 
Different Drummer: Global Harmonization--And the Need for Congress To 
Get in Step with a Full Public Performance Right for Sound Recordings, 
12 Fordham Intell. Prop. Media & Ent. L.J. 1041, 1075 (2002) (``The 
foreign countries that collect public performance royalties under their 
laws only make such royalties available to nationals of member 
countries that provide an equivalent right. Since the United States 
does not provide a full public performance right for sound recordings, 
American recording artists and record labels are not entitled to 
receive the millions of dollars in foreign royalties collected that 
would otherwise be payable.'').
    \25\Copyright and the Music Marketplace, 89 (2015).
---------------------------------------------------------------------------
    Broadcasters have disputed this amount and point out that 
some countries send public performance royalties 
voluntarily.\26\ But a new amendment to European law\27\ 
currently being considered in the European Union would forbid 
EU countries that have voluntarily been sending American 
artists royalties from doing so going forward. The European 
Commission recently completed a ``call for evidence'' on the 
remuneration of music performers and record producers from non-
EU countries for recorded music played in the EU from various 
stakeholders,\28\ and is considering amending EU law to 
expressly mandate reciprocity--meaning that any amount 
currently sent to the United States would evaporate.\29\
---------------------------------------------------------------------------
    \26\Id. at 90.
    \27\In the European Union, Article 8(2) of the Rental and Lending 
Right Directive (2006/115/EC) governs the remuneration right for 
performers and record producers when their sound recordings are 
broadcast to the public and played in public places.
    \28\https://ec.europa.eu/info/law/better-regulation/have-your-say/
initiatives/13530-Remuneration-of-music-performers-and-record-
producers-from-third-non-EU-countries-for-recorded-music-played-in-the-
EU_en.
    \29\One European advocacy group, the Independent Music Companies 
Association (IMPALA), estimates that ``125m euros per annum are at 
stake''--the amount the group expects to the transferred from Europe to 
American artists should the amendment pass. See European
Performance Income & US Repertoire, available at: https://
www.impalamusic.org/european-
performance-income-us-repertoire/.
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                                Hearings

    For the purposes of clause 3(c)(6)(A) of House rule XIII, 
the following hearing was used to consider H.R. 4130: On 
February 2, 2022, the Committee held a legislative hearing 
entitled, ``Respecting Artists with the American Music Fairness 
Act,'' to examine both the benefits and drawbacks of extending 
the public performance right to all audio sound transmissions. 
The hearing included witnesses representing recording artists, 
musicians, producers, and broadcasters.\30\ The witnesses were: 
(1) Gloria Estefan, Singer, Songwriter, Musician, and Recording 
Artist; (2) Barry Massarsky, Partner, Co-Leader, Music 
Economics and Valuation Services Practice, Citrin Cooperman 
Advisors LLC; (3) Lawrence ``Boo'' Mitchell, Engineer, 
Producer, Musician, and Owner, Royal Studios; (4) Curtis 
LeGeyt, President and CEO, National Association of 
Broadcasters; and (5) Dave Pomeroy, Bassist, Writer, and 
Producer; President, Nashville Musicians Association, AFM Local 
257; International Executive Officer, American Federation of 
Musicians.
---------------------------------------------------------------------------
    \30\Respecting Artists with the American Music Fairness Act: 
Hearing on H.R. 4130 Before the U.S. House of Representatives Judiciary 
Committee, 117th Cong. (2022), available at https://
judiciary.house.gov/calendar/eventsingle.aspx?EventID=4835.
---------------------------------------------------------------------------

                        Committee Consideration

    On December 7, 2022, the Committee met in open session and 
ordered the bill, H.R. 4130, favorably reported, as amended, by 
a voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of House rule XIII, no 
rollcall votes occurred during the Committee's consideration of 
H.R. 4130.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House rule XIII, the 
Committee advises that the findings and recommendations of the 
Committee, based on oversight activities under clause 2(b)(1) 
of House rule X, are incorporated in the descriptive portions 
of this report.

                Committee Estimate of Budgetary Effects

    Pursuant to clause 3(d)(1) of House rule XIII, the 
Committee adopts as its own the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

   New Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(2) of House rule XIII and section 
308(a) of the Congressional Budget Act of 1974, and pursuant to 
clause (3)(c)(3) of House rule XIII and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but not received from the Director of the Congressional Budget 
Office a budgetary analysis and a cost estimate of this bill.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of H.R. 4130 establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
House rule XIII, H.R. 4130 would amend the Copyright Act of 
1976 (17 U.S.C.) to establish a terrestrial broadcast 
performance right for sound recordings.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, H.R. 4130 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clause 9(d), 
9(e), or 9(f) of House rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.

Section 1. Short Title; Table of Contents

    Section 1 establishes a short title and table of contents.

Section 2. Equitable Treatment for Terrestrial Broadcasts and Internet 
        Services

    Section 2(a) establishes that there is an exclusive right 
for the audio transmission of sound recordings by removing the 
current limitation to ``digital'' audio transmission in 17 
U.S.C. Sec. 106(6).
    Section 2(b) makes changes to allow for the licensing of 
this expanded exclusive right under the same statutory license 
established in 17 U.S.C. Sec. 114 that is currently used by 
internet and satellite radio and makes conforming amendments 
throughout the rest of title 17. (Under Sec. 114, the collected 
royalties are distributed so that 50% goes to the copyright 
owner, 45% goes to the featured artist, and 2.5% goes to each 
of two entities, one representing nonfeatured musicians and one 
representing nonfeatured vocalists.)

Section 3. Timing of Proceedings Under Sections 112(e) and 114(f)

    Section 3 provides that the Copyright Royalty Board shall 
begin proceedings immediately to establish the appropriate 
public performance royalty rate for terrestrial radio, and that 
that rate shall apply to transmissions made between the date of 
enactment and December 31, 2028, though payment is not due 
until the royalty rate is established. New proceedings shall 
occur every five years.

Section 4. Special Protection for Small Broadcasters

    Section 4 establishes separate yearly rates for certain 
smaller radio stations. For broadcast stations that generated 
less than $100,000 in revenue in the proceeding calendar year, 
the yearly fee is $10. For public broadcast stations that 
generated between $100,000 to $1,500,000 in the proceeding 
calendar year, the yearly fee is $100. For all other broadcast 
stations that generated between $100,000 to $1,500,000 in the 
proceeding calendar year, the yearly fee is $500. These 
exceptions do not apply to any station controlled or owned by 
another entity whose revenue, combined with that station's 
revenue, exceeds $10,000,000. These yearly royalty rates are 
not admissible as evidence or to be taken into account in any 
royalty rate proceeding for the public performance of sound 
recordings.

Section 5. Distribution of Certain Royalties

    Section 5 establishes that if a copyright holder directly 
contracts with broadcast stations to license terrestrial 
performance rights (rather than the broadcast station relying 
on the statutory license of Sec. 114), the broadcast station 
must still pay 50% of the direct license payment to the entity 
administering the Sec. 114 royalty to be distributed to artists 
(where it is split as it would be under the Sec. 114 license so 
that the featured artist receives 45% and entities representing 
nonfeatured musicians and nonfeatured vocalists each receive 
2.5%).

Section 6. No Harmful Effects on Songwriters

    Section 6 provides that nothing in this Act shall adversely 
affect the public performance rights or royalties to be paid to 
songwriters or owners of musical works copyrights.

Section 7. Value of Promotion Taken into Account

    Section 7 provides that in determining the royalty rate for 
terrestrial broadcast public performance of sound recordings, 
the Copyright Royalty Board may consider the promotional value 
conferred by the broadcast station's playing of the sound 
recording.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 17, UNITED STATES CODE



           *       *       *       *       *       *       *
            CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT

Sec. 101. Definitions

  Except as otherwise provided in this title, as used in this 
title, the following terms and their variant forms mean the 
following:
          An ``anonymous work'' is a work on the copies or 
        phonorecords of which no natural person is identified 
        as author.
          An ``architectural work'' is the design of a building 
        as embodied in any tangible medium of expression, 
        including a building, architectural plans, or drawings. 
        The work includes the overall form as well as the 
        arrangement and composition of spaces and elements in 
        the design, but does not include individual standard 
        features.
          An ``audio transmission'' is a transmission of a 
        sound recording, whether in a digital, analog, or other 
        format. This term does not include the transmission of 
        any audiovisual work.
          ``Audiovisual works'' are works that consist of a 
        series of related images which are intrinsically 
        intended to be shown by the use of machines, or devices 
        such as projectors, viewers, or electronic equipment, 
        together with accompanying sounds, if any, regardless 
        of the nature of the material objects, such as films or 
        tapes, in which the works are embodied.
          The ``Berne Convention'' is the Convention for the 
        Protection of Literary and Artistic Works, signed at 
        Berne, Switzerland, on September 9, 1886, and all acts, 
        protocols, and revisions thereto.
          The ``best edition'' of a work is the edition, 
        published in the United States at any time before the 
        date of deposit, that the Library of Congress 
        determines to be most suitable for its purposes.
          A person's ``children'' are that person's immediate 
        offspring, whether legitimate or not, and any children 
        legally adopted by that person.
          A ``collective work'' is a work, such as a periodical 
        issue, anthology, or encyclopedia, in which a number of 
        contributions, constituting separate and independent 
        works in themselves, are assembled into a collective 
        whole.
          A ``compilation'' is a work formed by the collection 
        and assembling of preexisting materials or of data that 
        are selected, coordinated, or arranged in such a way 
        that the resulting work as a whole constitutes an 
        original work of authorship. The term ``compilation'' 
        includes collective works.
          A ``computer program'' is a set of statements or 
        instructions to be used directly or indirectly in a 
        computer in order to bring about a certain result.
          ``Copies'' are material objects, other than 
        phonorecords, in which a work is fixed by any method 
        now known or later developed, and from which the work 
        can be perceived, reproduced, or otherwise 
        communicated, either directly or with the aid of a 
        machine or device. The term ``copies'' includes the 
        material object, other than a phonorecord, in which the 
        work is first fixed.
          ``Copyright owner'', with respect to any one of the 
        exclusive rights comprised in a copyright, refers to 
        the owner of that particular right.
          A ``Copyright Royalty Judge'' is a Copyright Royalty 
        Judge appointed under section 802 of this title, and 
        includes any individual serving as an interim Copyright 
        Royalty Judge under such section.
          A work is ``created'' when it is fixed in a copy or 
        phonorecord for the first time; where a work is 
        prepared over a period of time, the portion of it that 
        has been fixed at any particular time constitutes the 
        work as of that time, and where the work has been 
        prepared in different versions, each version 
        constitutes a separate work.
          A ``derivative work'' is a work based upon one or 
        more preexisting works, such as a translation, musical 
        arrangement, dramatization, fictionalization, motion 
        picture version, sound recording, art reproduction, 
        abridgment, condensation, or any other form in which a 
        work may be recast, transformed, or adapted. A work 
        consisting of editorial revisions, annotations, 
        elaborations, or other modifications which, as a whole, 
        represent an original work of authorship, is a 
        ``derivative work''.
          A ``device'', ``machine'', or ``process'' is one now 
        known or later developed.
          A ``digital transmission'' is a transmission in whole 
        or in part in a digital or other non-analog format.
          To ``display'' a work means to show a copy of it, 
        either directly or by means of a film, slide, 
        television image, or any other device or process or, in 
        the case of a motion picture or other audiovisual work, 
        to show individual images nonsequentially.
          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.
          The term ``financial gain'' includes receipt, or 
        expectation of receipt, of anything of value, including 
        the receipt of other copyrighted works.
          A work is ``fixed'' in a tangible medium of 
        expression when its embodiment in a copy or 
        phonorecord, by or under the authority of the author, 
        is sufficiently permanent or stable to permit it to be 
        perceived, reproduced, or otherwise communicated for a 
        period of more than transitory duration. A work 
        consisting of sounds, images, or both, that are being 
        transmitted, is ``fixed'' for purposes of this title if 
        a fixation of the work is being made simultaneously 
        with its transmission.
          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 that is nonresidential is used for that 
        purpose, and in which nondramatic musical works are 
        performed publicly.
          The ``Geneva Phonograms Convention'' is the 
        Convention for the Protection of Producers of 
        Phonograms Against Unauthorized Duplication of Their 
        Phonograms, concluded at Geneva, Switzerland, on 
        October 29, 1971.
          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.
          The terms ``including'' and ``such as'' are 
        illustrative and not limitative.
          An ``international agreement'' is--
          (1) the Universal Copyright Convention;
          (2) the Geneva Phonograms Convention;
          (3) the Berne Convention;
          (4) the WTO Agreement;
          (5) the WIPO Copyright Treaty;
          (6) the WIPO Performances and Phonograms Treaty; and
          (7) any other copyright treaty to which the United 
        States is a party.
          A ``joint work'' is a work prepared by two or more 
        authors with the intention that their contributions be 
        merged into inseparable or interdependent parts of a 
        unitary whole.
          ``Literary works'' are works, other than audiovisual 
        works, expressed in words, numbers, or other verbal or 
        numerical symbols or indicia, regardless of the nature 
        of the material objects, such as books, periodicals, 
        manuscripts, phonorecords, film, tapes, disks, or 
        cards, in which they are embodied.
          The term ``motion picture exhibition facility'' means 
        a movie theater, screening room, or other venue that is 
        being used primarily for the exhibition of a 
        copyrighted motion picture, if such exhibition is open 
        to the public or is made to an assembled group of 
        viewers outside of a normal circle of a family and its 
        social acquaintances.
          ``Motion pictures'' are audiovisual works consisting 
        of a series of related images which, when shown in 
        succession, impart an impression of motion, together 
        with accompanying sounds, if any.
          To ``perform'' a work means to recite, render, play, 
        dance, or act it, either directly or by means of any 
        device or process or, in the case of a motion picture 
        or other audiovisual work, to show its images in any 
        sequence or to make the sounds accompanying it audible.
          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.
          ``Phonorecords'' are material objects in which 
        sounds, other than those accompanying a motion picture 
        or other audiovisual work, are fixed by any method now 
        known or later developed, and from which the sounds can 
        be perceived, reproduced, or otherwise communicated, 
        either directly or with the aid of a machine or device. 
        The term ``phonorecords'' includes the material object 
        in which the sounds are first fixed.
          ``Pictorial, graphic, and sculptural works'' include 
        two-dimensional and three-dimensional works of fine, 
        graphic, and applied art, photographs, prints and art 
        reproductions, maps, globes, charts, diagrams, models, 
        and technical drawings, including architectural plans. 
        Such works shall include works of artistic 
        craftsmanship insofar as their form but not their 
        mechanical or utilitarian aspects are concerned; the 
        design of a useful article, as defined in this section, 
        shall be considered a pictorial, graphic, or sculptural 
        work only if, and only to the extent that, such design 
        incorporates pictorial, graphic, or sculptural features 
        that can be identified separately from, and are capable 
        of existing independently of, the utilitarian aspects 
        of the article.
          For purposes of section 513, 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.
          A ``pseudonymous work'' is a work on the copies or 
        phonorecords of which the author is identified under a 
        fictitious name.
          ``Publication'' is the distribution of copies or 
        phonorecords of a work to the public by sale or other 
        transfer of ownership, or by rental, lease, or lending. 
        The offering to distribute copies or phonorecords to a 
        group of persons for purposes of further distribution, 
        public performance, or public display, constitutes 
        publication. A public performance or display of a work 
        does not of itself constitute publication.
          To perform or display a work ``publicly'' means--
          (1) to perform or display it at a place open to the 
        public or at any place where a substantial number of 
        persons outside of a normal circle of a family and its 
        social acquaintances is gathered; or
          (2) to transmit or otherwise communicate a 
        performance or display of the work to a place specified 
        by clause (1) or to the public, by means of any device 
        or process, whether the members of the public capable 
        of receiving the performance or display receive it in 
        the same place or in separate places and at the same 
        time or at different times.
          ``Registration'', for purposes of sections 205(c)(2), 
        405, 406, 410(d), 411, 412, and 506(e), means a 
        registration of a claim in the original or the renewed 
        and extended term of copyright.
          ``Sound recordings'' are works that result from the 
        fixation of a series of musical, spoken, or other 
        sounds, but not including the sounds accompanying a 
        motion picture or other audiovisual work, regardless of 
        the nature of the material objects, such as disks, 
        tapes, or other phonorecords, in which they are 
        embodied.
          ``State'' includes the District of Columbia and the 
        Commonwealth of Puerto Rico, and any territories to 
        which this title is made applicable by an Act of 
        Congress.
          A ``transfer of copyright ownership'' is an 
        assignment, mortgage, exclusive license, or any other 
        conveyance, alienation, or hypothecation of a copyright 
        or of any of the exclusive rights comprised in a 
        copyright, whether or not it is limited in time or 
        place of effect, but not including a nonexclusive 
        license.
          A ``transmission program'' is a body of material 
        that, as an aggregate, has been produced for the sole 
        purpose of transmission to the public in sequence and 
        as a unit.
          To ``transmit'' a performance or display is to 
        communicate it by any device or process whereby images 
        or sounds are received beyond the place from which they 
        are sent.
          A ``treaty party'' is a country or intergovernmental 
        organization other than the United States that is a 
        party to an international agreement.
          The ``United States'', when used in a geographical 
        sense, comprises the several States, the District of 
        Columbia and the Commonwealth of Puerto Rico, and the 
        organized territories under the jurisdiction of the 
        United States Government.
          For purposes of section 411, a work is a ``United 
        States work'' only if--
          (1) in the case of a published work, the work is 
        first published--
          (A) in the United States;
          (B) simultaneously in the United States and another 
        treaty party or parties, whose law grants a term of 
        copyright protection that is the same as or longer than 
        the term provided in the United States;
          (C) simultaneously in the United States and a foreign 
        nation that is not a treaty party; or
          (D) in a foreign nation that is not a treaty party, 
        and all of the authors of the work are nationals, 
        domiciliaries, or habitual residents of, or in the case 
        of an audiovisual work legal entities with headquarters 
        in, the United States;
          (2) in the case of an unpublished work, all the 
        authors of the work are nationals, domiciliaries, or 
        habitual residents of the United States, or, in the 
        case of an unpublished audiovisual work, all the 
        authors are legal entities with headquarters in the 
        United States; or
          (3) in the case of a pictorial, graphic, or 
        sculptural work incorporated in a building or 
        structure, the building or structure is located in the 
        United States.
          A ``useful article'' is an article having an 
        intrinsic utilitarian function that is not merely to 
        portray the appearance of the article or to convey 
        information. An article that is normally a part of a 
        useful article is considered a ``useful article''.
          The author's ``widow'' or ``widower'' is the author's 
        surviving spouse under the law of the author's domicile 
        at the time of his or her death, whether or not the 
        spouse has later remarried.
          The ``WIPO Copyright Treaty'' is the WIPO Copyright 
        Treaty concluded at Geneva, Switzerland, on December 
        20, 1996.
          The ``WIPO Performances and Phonograms Treaty'' is 
        the WIPO Performances and Phonograms Treaty concluded 
        at Geneva, Switzerland, on December 20, 1996.
          A ``work of visual art'' is--
          (1) a painting, drawing, print, or sculpture, 
        existing in a single copy, in a limited edition of 200 
        copies or fewer that are signed and consecutively 
        numbered by the author, or, in the case of a sculpture, 
        in multiple cast, carved, or fabricated sculptures of 
        200 or fewer that are consecutively numbered by the 
        author and bear the signature or other identifying mark 
        of the author; or
          (2) a still photographic image produced for 
        exhibition purposes only, existing in a single copy 
        that is signed by the author, or in a limited edition 
        of 200 copies or fewer that are signed and 
        consecutively numbered by the author.
          A work of visual art does not include--
          (A)(i) any poster, map, globe, chart, technical 
        drawing, diagram, model, applied art, motion picture or 
        other audiovisual work, book, magazine, newspaper, 
        periodical, data base, electronic information service, 
        electronic publication, or similar publication;
          (ii) any merchandising item or advertising, 
        promotional, descriptive, covering, or packaging 
        material or container;
          (iii) any portion or part of any item described in 
        clause (i) or (ii);
          (B) any work made for hire; or
          (C) any work not subject to copyright protection 
        under this title.
          A ``work of the United States Government'' is a work 
        prepared by an officer or employee of the United States 
        Government as part of that person's official duties.
          A ``work made for hire'' is--
          (1) a work prepared by an employee within the scope 
        of his or her employment; or
          (2) a work specially ordered or commissioned for use 
        as a contribution to a collective work, as a part of a 
        motion picture or other audiovisual work, as a 
        translation, as a supplementary work, as a compilation, 
        as an instructional text, as a test, as answer material 
        for a test, or as an atlas, if the parties expressly 
        agree in a written instrument signed by them that the 
        work shall be considered a work made for hire. For the 
        purpose of the foregoing sentence, a ``supplementary 
        work'' is a work prepared for publication as a 
        secondary adjunct to a work by another author for the 
        purpose of introducing, concluding, illustrating, 
        explaining, revising, commenting upon, or assisting in 
        the use of the other work, such as forewords, 
        afterwords, pictorial illustrations, maps, charts, 
        tables, editorial notes, musical arrangements, answer 
        material for tests, bibliographies, appendixes, and 
        indexes, and an ``instructional text'' is a literary, 
        pictorial, or graphic work prepared for publication and 
        with the purpose of use in systematic instructional 
        activities.
          In determining whether any work is eligible to be 
        considered a work made for hire under paragraph (2), 
        neither the amendment contained in section 1011(d) of 
        the Intellectual Property and Communications Omnibus 
        Reform Act of 1999, as enacted by section 1000(a)(9) of 
        Public Law 106-113, nor the deletion of the words added 
        by that amendment--
          (A) shall be considered or otherwise given any legal 
        significance, or
          (B) shall be interpreted to indicate congressional 
        approval or disapproval of, or acquiescence in, any 
        judicial determination,
          by the courts or the Copyright Office. Paragraph (2) 
        shall be interpreted as if both section 2(a)(1) of the 
        Work Made For Hire and Copyright Corrections Act of 
        2000 and section 1011(d) of the Intellectual Property 
        and Communications Omnibus Reform Act of 1999, as 
        enacted by section 1000(a)(9) of Public Law 106-113, 
        were never enacted, and without regard to any inaction 
        or awareness by the Congress at any time of any 
        judicial determinations.
          The terms ``WTO Agreement'' and ``WTO member 
        country'' have the meanings given those terms in 
        paragraphs (9) and (10), respectively, of section 2 of 
        the Uruguay Round Agreements Act.

           *       *       *       *       *       *       *


Sec. 106. Exclusive rights in copyrighted works

  Subject to sections 107 through 122, the owner of copyright 
under this title has the exclusive rights to do and to 
authorize any of the following:
          (1) to reproduce the copyrighted work in copies or 
        phonorecords;
          (2) to prepare derivative works based upon the 
        copyrighted work;
          (3) to distribute copies or phonorecords of the 
        copyrighted work to the public by sale or other 
        transfer of ownership, or by rental, lease, or lending;
          (4) in the case of literary, musical, dramatic, and 
        choreographic works, pantomimes, and motion pictures 
        and other audiovisual works, to perform the copyrighted 
        work publicly;
          (5) in the case of literary, musical, dramatic, and 
        choreographic works, pantomimes, and pictorial, 
        graphic, or sculptural works, including the individual 
        images of a motion picture or other audiovisual work, 
        to display the copyrighted work publicly; and
          [(6) in the case of sound recordings, to perform the 
        copyrighted work publicly by means of a digital audio 
        transmission.]
          (6) in the case of sound recordings, to perform the 
        copyrighted work publicly by means of an audio 
        transmission.

           *       *       *       *       *       *       *


Sec. 112. Limitations on exclusive rights: Ephemeral recordings

  (a)(1) Notwithstanding the provisions of section 106, and 
except in the case of a motion picture or other audiovisual 
work, it is not an infringement of copyright for a transmitting 
organization entitled to transmit to the public a performance 
or display of a work, under a license, including a statutory 
license under section 114(f), or transfer of the copyright or 
under the limitations on exclusive rights in sound recordings 
specified by section 114(a), or for a transmitting organization 
that is a broadcast radio or television station licensed as 
such by the Federal Communications Commission and that makes a 
broadcast transmission of a performance of a sound recording in 
a digital format on a nonsubscription basis, to make no more 
than one copy or phonorecord of a particular transmission 
program embodying the performance or display, if--
          (A) the copy or phonorecord is retained and used 
        solely by the transmitting organization that made it, 
        and no further copies or phonorecords are reproduced 
        from it; and
          (B) the copy or phonorecord is used solely for the 
        transmitting organization's own transmissions within 
        its local service area, or for purposes of archival 
        preservation or security; and
          (C) unless preserved exclusively for archival 
        purposes, the copy or phonorecord is destroyed within 
        six months from the date the transmission program was 
        first transmitted to the public.
  (2) In a case in which a transmitting organization entitled 
to make a copy or phonorecord under paragraph (1) in connection 
with the transmission to the public of a performance or display 
of a work is prevented from making such copy or phonorecord by 
reason of the application by the copyright owner of technical 
measures that prevent the reproduction of the work, the 
copyright owner shall make available to the transmitting 
organization the necessary means for permitting the making of 
such copy or phonorecord as permitted under that paragraph, if 
it is technologically feasible and economically reasonable for 
the copyright owner to do so. If the copyright owner fails to 
do so in a timely manner in light of the transmitting 
organization's reasonable business requirements, the 
transmitting organization shall not be liable for a violation 
of section 1201(a)(1) of this title for engaging in such 
activities as are necessary to make such copies or phonorecords 
as permitted under paragraph (1) of this subsection.
  (b) Notwithstanding the provisions of section 106, it is not 
an infringement of copyright for a governmental body or other 
nonprofit organization entitled to transmit a performance or 
display of a work, under section 110(2) or under the 
limitations on exclusive rights in sound recordings specified 
by section 114(a), to make no more than thirty copies or 
phonorecords of a particular transmission program embodying the 
performance or display, if--
          (1) no further copies or phonorecords are reproduced 
        from the copies or phonorecords made under this clause; 
        and
          (2) except for one copy or phonorecord that may be 
        preserved exclusively for archival purposes, the copies 
        or phonorecords are destroyed within seven years from 
        the date the transmission program was first transmitted 
        to the public.
  (c) Notwithstanding the provisions of section 106, it is not 
an infringement of copyright for a governmental body or other 
nonprofit organization to make for distribution no more than 
one copy or phonorecord, for each transmitting organization 
specified in clause (2) of this subsection, of a particular 
transmission program embodying a performance of a nondramatic 
musical work of a religious nature, or of a sound recording of 
such a musical work, if--
          (1) there is no direct or indirect charge for making 
        or distributing any such copies or phonorecords; and
          (2) none of such copies or phonorecords is used for 
        any performance other than a single transmission to the 
        public by a transmitting organization entitled to 
        transmit to the public a performance of the work under 
        a license or transfer of the copyright; and
          (3) except for one copy or phonorecord that may be 
        preserved exclusively for archival purposes, the copies 
        or phonorecords are all destroyed within one year from 
        the date the transmission program was first transmitted 
        to the public.
  (d) Notwithstanding the provisions of section 106, it is not 
an infringement of copyright for a governmental body or other 
nonprofit organization entitled to transmit a performance of a 
work under section 110(8) to make no more than ten copies or 
phonorecords embodying the performance, or to permit the use of 
any such copy or phonorecord by any governmental body or 
nonprofit organization entitled to transmit a performance of a 
work under section 110(8), if--
          (1) any such copy or phonorecord is retained and used 
        solely by the organization that made it, or by a 
        governmental body or nonprofit organization entitled to 
        transmit a performance of a work under section 110(8), 
        and no further copies or phonorecords are reproduced 
        from it; and
          (2) any such copy or phonorecord is used solely for 
        transmissions authorized under section 110(8), or for 
        purposes of archival preservation or security; and
          (3) the governmental body or nonprofit organization 
        permitting any use of any such copy or phonorecord by 
        any governmental body or nonprofit organization under 
        this subsection does not make any charge for such use.
  (e) Statutory License.--(1) A transmitting organization 
entitled to transmit to the public a performance of a sound 
recording under the limitation on exclusive rights specified by 
section 114(d)(1)(C)(iv) or under a statutory license in 
accordance with section 114(f) is entitled to a statutory 
license, under the conditions specified by this subsection, to 
make no more than 1 phonorecord of the sound recording (unless 
the terms and conditions of the statutory license allow for 
more), if the following conditions are satisfied:
          (A) The phonorecord is retained and used solely by 
        the transmitting organization that made it, and no 
        further phonorecords are reproduced from it.
          (B) The phonorecord is used solely for the 
        transmitting organization's own transmissions 
        originating in the United States under a statutory 
        license in accordance with section 114(f) or the 
        limitation on exclusive rights specified by section 
        114(d)(1)(C)(iv).
          (C) Unless preserved exclusively for purposes of 
        archival preservation, the phonorecord is destroyed 
        within 6 months from the date the sound recording was 
        first transmitted to the public using the phonorecord.
          (D) Phonorecords of the sound recording have been 
        distributed to the public under the authority of the 
        copyright owner or the copyright owner authorizes the 
        transmitting entity to transmit the sound recording, 
        and the transmitting entity makes the phonorecord under 
        this subsection from a phonorecord lawfully made and 
        acquired under the authority of the copyright owner.
  (2) Notwithstanding any provision of the antitrust laws, any 
copyright owners of sound recordings and any transmitting 
organizations entitled to a statutory license under this 
subsection may negotiate and agree upon royalty rates and 
license terms and conditions for making phonorecords of such 
sound recordings under this section and the proportionate 
division of fees paid among copyright owners, and may designate 
common agents to negotiate, agree to, pay, or receive such 
royalty payments.
  (3) Proceedings under chapter 8 shall determine reasonable 
rates and terms of royalty payments for the activities 
specified by paragraph (1) during the 5-year period beginning 
on January 1 of the second year following the year in which the 
proceedings are to be commenced, or such other period as the 
parties may agree. Such rates shall include a minimum fee for 
each type of service offered by transmitting organizations. Any 
copyright owners of sound recordings or any transmitting 
organizations entitled to a statutory license under this 
subsection may submit to the Copyright Royalty Judges licenses 
covering such activities with respect to such sound recordings. 
The parties to each proceeding shall bear their own costs.
  (4) The schedule of reasonable rates and terms determined by 
the Copyright Royalty Judges shall, subject to paragraph (5), 
be binding on all copyright owners of sound recordings and 
transmitting organizations entitled to a statutory license 
under this subsection during the 5-year period specified in 
paragraph (3), or such other period as the parties may agree. 
Such rates shall include a minimum fee for each type of service 
offered by transmitting organizations. The Copyright Royalty 
Judges shall establish rates that most clearly represent the 
fees that would have been negotiated in the marketplace between 
a willing buyer and a willing seller. In determining such rates 
and terms, the Copyright Royalty Judges shall base their 
decision on economic, competitive, and programming information 
presented by the parties, including--
          (A) whether use of the service may substitute for or 
        may promote the sales of phonorecords or otherwise 
        interferes with or enhances the copyright owner's 
        traditional streams of revenue; and
          (B) the relative roles of the copyright owner and the 
        transmitting organization in the copyrighted work and 
        the service made available to the public with respect 
        to relative creative contribution, technological 
        contribution, capital investment, cost, and risk.
In establishing such rates and terms, the Copyright Royalty 
Judges may consider the rates and terms under voluntary license 
agreements described in paragraphs (2) and (3). The Copyright 
Royalty Judges shall also establish requirements by which 
copyright owners may receive reasonable notice of the use of 
their sound recordings under this section, and under which 
records of such use shall be kept and made available by 
transmitting organizations entitled to obtain a statutory 
license under this subsection.
  (5) License agreements voluntarily negotiated at any time 
between 1 or more copyright owners of sound recordings and 1 or 
more transmitting organizations entitled to obtain a statutory 
license under this subsection shall be given effect in lieu of 
any decision by the Librarian of Congress or determination by 
the Copyright Royalty Judges.
  (6)(A) Any person who wishes to make a phonorecord of a sound 
recording under a statutory license in accordance with this 
subsection may do so without infringing the exclusive right of 
the copyright owner of the sound recording under section 
106(1)--
          (i) by complying with such notice requirements as the 
        Copyright Royalty Judges shall prescribe by regulation 
        and by paying royalty fees in accordance with this 
        subsection; or
          (ii) if such royalty fees have not been set, by 
        agreeing to pay such royalty fees as shall be 
        determined in accordance with this subsection.
  (B) Any royalty payments in arrears shall be made on or 
before the 20th day of the month next succeeding the month in 
which the royalty fees are set.
  (7) If a transmitting organization entitled to make a 
phonorecord under this subsection is prevented from making such 
phonorecord by reason of the application by the copyright owner 
of technical measures that prevent the reproduction of the 
sound recording, the copyright owner shall make available to 
the transmitting organization the necessary means for 
permitting the making of such phonorecord as permitted under 
this subsection, if it is technologically feasible and 
economically reasonable for the copyright owner to do so. If 
the copyright owner fails to do so in a timely manner in light 
of the transmitting organization's reasonable business 
requirements, the transmitting organization shall not be liable 
for a violation of section 1201(a)(1) of this title for 
engaging in such activities as are necessary to make such 
phonorecords as permitted under this subsection.
  (8) Nothing in this subsection annuls, limits, impairs, or 
otherwise affects in any way the existence or value of any of 
the exclusive rights of the copyright owners in a sound 
recording, except as otherwise provided in this subsection, or 
in a musical work, including the exclusive rights to reproduce 
and distribute a sound recording or musical work, including by 
means of a digital phonorecord delivery, under sections 106(1), 
106(3), and 115, and the right to perform publicly a sound 
recording or musical work, including by means of [a digital 
audio transmission] an audio transmission, under sections 
106(4) and 106(6).
  (f)(1) Notwithstanding the provisions of section 106, and 
without limiting the application of subsection (b), it is not 
an infringement of copyright for a governmental body or other 
nonprofit educational institution entitled under section 110(2) 
to transmit a performance or display to make copies or 
phonorecords of a work that is in digital form and, solely to 
the extent permitted in paragraph (2), of a work that is in 
analog form, embodying the performance or display to be used 
for making transmissions authorized under section 110(2), if--
          (A) such copies or phonorecords are retained and used 
        solely by the body or institution that made them, and 
        no further copies or phonorecords are reproduced from 
        them, except as authorized under section 110(2); and
          (B) such copies or phonorecords are used solely for 
        transmissions authorized under section 110(2).
  (2) This subsection does not authorize the conversion of 
print or other analog versions of works into digital formats, 
except that such conversion is permitted hereunder, only with 
respect to the amount of such works authorized to be performed 
or displayed under section 110(2), if--
          (A) no digital version of the work is available to 
        the institution; or
          (B) the digital version of the work that is available 
        to the institution is subject to technological 
        protection measures that prevent its use for section 
        110(2).
  (g) The transmission program embodied in a copy or 
phonorecord made under this section is not subject to 
protection as a derivative work under this title except with 
the express consent of the owners of copyright in the 
preexisting works employed in the program.

           *       *       *       *       *       *       *


Sec. 114. Scope of exclusive rights in sound recordings

  (a) The exclusive rights of the owner of copyright in a sound 
recording are limited to the rights specified by clauses (1), 
(2), (3) and (6) of section 106, and do not include any right 
of performance under section 106(4).
  (b) The exclusive right of the owner of copyright in a sound 
recording under clause (1) of section 106 is limited to the 
right to duplicate the sound recording in the form of 
phonorecords or copies that directly or indirectly recapture 
the actual sounds fixed in the recording. The exclusive right 
of the owner of copyright in a sound recording under clause (2) 
of section 106 is limited to the right to prepare a derivative 
work in which the actual sounds fixed in the sound recording 
are rearranged, remixed, or otherwise altered in sequence or 
quality. The exclusive rights of the owner of copyright in a 
sound recording under clauses (1) and (2) of section 106 do not 
extend to the making or duplication of another sound recording 
that consists entirely of an independent fixation of other 
sounds, even though such sounds imitate or simulate those in 
the copyrighted sound recording. The exclusive rights of the 
owner of copyright in a sound recording under clauses (1), (2), 
and (3) of section 106 do not apply to sound recordings 
included in educational television and radio programs (as 
defined in section 397 of title 47) distributed or transmitted 
by or through public broadcasting entities (as defined by 
section 118(f)): Provided, That copies or phonorecords of said 
programs are not commercially distributed by or through public 
broadcasting entities to the general public.
  (c) This section does not limit or impair the exclusive right 
to perform publicly, by means of a phonorecord, any of the 
works specified by section 106(4).
  (d) Limitations on Exclusive Right.--Notwithstanding the 
provisions of section 106(6)--
          (1) Exempt transmissions and retransmissions.--The 
        performance of a sound recording publicly by means of 
        [a digital] an audio transmission, other than as a part 
        of an interactive service, is not an infringement of 
        section 106(6) if the performance is part of--
                  [(A) a nonsubscription broadcast 
                transmission;]
                  [(B)] (A) a retransmission of a 
                [nonsubscription] licensed nonsubscription 
                broadcast transmission: Provided, That, in the 
                case of a retransmission of a radio station's 
                broadcast transmission--
                          (i) the radio station's broadcast 
                        transmission is not willfully or 
                        repeatedly retransmitted more than a 
                        radius of 150 miles from the site of 
                        the radio broadcast transmitter, 
                        however--
                                  (I) the 150 mile limitation 
                                under this clause shall not 
                                apply when a [nonsubscription] 
                                licensed nonsubscription 
                                broadcast transmission by a 
                                radio station licensed by the 
                                Federal Communications 
                                Commission is retransmitted on 
                                a nonsubscription basis by a 
                                terrestrial broadcast station, 
                                terrestrial translator, or 
                                terrestrial repeater licensed 
                                by the Federal Communications 
                                Commission; and
                                  (II) in the case of a 
                                subscription retransmission of 
                                a [nonsubscription] licensed 
                                nonsubscription broadcast 
                                retransmission covered by 
                                subclause (I), the 150 mile 
                                radius shall be measured from 
                                the transmitter site of such 
                                broadcast retransmitter;
                          (ii) the retransmission is of radio 
                        station broadcast transmissions that 
                        are--
                                  (I) obtained by the 
                                retransmitter over the air;
                                  (II) not electronically 
                                processed by the retransmitter 
                                to deliver separate and 
                                discrete signals; and
                                  (III) retransmitted only 
                                within the local communities 
                                served by the retransmitter;
                          (iii) the radio station's broadcast 
                        transmission was being retransmitted to 
                        cable systems (as defined in section 
                        111(f)) by a satellite carrier on 
                        January 1, 1995, and that 
                        retransmission was being retransmitted 
                        by cable systems as a separate and 
                        discrete signal, and the satellite 
                        carrier obtains the radio station's 
                        broadcast transmission in an analog 
                        format: Provided, That the broadcast 
                        transmission being retransmitted may 
                        embody the programming of no more than 
                        one radio station; or
                          (iv) the radio station's broadcast 
                        transmission is made by a noncommercial 
                        educational broadcast station funded on 
                        or after January 1, 1995, under section 
                        396(k) of the Communications Act of 
                        1934 (47 U.S.C. 396(k)), consists 
                        solely of noncommercial educational and 
                        cultural radio programs, and the 
                        retransmission, whether or not 
                        simultaneous, is a [nonsubscription] 
                        licensed nonsubscription terrestrial 
                        broadcast retransmission; or
                  [(C)] (B) a transmission that comes within 
                any of the following categories--
                          (i) a prior or simultaneous 
                        transmission incidental to an exempt 
                        transmission, such as a feed received 
                        by and then retransmitted by an exempt 
                        transmitter: Provided, That such 
                        incidental transmissions do not include 
                        any subscription transmission directly 
                        for reception by members of the public;
                          (ii) a transmission within a business 
                        establishment, confined to its premises 
                        or the immediately surrounding 
                        vicinity;
                          (iii) a retransmission by any 
                        retransmitter, including a multichannel 
                        video programming distributor as 
                        defined in section 602(12) of the 
                        Communications Act of 1934 (47 U.S.C. 
                        522(12)), of a transmission by a 
                        transmitter licensed to publicly 
                        perform the sound recording as a part 
                        of that transmission, if the 
                        retransmission is simultaneous with the 
                        licensed transmission and authorized by 
                        the transmitter; or
                          (iv) a transmission to a business 
                        establishment for use in the ordinary 
                        course of its business: Provided, That 
                        the business recipient does not 
                        retransmit the transmission outside of 
                        its premises or the immediately 
                        surrounding vicinity, and that the 
                        transmission does not exceed the sound 
                        recording performance complement. 
                        Nothing in this clause shall limit the 
                        scope of the exemption in clause (ii).
          (2) Statutory licensing of certain transmissions.--
        The performance of a sound recording publicly by means 
        of a [subscription digital] subscription audio 
        transmission not exempt under paragraph (1), an 
        eligible nonsubscription transmission, or a 
        transmission not exempt under paragraph (1) that is 
        made by a preexisting satellite digital audio radio 
        service shall be subject to statutory licensing, in 
        accordance with subsection (f) if--
                  (A)(i) the transmission is not part of an 
                interactive service;
                  (ii) except in the case of a transmission to 
                a business establishment, the transmitting 
                entity does not automatically and intentionally 
                cause any device receiving the transmission to 
                switch from one program channel to another; and
                  (iii) except as provided in section 1002(e), 
                the transmission of the sound recording is 
                accompanied, if technically feasible, by the 
                information encoded in that sound recording, if 
                any, by or under the authority of the copyright 
                owner of that sound recording, that identifies 
                the title of the sound recording, the featured 
                recording artist who performs on the sound 
                recording, and related information, including 
                information concerning the underlying musical 
                work and its writer;
                  (B) in the case of a subscription 
                transmission not exempt under paragraph (1) 
                that is made by a preexisting subscription 
                service in the same transmission medium used by 
                such service on July 31, 1998, or in the case 
                of a transmission not exempt under paragraph 
                (1) that is made by a preexisting satellite 
                digital audio radio service--
                          (i) the transmission does not exceed 
                        the sound recording performance 
                        complement; and
                          (ii) the transmitting entity does not 
                        cause to be published by means of an 
                        advance program schedule or prior 
                        announcement the titles of the specific 
                        sound recordings or phonorecords 
                        embodying such sound recordings to be 
                        transmitted; and
                  (C) in the case of an eligible 
                nonsubscription transmission or a subscription 
                transmission not exempt under paragraph (1) 
                that is made by a new subscription service or 
                by a preexisting subscription service other 
                than in the same transmission medium used by 
                such service on July 31, 1998--
                          (i) the transmission does not exceed 
                        the sound recording performance 
                        complement, except that this 
                        requirement shall not apply in the case 
                        of a retransmission of a broadcast 
                        transmission if the retransmission is 
                        made by a transmitting entity that does 
                        not have the right or ability to 
                        control the programming of the 
                        broadcast station making the broadcast 
                        transmission, unless--
                                  (I) the broadcast station 
                                makes broadcast transmissions--
                                          (aa) in digital 
                                        format that regularly 
                                        exceed the sound 
                                        recording performance 
                                        complement; or
                                          (bb) in analog 
                                        format, a substantial 
                                        portion of which, on a 
                                        weekly basis, exceed 
                                        the sound recording 
                                        performance complement; 
                                        and
                                  (II) the sound recording 
                                copyright owner or its 
                                representative has notified the 
                                transmitting entity in writing 
                                that broadcast transmissions of 
                                the copyright owner's sound 
                                recordings exceed the sound 
                                recording performance 
                                complement as provided in this 
                                clause;
                          (ii) the transmitting entity does not 
                        cause to be published, or induce or 
                        facilitate the publication, by means of 
                        an advance program schedule or prior 
                        announcement, the titles of the 
                        specific sound recordings to be 
                        transmitted, the phonorecords embodying 
                        such sound recordings, or, other than 
                        for illustrative purposes, the names of 
                        the featured recording artists, except 
                        that this clause does not disqualify a 
                        transmitting entity that makes a prior 
                        announcement that a particular artist 
                        will be featured within an unspecified 
                        future time period, and in the case of 
                        a retransmission of a broadcast 
                        transmission by a transmitting entity 
                        that does not have the right or ability 
                        to control the programming of the 
                        broadcast transmission, the requirement 
                        of this clause shall not apply to a 
                        prior oral announcement by the 
                        broadcast station, or to an advance 
                        program schedule published, induced, or 
                        facilitated by the broadcast station, 
                        if the transmitting entity does not 
                        have actual knowledge and has not 
                        received written notice from the 
                        copyright owner or its representative 
                        that the broadcast station publishes or 
                        induces or facilitates the publication 
                        of such advance program schedule, or if 
                        such advance program schedule is a 
                        schedule of classical music programming 
                        published by the broadcast station in 
                        the same manner as published by that 
                        broadcast station on or before 
                        September 30, 1998;
                          (iii) the transmission--
                                  (I) is not part of an 
                                archived program of less than 5 
                                hours duration;
                                  (II) is not part of an 
                                archived program of 5 hours or 
                                greater in duration that is 
                                made available for a period 
                                exceeding 2 weeks;
                                  (III) is not part of a 
                                continuous program which is of 
                                less than 3 hours duration; or
                                  (IV) is not part of an 
                                identifiable program in which 
                                performances of sound 
                                recordings are rendered in a 
                                predetermined order, other than 
                                an archived or continuous 
                                program, that is transmitted 
                                at--
                                          (aa) more than 3 
                                        times in any 2-week 
                                        period that have been 
                                        publicly announced in 
                                        advance, in the case of 
                                        a program of less than 
                                        1 hour in duration, or
                                          (bb) more than 4 
                                        times in any 2-week 
                                        period that have been 
                                        publicly announced in 
                                        advance, in the case of 
                                        a program of 1 hour or 
                                        more in duration,
                         except that the requirement of this 
                        subclause shall not apply in the case 
                        of a retransmission of a broadcast 
                        transmission by a transmitting entity 
                        that does not have the right or ability 
                        to control the programming of the 
                        broadcast transmission, unless the 
                        transmitting entity is given notice in 
                        writing by the copyright owner of the 
                        sound recording that the broadcast 
                        station makes broadcast transmissions 
                        that regularly violate such 
                        requirement;
                          (iv) the transmitting entity does not 
                        knowingly perform the sound recording, 
                        as part of a service that offers 
                        transmissions of visual images 
                        contemporaneously with transmissions of 
                        sound recordings, in a manner that is 
                        likely to cause confusion, to cause 
                        mistake, or to deceive, as to the 
                        affiliation, connection, or association 
                        of the copyright owner or featured 
                        recording artist with the transmitting 
                        entity or a particular product or 
                        service advertised by the transmitting 
                        entity, or as to the origin, 
                        sponsorship, or approval by the 
                        copyright owner or featured recording 
                        artist of the activities of the 
                        transmitting entity other than the 
                        performance of the sound recording 
                        itself;
                          (v) the transmitting entity 
                        cooperates to prevent, to the extent 
                        feasible without imposing substantial 
                        costs or burdens, a transmission 
                        recipient or any other person or entity 
                        from automatically scanning the 
                        transmitting entity's transmissions 
                        alone or together with transmissions by 
                        other transmitting entities in order to 
                        select a particular sound recording to 
                        be transmitted to the transmission 
                        recipient, except that the requirement 
                        of this clause shall not apply to a 
                        satellite digital audio service that is 
                        in operation, or that is licensed by 
                        the Federal Communications Commission, 
                        on or before July 31, 1998;
                          (vi) the transmitting entity takes no 
                        affirmative steps to cause or induce 
                        the making of a phonorecord by the 
                        transmission recipient, and if the 
                        technology used by the transmitting 
                        entity enables the transmitting entity 
                        to limit the making by the transmission 
                        recipient of phonorecords of the 
                        transmission directly in a digital 
                        format, the transmitting entity sets 
                        such technology to limit such making of 
                        phonorecords to the extent permitted by 
                        such technology;
                          (vii) phonorecords of the sound 
                        recording have been distributed to the 
                        public under the authority of the 
                        copyright owner or the copyright owner 
                        authorizes the transmitting entity to 
                        transmit the sound recording, and the 
                        transmitting entity makes the 
                        transmission from a phonorecord 
                        lawfully made under the authority of 
                        the copyright owner, except that the 
                        requirement of this clause shall not 
                        apply to a retransmission of a 
                        broadcast transmission by a 
                        transmitting entity that does not have 
                        the right or ability to control the 
                        programming of the broadcast 
                        transmission, unless the transmitting 
                        entity is given notice in writing by 
                        the copyright owner of the sound 
                        recording that the broadcast station 
                        makes broadcast transmissions that 
                        regularly violate such requirement;
                          (viii) the transmitting entity 
                        accommodates and does not interfere 
                        with the transmission of technical 
                        measures that are widely used by sound 
                        recording copyright owners to identify 
                        or protect copyrighted works, and that 
                        are technically feasible of being 
                        transmitted by the transmitting entity 
                        without imposing substantial costs on 
                        the transmitting entity or resulting in 
                        perceptible aural or visual degradation 
                        of the [digital signal] signal, except 
                        that the requirement of this clause 
                        shall not apply to a satellite digital 
                        audio service that is in operation, or 
                        that is licensed under the authority of 
                        the Federal Communications Commission, 
                        on or before July 31, 1998, to the 
                        extent that such service has designed, 
                        developed, or made commitments to 
                        procure equipment or technology that is 
                        not compatible with such technical 
                        measures before such technical measures 
                        are widely adopted by sound recording 
                        copyright owners; and
                          (ix) the transmitting entity 
                        identifies in textual data the sound 
                        recording during, but not before, the 
                        time it is performed, including the 
                        title of the sound recording, the title 
                        of the phonorecord embodying such sound 
                        recording, if any, and the featured 
                        recording artist, in a manner to permit 
                        it to be displayed to the transmission 
                        recipient by the device or technology 
                        intended for receiving the service 
                        provided by the transmitting entity, 
                        except that the obligation in this 
                        clause shall not take effect until 1 
                        year after the date of the enactment of 
                        the Digital Millennium Copyright Act 
                        and shall not apply in the case of a 
                        retransmission of a broadcast 
                        transmission by a transmitting entity 
                        that does not have the right or ability 
                        to control the programming of the 
                        broadcast transmission, or in the case 
                        in which devices or technology intended 
                        for receiving the service provided by 
                        the transmitting entity that have the 
                        capability to display such textual data 
                        are not common in the marketplace.
          (3) Licenses for transmissions by interactive 
        services.--
                  (A) No interactive service shall be granted 
                an exclusive license under section 106(6) for 
                the performance of a sound recording publicly 
                by means of digital audio transmission for a 
                period in excess of 12 months, except that with 
                respect to an exclusive license granted to an 
                interactive service by a licensor that holds 
                the copyright to 1,000 or fewer sound 
                recordings, the period of such license shall 
                not exceed 24 months: Provided, however, That 
                the grantee of such exclusive license shall be 
                ineligible to receive another exclusive license 
                for the performance of that sound recording for 
                a period of 13 months from the expiration of 
                the prior exclusive license.
                  (B) The limitation set forth in subparagraph 
                (A) of this paragraph shall not apply if--
                          (i) the licensor has granted and 
                        there remain in effect licenses under 
                        section 106(6) for the public 
                        performance of sound recordings by 
                        means of digital audio transmission by 
                        at least 5 different interactive 
                        services: Provided, however, That each 
                        such license must be for a minimum of 
                        10 percent of the copyrighted sound 
                        recordings owned by the licensor that 
                        have been licensed to interactive 
                        services, but in no event less than 50 
                        sound recordings; or
                          (ii) the exclusive license is granted 
                        to perform publicly up to 45 seconds of 
                        a sound recording and the sole purpose 
                        of the performance is to promote the 
                        distribution or performance of that 
                        sound recording.
                  (C) Notwithstanding the grant of an exclusive 
                or nonexclusive license of the right of public 
                performance under section 106(6), an 
                interactive service may not publicly perform a 
                sound recording unless a license has been 
                granted for the public performance of any 
                copyrighted musical work contained in the sound 
                recording: Provided, That such license to 
                publicly perform the copyrighted musical work 
                may be granted either by a performing rights 
                society representing the copyright owner or by 
                the copyright owner.
                  (D) The performance of a sound recording by 
                means of a retransmission of a digital audio 
                transmission is not an infringement of section 
                106(6) if--
                          (i) the retransmission is of a 
                        transmission by an interactive service 
                        licensed to publicly perform the sound 
                        recording to a particular member of the 
                        public as part of that transmission; 
                        and
                          (ii) the retransmission is 
                        simultaneous with the licensed 
                        transmission, authorized by the 
                        transmitter, and limited to that 
                        particular member of the public 
                        intended by the interactive service to 
                        be the recipient of the transmission.
                  (E) For the purposes of this paragraph--
                          (i) a ``licensor'' shall include the 
                        licensing entity and any other entity 
                        under any material degree of common 
                        ownership, management, or control that 
                        owns copyrights in sound recordings; 
                        and
                          (ii) a ``performing rights society'' 
                        is an association or corporation that 
                        licenses the public performance of 
                        nondramatic musical works on behalf of 
                        the copyright owner, such as the 
                        American Society of Composers, Authors 
                        and Publishers, Broadcast Music, Inc., 
                        and SESAC, Inc.
          (4) Rights not otherwise limited.--
                  (A) Except as expressly provided in this 
                section, this section does not limit or impair 
                the exclusive right to perform a sound 
                recording publicly by means of [a digital audio 
                transmission] an audio transmission under 
                section 106(6).
                  (B) Nothing in this section annuls or limits 
                in any way--
                          (i) the exclusive right to publicly 
                        perform a musical work, including by 
                        means of [a digital audio transmission] 
                        an audio transmission, under section 
                        106(4);
                          (ii) the exclusive rights in a sound 
                        recording or the musical work embodied 
                        therein under sections 106(1), 106(2) 
                        and 106(3); or
                          (iii) any other rights under any 
                        other clause of section 106, or 
                        remedies available under this title, as 
                        such rights or remedies exist either 
                        before or after the date of enactment 
                        of the Digital Performance Right in 
                        Sound Recordings Act of 1995.
                  (C) Any limitations in this section on the 
                exclusive right under section 106(6) apply only 
                to the exclusive right under section 106(6) and 
                not to any other exclusive rights under section 
                106. Nothing in this section shall be construed 
                to annul, limit, impair or otherwise affect in 
                any way the ability of the owner of a copyright 
                in a sound recording to exercise the rights 
                under sections 106(1), 106(2) and 106(3), or to 
                obtain the remedies available under this title 
                pursuant to such rights, as such rights and 
                remedies exist either before or after the date 
                of enactment of the Digital Performance Right 
                in Sound Recordings Act of 1995.
  (e) Authority for Negotiations.--
          (1) Notwithstanding any provision of the antitrust 
        laws, in negotiating statutory licenses in accordance 
        with subsection (f), any copyright owners of sound 
        recordings and any entities performing sound recordings 
        affected by this section may negotiate and agree upon 
        the royalty rates and license terms and conditions for 
        the performance of such sound recordings and the 
        proportionate division of fees paid among copyright 
        owners, and may designate common agents on a 
        nonexclusive basis to negotiate, agree to, pay, or 
        receive payments.
          (2) For licenses granted under section 106(6), other 
        than statutory licenses, such as for performances by 
        interactive services or performances that exceed the 
        sound recording performance complement--
                  (A) copyright owners of sound recordings 
                affected by this section may designate common 
                agents to act on their behalf to grant licenses 
                and receive and remit royalty payments: 
                Provided, That each copyright owner shall 
                establish the royalty rates and material 
                license terms and conditions unilaterally, that 
                is, not in agreement, combination, or concert 
                with other copyright owners of sound 
                recordings; and
                  (B) entities performing sound recordings 
                affected by this section may designate common 
                agents to act on their behalf to obtain 
                licenses and collect and pay royalty fees: 
                Provided, That each entity performing sound 
                recordings shall determine the royalty rates 
                and material license terms and conditions 
                unilaterally, that is, not in agreement, 
                combination, or concert with other entities 
                performing sound recordings.
  (f) Licenses for Certain Nonexempt Transmissions.--
          (1)(A) Proceedings under chapter 8 shall determine 
        reasonable rates and terms of royalty payments for 
        transmissions subject to statutory licensing under 
        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 pursuant to 
        subparagraph (A) or (B) of section 804(b)(3), as the 
        case may be, or such other period as the parties may 
        agree. The parties to each proceeding shall bear their 
        own costs.
          (B) The schedule of reasonable rates and terms 
        determined by the Copyright Royalty Judges shall, 
        subject to paragraph (2), be binding on all copyright 
        owners of sound recordings and entities performing 
        sound recordings affected by this paragraph during the 
        5-year period specified in subparagraph (A), or such 
        other period as the parties may agree. Such rates and 
        terms shall distinguish among the different types of 
        services then in operation and shall include a minimum 
        fee for each such type of service, such differences to 
        be based on criteria including the quantity and nature 
        of the use of sound recordings and the degree to which 
        use of the service may substitute for or may promote 
        the purchase of phonorecords by consumers. The 
        Copyright Royalty Judges shall establish rates and 
        terms that most clearly represent the rates and terms 
        that would have been negotiated in the marketplace 
        between a willing buyer and a willing seller. In 
        determining such rates and terms, the Copyright Royalty 
        Judges--
                  (i) shall base their decision on economic, 
                competitive, and programming information 
                presented by the parties, including--
                          (I) whether use of the service may 
                        substitute for or may promote the sales 
                        of phonorecords or otherwise may 
                        interfere with or may enhance the sound 
                        recording copyright owner's other 
                        streams of revenue from the copyright 
                        owner's sound recordings; and
                          (II) the relative roles of the 
                        copyright owner and the transmitting 
                        entity in the copyrighted work and the 
                        service made available to the public 
                        with respect to relative creative 
                        contribution, technological 
                        contribution, capital investment, cost, 
                        and risk; and
                  (ii) may consider the rates and terms for 
                comparable types of audio transmission services 
                and comparable circumstances under voluntary 
                license agreements.
          (C) The procedures under subparagraphs (A) and (B) 
        shall also be initiated pursuant to a petition filed by 
        any sound recording copyright owner or any transmitting 
        entity indicating that a new type of service on which 
        sound recordings are performed is or is about to become 
        operational, for the purpose of determining reasonable 
        terms and rates of royalty payments with respect to 
        such new type of service for the period beginning with 
        the inception of such new type of service and ending on 
        the date on which the royalty rates and terms for 
        eligible nonsubscription services and new subscription 
        services, or preexisting subscription services and 
        preexisting satellite digital audio radio services, as 
        the case may be, most recently determined under 
        subparagraph (A) or (B) and chapter 8 expire, or such 
        other period as the parties may agree.
                  (D)(i) Notwithstanding the provisions of 
                subparagraphs (A) through (C), the royalty rate 
                shall be as follows for nonsubscription 
                broadcast transmissions by each individual 
                terrestrial broadcast station licensed as such 
                by the Federal Communications Commission that 
                satisfies the conditions in clause (ii)--
                          (I) $10 per calendar year, in the 
                        case of nonsubscription broadcast 
                        transmissions by a broadcast station 
                        that generated revenue in the 
                        immediately preceding calendar year of 
                        less than $100,000;
                          (II) $100 per calendar year, in the 
                        case of nonsubscription broadcast 
                        transmissions by a broadcast station 
                        that is a public broadcasting entity as 
                        defined in section 118(f) and generated 
                        revenue in the immediately preceding 
                        calendar year of $100,000 or more, but 
                        less than $1,500,000; and
                          (III) $500 per calendar year, in the 
                        case of nonsubscription broadcast 
                        transmissions by a broadcast station 
                        that is not a public broadcasting 
                        entity as defined in section 118(f) and 
                        generated revenue in the immediately 
                        preceding calendar year of $100,000 or 
                        more, but less than $1,500,000.
                  (ii) An individual terrestrial broadcast 
                station licensed as such by the Federal 
                Communications Commission is eligible for a 
                royalty rate set forth in clause (i) if--
                          (I) the revenue from the operation of 
                        that individual station was less than 
                        $1,500,000 during the immediately 
                        preceding calendar year;
                          (II) the aggregate revenue of the 
                        owner and operator of the broadcast 
                        station and any person directly or 
                        indirectly controlling, controlled by, 
                        or under common control with such owner 
                        or operator, from any source, was less 
                        than $10,000,000 during the immediately 
                        preceding calendar year; and
                          (III) the owner or operator of the 
                        broadcast station provides to the 
                        nonprofit collective designated by the 
                        Copyright Royalty Judges to distribute 
                        receipts from the licensing of 
                        transmissions in accordance with 
                        subsection (f), by no later than 
                        January 31 of the relevant calendar 
                        year, a written and signed 
                        certification of the station's 
                        eligibility under this clause and the 
                        applicable subclause of clause (i), in 
                        accordance with requirements the 
                        Copyright Royalty Judges shall 
                        prescribe by regulation.
                  (iii) For purposes of clauses (i) and (ii)--
                          (I) revenue shall be calculated in 
                        accordance with generally accepted 
                        accounting principles;
                          (II) revenue generated by a 
                        terrestrial broadcast station shall 
                        include all revenue from the operation 
                        of the station, from any source; and
                          (III) in the case of affiliated 
                        broadcast stations, revenue shall be 
                        allocated reasonably to individual 
                        stations associated with the revenue.
                  (iv) The royalty rates specified in clause 
                (i) shall not be admissible as evidence or 
                otherwise taken into account in determining 
                royalty rates in a proceeding under chapter 8, 
                or in any other administrative, judicial, or 
                other Federal Government proceeding involving 
                the setting or adjustment of the royalties 
                payable for the public performance or 
                reproduction in ephemeral phonorecords or 
                copies of sound recordings, the determination 
                of terms or conditions related thereto, or the 
                establishment of notice or recordkeeping 
                requirements.
          (2) License agreements voluntarily negotiated at any 
        time between 1 or more copyright owners of sound 
        recordings and 1 or more entities performing sound 
        recordings shall be given effect in lieu of any 
        decision by the Librarian of Congress or determination 
        by the Copyright Royalty Judges.
          (3)(A) The Copyright Royalty Judges shall also 
        establish requirements by which copyright owners may 
        receive reasonable notice of the use of their sound 
        recordings under this section, and under which records 
        of such use shall be kept and made available by 
        entities performing sound recordings. The notice and 
        recordkeeping rules in effect on the day before the 
        effective date of the Copyright Royalty and 
        Distribution Reform Act of 2004 shall remain in effect 
        unless and until new regulations are promulgated by the 
        Copyright Royalty Judges. If new regulations are 
        promulgated under this subparagraph, the Copyright 
        Royalty Judges shall take into account the substance 
        and effect of the rules in effect on the day before the 
        effective date of the Copyright Royalty and 
        Distribution Reform Act of 2004 and shall, to the 
        extent practicable, avoid significant disruption of the 
        functions of any designated agent authorized to collect 
        and distribute royalty fees.
          (B) Any person who wishes to perform a sound 
        recording publicly by means of a transmission eligible 
        for statutory licensing under this subsection may do so 
        without infringing the exclusive right of the copyright 
        owner of the sound recording--
                  (i) by complying with such notice 
                requirements as the Copyright Royalty Judges 
                shall prescribe by regulation and by paying 
                royalty fees in accordance with this 
                subsection; or
                  (ii) if such royalty fees have not been set, 
                by agreeing to pay such royalty fees as shall 
                be determined in accordance with this 
                subsection.
          (C) Any royalty payments in arrears shall be made on 
        or before the twentieth day of the month next 
        succeeding the month in which the royalty fees are set.
          (4)(A) Notwithstanding section 112(e) and the other 
        provisions of this subsection, the receiving agent may 
        enter into agreements for the reproduction and 
        performance of sound recordings under section 112(e) 
        and this section by any 1 or more commercial webcasters 
        or noncommercial webcasters for a period of not more 
        than 11 years beginning on January 1, 2005, that, once 
        published in the Federal Register pursuant to 
        subparagraph (B), shall be binding on all copyright 
        owners of sound recordings and other persons entitled 
        to payment under this section, in lieu of any 
        determination by the Copyright Royalty Judges. Any such 
        agreement for commercial webcasters may include 
        provisions for payment of royalties on the basis of a 
        percentage of revenue or expenses, or both, and include 
        a minimum fee. Any such agreement may include other 
        terms and conditions, including requirements by which 
        copyright owners may receive notice of the use of their 
        sound recordings and under which records of such use 
        shall be kept and made available by commercial 
        webcasters or noncommercial webcasters. The receiving 
        agent shall be under no obligation to negotiate any 
        such agreement. The receiving agent shall have no 
        obligation to any copyright owner of sound recordings 
        or any other person entitled to payment under this 
        section in negotiating any such agreement, and no 
        liability to any copyright owner of sound recordings or 
        any other person entitled to payment under this section 
        for having entered into such agreement.
          (B) The Copyright Office shall cause to be published 
        in the Federal Register any agreement entered into 
        pursuant to subparagraph (A). Such publication shall 
        include a statement containing the substance of 
        subparagraph (C). Such agreements shall not be included 
        in the Code of Federal Regulations. Thereafter, the 
        terms of such agreement shall be available, as an 
        option, to any commercial webcaster or noncommercial 
        webcaster meeting the eligibility conditions of such 
        agreement.
          (C) Neither subparagraph (A) nor any provisions of 
        any agreement entered into pursuant to subparagraph 
        (A), including any rate structure, fees, terms, 
        conditions, or notice and recordkeeping requirements 
        set forth therein, shall be admissible as evidence or 
        otherwise taken into account in any administrative, 
        judicial, or other government proceeding involving the 
        setting or adjustment of the royalties payable for the 
        public performance or reproduction in ephemeral 
        phonorecords or copies of sound recordings, the 
        determination of terms or conditions related thereto, 
        or the establishment of notice or recordkeeping 
        requirements by the Copyright Royalty Judges under 
        paragraph (3) or section 112(e)(4). It is the intent of 
        Congress that any royalty rates, rate structure, 
        definitions, terms, conditions, or notice and 
        recordkeeping requirements, included in such agreements 
        shall be considered as a compromise motivated by the 
        unique business, economic and political circumstances 
        of webcasters, copyright owners, and performers rather 
        than as matters that would have been negotiated in the 
        marketplace between a willing buyer and a willing 
        seller, or otherwise meet the objectives set forth in 
        section 801(b). This subparagraph shall not apply to 
        the extent that the receiving agent and a webcaster 
        that is party to an agreement entered into pursuant to 
        subparagraph (A) expressly authorize the submission of 
        the agreement in a proceeding under this subsection.
          (D) Nothing in the Webcaster Settlement Act of 2008, 
        the Webcaster Settlement Act of 2009, or any agreement 
        entered into pursuant to subparagraph (A) shall be 
        taken into account by the United States Court of 
        Appeals for the District of Columbia Circuit in its 
        review of the determination by the Copyright Royalty 
        Judges of May 1, 2007, of rates and terms for the 
        digital performance of sound recordings and ephemeral 
        recordings, pursuant to sections 112 and 114.
          (E) As used in this paragraph--
                  (i) the term ``noncommercial webcaster'' 
                means a webcaster that--
                          (I) is exempt from taxation under 
                        section 501 of the Internal Revenue 
                        Code of 1986 (26 U.S.C. 501);
                          (II) has applied in good faith to the 
                        Internal Revenue Service for exemption 
                        from taxation under section 501 of the 
                        Internal Revenue Code and has a 
                        commercially reasonable expectation 
                        that such exemption shall be granted; 
                        or
                          (III) is operated by a State or 
                        possession or any governmental entity 
                        or subordinate thereof, or by the 
                        United States or District of Columbia, 
                        for exclusively public purposes;
                  (ii) the term ``receiving agent'' shall have 
                the meaning given that term in section 261.2 of 
                title 37, Code of Federal Regulations, as 
                published in the Federal Register on July 8, 
                2002; and
                  (iii) the term ``webcaster'' means a person 
                or entity that has obtained a compulsory 
                license under section 112 or 114 and the 
                implementing regulations therefor.
          (F) The authority to make settlements pursuant to 
        subparagraph (A) shall expire at 11:59 p.m. Eastern 
        time on the 30th day after the date of the enactment of 
        the Webcaster Settlement Act of 2009.
  (g) Proceeds From Licensing of Transmissions.--
          (1) Except in the case of a transmission licensed 
        under a statutory license in accordance with subsection 
        (f) of this section or in the case of a transmission to 
        which paragraph (5) applies--
                  (A) a featured recording artist who performs 
                on a sound recording that has been licensed for 
                a transmission shall be entitled to receive 
                payments from the copyright owner of the sound 
                recording in accordance with the terms of the 
                artist's contract; and
                  (B) a nonfeatured recording artist who 
                performs on a sound recording that has been 
                licensed for a transmission shall be entitled 
                to receive payments from the copyright owner of 
                the sound recording in accordance with the 
                terms of the nonfeatured recording artist's 
                applicable contract or other applicable 
                agreement.
          (2) Except as provided for in paragraph (6), a 
        nonprofit collective designated by the Copyright 
        Royalty Judges to distribute receipts from the 
        licensing of transmissions in accordance with 
        subsection (f) shall distribute such receipts as 
        follows:
                  (A) 50 percent of the receipts shall be paid 
                to the copyright owner of the exclusive right 
                under section 106(6) of this title to publicly 
                perform a sound recording by means of [a 
                digital] an audio transmission.
                  (B) 21/2 percent of the receipts shall be 
                deposited in an escrow account managed by an 
                independent administrator jointly appointed by 
                copyright owners of sound recordings and the 
                American Federation of Musicians (or any 
                successor entity) to be distributed to 
                nonfeatured musicians (whether or not members 
                of the American Federation of Musicians) who 
                have performed on sound recordings.
                  (C) 21/2 percent of the receipts shall be 
                deposited in an escrow account managed by an 
                independent administrator jointly appointed by 
                copyright owners of sound recordings and the 
                American Federation of Television and Radio 
                Artists (or any successor entity) to be 
                distributed to nonfeatured vocalists (whether 
                or not members of the American Federation of 
                Television and Radio Artists) who have 
                performed on sound recordings.
                  (D) 45 percent of the receipts shall be paid, 
                on a per sound recording basis, to the 
                recording artist or artists featured on such 
                sound recording (or the persons conveying 
                rights in the artists' performance in the sound 
                recordings).
          (3) A nonprofit collective designated by the 
        Copyright Royalty Judges to distribute receipts from 
        the licensing of transmissions in accordance with 
        subsection (f) may deduct from any of its receipts, 
        prior to the distribution of such receipts to any 
        person or entity entitled thereto other than copyright 
        owners and performers who have elected to receive 
        royalties from another designated nonprofit collective 
        and have notified such nonprofit collective in writing 
        of such election, the reasonable costs of such 
        collective incurred after November 1, 1995, in--
                  (A) the administration of the collection, 
                distribution, and calculation of the royalties;
                  (B) the settlement of disputes relating to 
                the collection and calculation of the 
                royalties; and
                  (C) the licensing and enforcement of rights 
                with respect to the making of ephemeral 
                recordings and performances subject to 
                licensing under section 112 and this section, 
                including those incurred in participating in 
                negotiations or arbitration proceedings under 
                section 112 and this section, except that all 
                costs incurred relating to the section 112 
                ephemeral recordings right may only be deducted 
                from the royalties received pursuant to section 
                112.
          (4) Notwithstanding paragraph (3), any nonprofit 
        collective designated to distribute receipts from the 
        licensing of transmissions in accordance with 
        subsection (f) may deduct from any of its receipts, 
        prior to the distribution of such receipts, the 
        reasonable costs identified in paragraph (3) of such 
        collective incurred after November 1, 1995, with 
        respect to such copyright owners and performers who 
        have entered with such collective a contractual 
        relationship that specifies that such costs may be 
        deducted from such royalty receipts.
          (5) Notwithstanding paragraph (1), to the extent that 
        a license granted by the copyright owner of a sound 
        recording to a transmitting entity eligible for a 
        statutory license under subsection (d)(2) extends to 
        such entity's transmissions otherwise licensable under 
        a statutory license in accordance with subsection (f), 
        such entity shall pay to the collective designated to 
        distribute statutory licensing receipts from the 
        licensing of transmissions in accordance with 
        subsection (f), 50 percent of the total royalties that 
        such entity is required, pursuant to the applicable 
        license agreement, to pay for such transmissions 
        otherwise licensable under a statutory license in 
        accordance with subsection (f). That collective shall 
        distribute such payments in proportion to the 
        distributions provided in subparagraphs (B) through (D) 
        of paragraph (2), and such payments shall be the only 
        payments to which featured and nonfeatured artists are 
        entitled by virtue of such transmissions under the 
        direct license with such entity.
          [(5)] (6) Letter of direction.--
                  (A) In general.--A nonprofit collective 
                designated by the Copyright Royalty Judges to 
                distribute receipts from the licensing of 
                transmissions in accordance with subsection (f) 
                shall adopt and reasonably implement a policy 
                that provides, in circumstances determined by 
                the collective to be appropriate, for 
                acceptance of instructions from a payee 
                identified under subparagraph (A) or (D) of 
                paragraph (2) to distribute, to a producer, 
                mixer, or sound engineer who was part of the 
                creative process that created a sound 
                recording, a portion of the payments to which 
                the payee would otherwise be entitled from the 
                licensing of transmissions of the sound 
                recording. In this section, such instructions 
                shall be referred to as a ``letter of 
                direction''.
                  (B) Acceptance of letter.--To the extent that 
                a collective described in subparagraph (A) 
                accepts a letter of direction under that 
                subparagraph, the person entitled to payment 
                pursuant to the letter of direction shall, 
                during the period in which the letter of 
                direction is in effect and carried out by the 
                collective, be treated for all purposes as the 
                owner of the right to receive such payment, and 
                the payee providing the letter of direction to 
                the collective shall be treated as having no 
                interest in such payment.
                  (C) Authority of collective.--This paragraph 
                shall not be construed in such a manner so that 
                the collective is not authorized to accept or 
                act upon payment instructions in circumstances 
                other than those to which this paragraph 
                applies.
          [(6)] (7) Sound recordings fixed before november 1, 
        1995.--
                  (A) Payment absent letter of direction.--A 
                nonprofit collective designated by the 
                Copyright Royalty Judges to distribute receipts 
                from the licensing of transmissions in 
                accordance with subsection (f) (in this 
                paragraph referred to as the ``collective'') 
                shall adopt and reasonably implement a policy 
                that provides, in circumstances determined by 
                the collective to be appropriate, for the 
                deduction of 2 percent of all the receipts that 
                are collected from the licensing of 
                transmissions of a sound recording fixed before 
                November 1, 1995, but which is withdrawn from 
                the amount otherwise payable under paragraph 
                (2)(D) to the recording artist or artists 
                featured on the sound recording (or the persons 
                conveying rights in the artists' performance in 
                the sound recording), and the distribution of 
                such amount to 1 or more persons described in 
                subparagraph (B) of this paragraph, after 
                deduction of costs described in paragraph (3) 
                or (4), as applicable, if each of the following 
                requirements is met:
                          (i) Certification of attempt to 
                        obtain a letter of direction.--The 
                        person described in subparagraph (B) 
                        who is to receive the distribution has 
                        certified to the collective, under 
                        penalty of perjury, that--
                                  (I) for a period of not less 
                                than 120 days, that person made 
                                reasonable efforts to contact 
                                the artist payee for such sound 
                                recording to request and obtain 
                                a letter of direction 
                                instructing the collective to 
                                pay to that person a portion of 
                                the royalties payable to the 
                                featured recording artist or 
                                artists; and
                                  (II) during the period 
                                beginning on the date on which 
                                that person began the 
                                reasonable efforts described in 
                                subclause (I) and ending on the 
                                date of that person's 
                                certification to the 
                                collective, the artist payee 
                                did not affirm or deny in 
                                writing the request for a 
                                letter of direction.
                          (ii) Collective attempt to contact 
                        artist.--After receipt of the 
                        certification described in clause (i) 
                        and for a period of not less than 120 
                        days before the first distribution by 
                        the collective to the person described 
                        in subparagraph (B), the collective 
                        attempts, in a reasonable manner as 
                        determined by the collective, to notify 
                        the artist payee of the certification 
                        made by the person described in 
                        subparagraph (B).
                          (iii) No objection received.--The 
                        artist payee does not, as of the date 
                        that was 10 business days before the 
                        date on which the first distribution is 
                        made, submit to the collective in 
                        writing an objection to the 
                        distribution.
                  (B) Eligibility for payment.--A person shall 
                be eligible for payment under subparagraph (A) 
                if the person--
                          (i) is a producer, mixer, or sound 
                        engineer of the sound recording;
                          (ii) has entered into a written 
                        contract with a record company involved 
                        in the creation or lawful exploitation 
                        of the sound recording, or with the 
                        recording artist or artists featured on 
                        the sound recording (or the persons 
                        conveying rights in the artists' 
                        performance in the sound recording), 
                        under which the person seeking payment 
                        is entitled to participate in royalty 
                        payments that are based on the 
                        exploitation of the sound recording and 
                        are payable from royalties otherwise 
                        payable to the recording artist or 
                        artists featured on the sound recording 
                        (or the persons conveying rights in the 
                        artists' performance in the sound 
                        recording);
                          (iii) made a creative contribution to 
                        the creation of the sound recording; 
                        and
                          (iv) submits to the collective--
                                  (I) a written certification 
                                stating, under penalty of 
                                perjury, that the person meets 
                                the requirements in clauses (i) 
                                through (iii); and
                                  (II) a true copy of the 
                                contract described in clause 
                                (ii).
                  (C) Multiple certifications.--Subject to 
                subparagraph (D), in a case in which more than 
                1 person described in subparagraph (B) has met 
                the requirements for a distribution under 
                subparagraph (A) with respect to a sound 
                recording as of the date that is 10 business 
                days before the date on which the distribution 
                is made, the collective shall divide the 2 
                percent distribution equally among all such 
                persons.
                  (D) Objection to payment.--Not later than 10 
                business days after the date on which the 
                collective receives from the artist payee a 
                written objection to a distribution made 
                pursuant to subparagraph (A), the collective 
                shall cease making any further payment relating 
                to such distribution. In any case in which the 
                collective has made 1 or more distributions 
                pursuant to subparagraph (A) to a person 
                described in subparagraph (B) before the date 
                that is 10 business days after the date on 
                which the collective receives from the artist 
                payee an objection to such distribution, the 
                objection shall not affect that person's 
                entitlement to any distribution made before the 
                collective ceases such distribution under this 
                subparagraph.
                  (E) Ownership of the right to receive 
                payments.--To the extent that the collective 
                determines that a distribution will be made 
                under subparagraph (A) to a person described in 
                subparagraph (B), such person shall, during the 
                period covered by such distribution, be treated 
                for all purposes as the owner of the right to 
                receive such payments, and the artist payee to 
                whom such payments would otherwise be payable 
                shall be treated as having no interest in such 
                payments.
                  (F) Artist payee defined.--In this paragraph, 
                the term ``artist payee'' means a person, other 
                than a person described in subparagraph (B), 
                who owns the right to receive all or part of 
                the receipts payable under paragraph (2)(D) 
                with respect to a sound recording. In a case in 
                which there are multiple artist payees with 
                respect to a sound recording, an objection by 1 
                such payee shall apply only to that payee's 
                share of the receipts payable under paragraph 
                (2)(D), and shall not preclude payment under 
                subparagraph (A) from the share of an artist 
                payee that does not so object.
          [(7)] (8) Preemption of state property laws.--The 
        holding and distribution of receipts under section 112 
        and this section by a nonprofit collective designated 
        by the Copyright Royalty Judges in accordance with this 
        subsection and regulations adopted by the Copyright 
        Royalty Judges, or by an independent administrator 
        pursuant to subparagraphs (B) and (C) of section 
        114(g)(2), shall supersede and preempt any State law 
        (including common law) concerning escheatment or 
        abandoned property, or any analogous provision, that 
        might otherwise apply.
  (h) Licensing to Affiliates.--
          (1) If the copyright owner of a sound recording 
        licenses an affiliated entity the right to publicly 
        perform a sound recording by means of a digital audio 
        transmission under section 106(6), the copyright owner 
        shall make the licensed sound recording available under 
        section 106(6) on no less favorable terms and 
        conditions to all bona fide entities that offer similar 
        services, except that, if there are material 
        differences in the scope of the requested license with 
        respect to the type of service, the particular sound 
        recordings licensed, the frequency of use, the number 
        of subscribers served, or the duration, then the 
        copyright owner may establish different terms and 
        conditions for such other services.
          (2) The limitation set forth in paragraph (1) of this 
        subsection shall not apply in the case where the 
        copyright owner of a sound recording licenses--
                  (A) an interactive service; or
                  (B) an entity to perform publicly up to 45 
                seconds of the sound recording and the sole 
                purpose of the performance is to promote the 
                distribution or performance of that sound 
                recording.
  (j) Definitions.--As used in this section, the following 
terms have the following meanings:
          (1) An ``affiliated entity'' is an entity engaging in 
        digital audio transmissions covered by section 106(6), 
        other than an interactive service, in which the 
        licensor has any direct or indirect partnership or any 
        ownership interest amounting to 5 percent or more of 
        the outstanding voting or non-voting stock.
          (2) An ``archived program'' is a predetermined 
        program that is available repeatedly on the demand of 
        the transmission recipient and that is performed in the 
        same order from the beginning, except that an archived 
        program shall not include a recorded event or broadcast 
        transmission that makes no more than an incidental use 
        of sound recordings, as long as such recorded event or 
        broadcast transmission does not contain an entire sound 
        recording or feature a particular sound recording.
          (3) A ``broadcast'' transmission is a transmission 
        made by a terrestrial broadcast station licensed as 
        such by the Federal Communications Commission.
          (4) A ``continuous program'' is a predetermined 
        program that is continuously performed in the same 
        order and that is accessed at a point in the program 
        that is beyond the control of the transmission 
        recipient.
          (5) A ``digital audio transmission'' is a digital 
        transmission as defined in section 101, that embodies 
        the transmission of a sound recording. This term does 
        not include the transmission of any audiovisual work.
          (6) An ``eligible nonsubscription transmission'' is a 
        noninteractive nonsubscription [digital] audio 
        transmission not exempt under subsection (d)(1) that is 
        made as part of a service that provides audio 
        programming consisting, in whole or in part, of 
        performances of sound recordings, including 
        [retransmissions of broadcast transmissions] broadcast 
        transmissions and retransmissions of broadcast 
        transmissions, if the primary purpose of the service is 
        to provide to the public such audio or other 
        entertainment programming, and the primary purpose of 
        the service is not to sell, advertise, or promote 
        particular products or services other than sound 
        recordings, live concerts, or other music-related 
        events.
          (7) An ``interactive service'' is one that enables a 
        member of the public to receive a transmission of a 
        program specially created for the recipient, or on 
        request, a transmission of a particular sound 
        recording, whether or not as part of a program, which 
        is selected by or on behalf of the recipient. The 
        ability of individuals to request that particular sound 
        recordings be performed for reception by the public at 
        large, or in the case of a subscription service, by all 
        subscribers of the service, does not make a service 
        interactive, if the programming on each channel of the 
        service does not substantially consist of sound 
        recordings that are performed within 1 hour of the 
        request or at a time designated by either the 
        transmitting entity or the individual making such 
        request. If an entity offers both interactive and 
        noninteractive services (either concurrently or at 
        different times), the noninteractive component shall 
        not be treated as part of an interactive service.
          (8) A ``new subscription service'' is a service that 
        performs sound recordings by means of noninteractive 
        [subscription digital] subscription audio transmissions 
        and that is not a preexisting subscription service or a 
        preexisting satellite digital audio radio service.
          (9) A ``nonsubscription'' transmission is any 
        transmission that is not a subscription transmission.
          (10) A ``preexisting satellite digital audio radio 
        service'' is a subscription satellite digital audio 
        radio service provided pursuant to a satellite digital 
        audio radio service license issued by the Federal 
        Communications Commission on or before July 31, 1998, 
        and any renewal of such license to the extent of the 
        scope of the original license, and may include a 
        limited number of sample channels representative of the 
        subscription service that are made available on a 
        nonsubscription basis in order to promote the 
        subscription service.
          (11) A ``preexisting subscription service'' is a 
        service that performs sound recordings by means of 
        noninteractive audio-only subscription digital audio 
        transmissions, which was in existence and was making 
        such transmissions to the public for a fee on or before 
        July 31, 1998, and may include a limited number of 
        sample channels representative of the subscription 
        service that are made available on a nonsubscription 
        basis in order to promote the subscription service.
          (12) A ``retransmission'' is a further transmission 
        of an initial transmission, and includes any further 
        retransmission of the same transmission. Except as 
        provided in this section, a transmission qualifies as a 
        ``retransmission'' only if it is simultaneous with the 
        initial transmission. Nothing in this definition shall 
        be construed to exempt a transmission that fails to 
        satisfy a separate element required to qualify for an 
        exemption under section 114(d)(1).
          (13) The ``sound recording performance complement'' 
        is the transmission during any 3-hour period, on a 
        particular channel used by a transmitting entity, of no 
        more than--
                  (A) 3 different selections of sound 
                recordings from any one phonorecord lawfully 
                distributed for public performance or sale in 
                the United States, if no more than 2 such 
                selections are transmitted consecutively; or
                  (B) 4 different selections of sound 
                recordings--
                          (i) by the same featured recording 
                        artist; or
                          (ii) from any set or compilation of 
                        phonorecords lawfully distributed 
                        together as a unit for public 
                        performance or sale in the United 
                        States,
                if no more than three such selections are 
                transmitted consecutively:
         Provided, That the transmission of selections in 
        excess of the numerical limits provided for in clauses 
        (A) and (B) from multiple phonorecords shall 
        nonetheless qualify as a sound recording performance 
        complement if the programming of the multiple 
        phonorecords was not willfully intended to avoid the 
        numerical limitations prescribed in such clauses.
          (14) A ``subscription'' transmission is a 
        transmission that is controlled and limited to 
        particular recipients, and for which consideration is 
        required to be paid or otherwise given by or on behalf 
        of the recipient to receive the transmission or a 
        package of transmissions including the transmission.
          (15) A ``transmission'' is either an initial 
        transmission or a retransmission.

           *       *       *       *       *       *       *


Sec. 118. Scope of exclusive rights: Use of certain works in connection 
                    with noncommercial broadcasting

  (a) The exclusive rights provided by section 106 shall, with 
respect to the works specified by subsection (b) and the 
activities specified by subsection (d), be subject to the 
conditions and limitations prescribed by this section.
  (b) Notwithstanding any provision of the antitrust laws, any 
owners of copyright in published nondramatic musical works and 
published pictorial, graphic, and sculptural works and any 
public broadcasting entities, respectively, may negotiate and 
agree upon the terms and rates of royalty payments and the 
proportionate division of fees paid among various copyright 
owners, and may designate common agents to negotiate, agree to, 
pay, or receive payments.
          (1) Any owner of copyright in a work specified in 
        this subsection or any public broadcasting entity may 
        submit to the Copyright Royalty Judges proposed 
        licenses covering such activities with respect to such 
        works.
          (2) License agreements voluntarily negotiated at any 
        time between one or more copyright owners and one or 
        more public broadcasting entities shall be given effect 
        in lieu of any determination by the Librarian of 
        Congress or the Copyright Royalty Judges, if copies of 
        such agreements are filed with the Copyright Royalty 
        Judges within 30 days of execution in accordance with 
        regulations that the Copyright Royalty Judges shall 
        issue.
          (3) Voluntary negotiation proceedings initiated 
        pursuant to a petition filed under section 804(a) for 
        the purpose of determining a schedule of terms and 
        rates of royalty payments by public broadcasting 
        entities to owners of copyright in works specified by 
        this subsection and the proportionate division of fees 
        paid among various copyright owners shall cover the 5-
        year period beginning on January 1 of the second year 
        following the year in which the petition is filed. The 
        parties to each negotiation proceeding shall bear their 
        own costs.
          (4) In the absence of license agreements negotiated 
        under paragraph (2) or (3), the Copyright Royalty 
        Judges shall, pursuant to chapter 8, conduct a 
        proceeding to determine and publish in the Federal 
        Register a schedule of rates and terms which, subject 
        to paragraph (2), shall be binding on all owners of 
        copyright in works specified by this subsection and 
        public broadcasting entities, regardless of whether 
        such copyright owners have submitted proposals to the 
        Copyright Royalty Judges. In establishing such rates 
        and terms the Copyright Royalty Judges may consider the 
        rates for comparable circumstances under voluntary 
        license agreements negotiated as provided in paragraph 
        (2) or (3). The Copyright Royalty Judges shall also 
        establish requirements by which copyright owners may 
        receive reasonable notice of the use of their works 
        under this section, and under which records of such use 
        shall be kept by public broadcasting entities.
  (c) Subject to the terms of any voluntary license agreements 
that have been negotiated as provided by subsection (b)(2) or 
(3), a public broadcasting entity may, upon compliance with the 
provisions of this section, including the rates and terms 
established by the Copyright Royalty Judges under subsection 
(b)(4), engage in the following activities with respect to 
published nondramatic musical works and published pictorial, 
graphic, and sculptural works:
          (1) performance or display of a work by or in the 
        course of a transmission made by a noncommercial 
        educational broadcast station referred to in subsection 
        (f); and
          (2) production of a transmission program, 
        reproduction of copies or phonorecords of such a 
        transmission program, and distribution of such copies 
        or phonorecords, where such production, reproduction, 
        or distribution is made by a nonprofit institution or 
        organization solely for the purpose of transmissions 
        specified in paragraph (1); and
          (3) the making of reproductions by a governmental 
        body or a nonprofit institution of a transmission 
        program simultaneously with its transmission as 
        specified in paragraph (1), and the performance or 
        display of the contents of such program under the 
        conditions specified by paragraph (1) of section 110, 
        but only if the reproductions are used for performances 
        or displays for a period of no more than seven days 
        from the date of the transmission specified in 
        paragraph (1), and are destroyed before or at the end 
        of such period. No person supplying, in accordance with 
        paragraph (2), a reproduction of a transmission program 
        to governmental bodies or nonprofit institutions under 
        this paragraph shall have any liability as a result of 
        failure of such body or institution to destroy such 
        reproduction: Provided, That it shall have notified 
        such body or institution of the requirement for such 
        destruction pursuant to this paragraph: And provided 
        further, That if such body or institution itself fails 
        to destroy such reproduction it shall be deemed to have 
        infringed.
  (d) Except as expressly provided in this subsection, this 
section shall have no applicability to works other than those 
specified in subsection (b). Owners of copyright in nondramatic 
literary works and public broadcasting entities may, during the 
course of voluntary negotiations, agree among themselves, 
respectively, as to the terms and rates of royalty payments 
without liability under the antitrust laws. Any such terms and 
rates of royalty payments shall be effective upon filing with 
the Copyright Royalty Judges, in accordance with regulations 
that the Copyright Royalty Judges shall prescribe as provided 
in section 803(b)(6).
  (e) Nothing in this section shall be construed to permit, 
beyond the limits of fair use as provided by section 107, the 
unauthorized dramatization of a nondramatic musical work, the 
production of a transmission program drawn to any substantial 
extent from a published compilation of pictorial, graphic, or 
sculptural works, or the unauthorized use of any portion of an 
audiovisual work.
  (f) As used in this section, the term ``public broadcasting 
entity'' means a noncommercial educational broadcast station as 
defined in [section 397 of title 47] section 397 of the 
Communications Act of 1934 (47 U.S.C. 397) and any nonprofit 
institution or organization engaged in the activities described 
in paragraph (2) of subsection (c).

           *       *       *       *       *       *       *


CHAPTER 8--PROCEEDINGS BY COPYRIGHT ROYALTY JUDGES

           *       *       *       *       *       *       *


Sec. 804. Institution of proceedings

  (a) Filing of Petition.--With respect to proceedings referred 
to in paragraphs (1) and (2) of section 801(b) concerning the 
determination or adjustment of royalty rates as provided in 
sections 111, 112, 114, 115, 116, 118, 119, and 1004, during 
the calendar years specified in the schedule set forth in 
subsection (b), any owner or user of a copyrighted work whose 
royalty rates are specified by this title, or are established 
under this chapter before or after the enactment of the 
Copyright Royalty and Distribution Reform Act of 2004, may file 
a petition with the Copyright Royalty Judges declaring that the 
petitioner requests a determination or adjustment of the rate. 
The Copyright Royalty Judges shall make a determination as to 
whether the petitioner has such a significant interest in the 
royalty rate in which a determination or adjustment is 
requested. If the Copyright Royalty Judges determine that the 
petitioner has such a significant interest, the Copyright 
Royalty Judges shall cause notice of this determination, with 
the reasons for such determination, to be published in the 
Federal Register, together with the notice of commencement of 
proceedings under this chapter. With respect to proceedings 
under paragraph (1) of section 801(b) concerning the 
determination or adjustment of royalty rates as provided in 
sections 112 and 114, during the calendar years specified in 
the schedule set forth in subsection (b), the Copyright Royalty 
Judges shall cause notice of commencement of proceedings under 
this chapter to be published in the Federal Register as 
provided in section 803(b)(1)(A).
  (b) Timing of Proceedings.--
          (1) Section 111 proceedings.--(A) A petition 
        described in subsection (a) to initiate proceedings 
        under section 801(b)(2) concerning the adjustment of 
        royalty rates under section 111 to which subparagraph 
        (A) or (D) of section 801(b)(2) applies may be filed 
        during the year 2015 and in each subsequent fifth 
        calendar year.
          (B) In order to initiate proceedings under section 
        801(b)(2) concerning the adjustment of royalty rates 
        under section 111 to which subparagraph (B) or (C) of 
        section 801(b)(2) applies, within 12 months after an 
        event described in either of those subsections, any 
        owner or user of a copyrighted work whose royalty rates 
        are specified by section 111, or by a rate established 
        under this chapter before or after the enactment of the 
        Copyright Royalty and Distribution Reform Act of 2004, 
        may file a petition with the Copyright Royalty Judges 
        declaring that the petitioner requests an adjustment of 
        the rate. The Copyright Royalty Judges shall then 
        proceed as set forth in subsection (a) of this section. 
        Any change in royalty rates made under this chapter 
        pursuant to this subparagraph may be reconsidered in 
        the year 2015, and each fifth calendar year thereafter, 
        in accordance with the provisions in section 
        801(b)(2)(B) or (C), as the case may be. A petition for 
        adjustment of rates established by section 111(d)(1)(B) 
        as a result of a change in the rules and regulations of 
        the Federal Communications Commission shall set forth 
        the change on which the petition is based.
          (C) Any adjustment of royalty rates under section 111 
        shall take effect as of the first accounting period 
        commencing after the publication of the determination 
        of the Copyright Royalty Judges in the Federal 
        Register, or on such other date as is specified in that 
        determination.
          (2) Certain section 112 proceedings.--Proceedings 
        under this chapter shall be commenced in the year 2007 
        to determine reasonable terms and rates of royalty 
        payments for the activities described in section 
        112(e)(1) relating to the limitation on exclusive 
        rights specified by section 114(d)(1)(C)(iv), to become 
        effective on January 1, 2009. Such proceedings shall be 
        repeated in each subsequent fifth calendar year.
          (3) Section 114 and corresponding 112 proceedings.--
                  (A) For eligible nonsubscription services and 
                new subscription services.--Proceedings under 
                this chapter shall be commenced as soon as 
                practicable after the date of enactment of the 
                Copyright Royalty and Distribution Reform Act 
                of 2004 to determine reasonable terms and rates 
                of royalty payments under sections 114 and 112 
                for the activities of eligible nonsubscription 
                transmission services and new subscription 
                services, to be effective for the period 
                beginning on January 1, 2006, and ending on 
                December 31, 2010. Such proceedings shall next 
                be commenced in January 2009 to determine 
                reasonable terms and rates of royalty payments, 
                to become effective on January 1, 2011. 
                Thereafter, such proceedings shall be repeated 
                in each subsequent fifth calendar year.
                  (B) For preexisting subscription and 
                satellite digital audio radio services.--
                Proceedings under this chapter shall be 
                commenced in January 2006 to determine 
                reasonable terms and rates of royalty payments 
                under sections 114 and 112 for the activities 
                of preexisting subscription services, to be 
                effective during the period beginning on 
                January 1, 2008, and ending on December 31, 
                2012, and preexisting satellite digital audio 
                radio services, to be effective during the 
                period beginning on January 1, 2007, and ending 
                on December 31, 2012. Such proceedings shall 
                next be commenced in 2011 to determine 
                reasonable terms and rates of royalty payments, 
                to become effective on January 1, 2013. 
                Thereafter, such proceedings shall be repeated 
                in each subsequent fifth calendar year, except 
                that--(i) with respect to preexisting 
                subscription services, the terms and rates 
                finally determined for the rate period ending 
                on December 31, 2022, shall remain in effect 
                through December 31, 2027, and there shall be 
                no proceeding to determine terms and rates for 
                preexisting subscription services for the 
                period beginning on January 1, 2023, and ending 
                on December 31, 2027; and'' `` (ii) with 
                respect to pre-existing satellite digital audio 
                radio services, the terms and rates set forth 
                by the Copyright Royalty Judges on December 14, 
                2017, in their initial determination for the 
                rate period ending on December 31, 2022, shall 
                be in effect through December 31, 2027, without 
                any change based on a rehearing under section 
                803(c)(2) and without the possibility of appeal 
                under section 803(d), and there shall be no 
                proceeding to determine terms and rates for 
                preexisting satellite digital audio radio 
                services for the period beginning on January 1, 
                2023, and ending on December 31, 2027.
                  (C)(i) Notwithstanding any other provision of 
                this chapter, this subparagraph shall govern 
                proceedings commenced pursuant to section 
                114(f)(1)(C) concerning new types of services.
                  (ii) Not later than 30 days after a petition 
                to determine rates and terms for a new type of 
                service is filed by any copyright owner of 
                sound recordings, or such new type of service, 
                indicating that such new type of service is or 
                is about to become operational, the Copyright 
                Royalty Judges shall issue a notice for a 
                proceeding to determine rates and terms for 
                such service.
                  (iii) The proceeding shall follow the 
                schedule set forth in subsections (b), (c), and 
                (d) of section 803, except that--
                          (I) the determination shall be issued 
                        by not later than 24 months after the 
                        publication of the notice under clause 
                        (ii); and
                          (II) the decision shall take effect 
                        as provided in subsections (c)(2) and 
                        (d)(2) of section 803 and section 
                        114(f)(3)(B)(ii) and (C).
                  (iv) The rates and terms shall remain in 
                effect for the period set forth in section 
                114(f)(1)(C).
                  (D) A proceeding under this chapter shall be 
                commenced as soon as practicable after the date 
                of the enactment of this subparagraph to 
                determine royalty rates and terms for 
                nonsubscription broadcast transmissions, to be 
                effective for the period beginning on such date 
                of enactment, and ending on December 31, 2028. 
                Any payment due under section 114(f)(1)(D) 
                shall not be due until the due date of the 
                first royalty payments for nonsubscription 
                broadcast transmissions that are determined, 
                after the date of the enactment of this 
                subparagraph, by the Copyright Royalty Judges. 
                Thereafter, such proceeding shall be repeated 
                in each subsequent fifth calendar year.
          (4) Section 115 proceedings.--A petition described in 
        subsection (a) to initiate proceedings under section 
        801(b)(1) concerning the adjustment or determination of 
        royalty rates as provided in section 115 may be filed 
        in the year 2006 and in each subsequent fifth calendar 
        year, or at such other times as the parties have agreed 
        under section 115(c)(3)(B) and (C).
          (5) Section 116 proceedings.--(A) A petition 
        described in subsection (a) to initiate proceedings 
        under section 801(b) concerning the determination of 
        royalty rates and terms as provided in section 116 may 
        be filed at any time within 1 year after negotiated 
        licenses authorized by section 116 are terminated or 
        expire and are not replaced by subsequent agreements.
          (B) If a negotiated license authorized by section 116 
        is terminated or expires and is not replaced by another 
        such license agreement which provides permission to use 
        a quantity of musical works not substantially smaller 
        than the quantity of such works performed on coin-
        operated phonorecord players during the 1-year period 
        ending March 1, 1989, the Copyright Royalty Judges 
        shall, upon petition filed under paragraph (1) within 1 
        year after such termination or expiration, commence a 
        proceeding to promptly establish an interim royalty 
        rate or rates for the public performance by means of a 
        coin-operated phonorecord player of nondramatic musical 
        works embodied in phonorecords which had been subject 
        to the terminated or expired negotiated license 
        agreement. Such rate or rates shall be the same as the 
        last such rate or rates and shall remain in force until 
        the conclusion of proceedings by the Copyright Royalty 
        Judges, in accordance with section 803, to adjust the 
        royalty rates applicable to such works, or until 
        superseded by a new negotiated license agreement, as 
        provided in section 116(b).
          (6) Section 118 proceedings.--A petition described in 
        subsection (a) to initiate proceedings under section 
        801(b)(1) concerning the determination of reasonable 
        terms and rates of royalty payments as provided in 
        section 118 may be filed in the year 2006 and in each 
        subsequent fifth calendar year.
          (7) Section 1004 proceedings.--A petition described 
        in subsection (a) to initiate proceedings under section 
        801(b)(1) concerning the adjustment of reasonable 
        royalty rates under section 1004 may be filed as 
        provided in section 1004(a)(3).
          (8) Proceedings concerning distribution of royalty 
        fees.--With respect to proceedings under section 
        801(b)(3) concerning the distribution of royalty fees 
        in certain circumstances under section 111, 119, or 
        1007, the Copyright Royalty Judges shall, upon a 
        determination that a controversy exists concerning such 
        distribution, cause to be published in the Federal 
        Register notice of commencement of proceedings under 
        this chapter.

           *       *       *       *       *       *       *


       CHAPTER 14--UNAUTHORIZED USE OF PRE-1972 SOUND RECORDINGS

Sec. 1401. Unauthorized use of pre-1972 sound recordings

  (a) In General.--
          (1) Unauthorized acts.--Anyone who, on or before the 
        last day of the applicable transition period under 
        paragraph (2), and without the consent of the rights 
        owner, engages in covered activity with respect to a 
        sound recording fixed before February 15, 1972, shall 
        be subject to the remedies provided in sections 502 
        through 505 and 1203 to the same extent as an infringer 
        of copyright or a person that engages in unauthorized 
        activity under chapter 12.
          (2) Term of prohibition.--
                  (A) In general.--The prohibition under 
                paragraph (1)--
                          (i) subject to clause (ii), shall 
                        apply to a sound recording described in 
                        that paragraph--
                                  (I) through December 31 of 
                                the year that is 95 years after 
                                the year of first publication; 
                                and
                                  (II) for a further transition 
                                period as prescribed under 
                                subparagraph (B) of this 
                                paragraph; and
                          (ii) shall not apply to any sound 
                        recording after February 15, 2067.
                  (B) Transition periods.--
                          (i) Pre-1923 recordings.--In the case 
                        of a sound recording first published 
                        before January 1, 1923, the transition 
                        period described in subparagraph 
                        (A)(i)(II) shall end on December 31 of 
                        the year that is 3 years after the date 
                        of enactment of this section.
                          (ii) 1923-1946 recordings.--In the 
                        case of a sound recording first 
                        published during the period beginning 
                        on January 1, 1923, and ending on 
                        December 31, 1946, the transition 
                        period described in subparagraph 
                        (A)(i)(II) shall end on the date that 
                        is 5 years after the last day of the 
                        period described in subparagraph 
                        (A)(i)(I).
                          (iii) 1947-1956 recordings.--In the 
                        case of a sound recording first 
                        published during the period beginning 
                        on January 1, 1947, and ending on 
                        December 31, 1956, the transition 
                        period described in subparagraph 
                        (A)(i)(II) shall end on the date that 
                        is 15 years after the last day of the 
                        period described in subparagraph 
                        (A)(i)(I).
                          (iv) Post-1956 recordings.--In the 
                        case of a sound recording fixed before 
                        February 15, 1972, that is not 
                        described in clause (i), (ii), or 
                        (iii), the transition period described 
                        in subparagraph (A)(i)(II) shall end on 
                        February 15, 2067.
          (3) Rule of construction.--For the purposes of this 
        subsection, the term ``anyone'' includes any State, any 
        instrumentality of a State, and any officer or employee 
        of a State or instrumentality of a State acting in the 
        official capacity of the officer or employee, as 
        applicable.
  (b) Certain Authorized Transmissions and Reproductions.--A 
public performance by means of [a digital audio] an audio 
transmission of a sound recording fixed before February 15, 
1972, or a reproduction in an ephemeral phonorecord or copy of 
a sound recording fixed before February 15, 1972, shall, for 
purposes of subsection (a), be considered to be authorized and 
made with the consent of the rights owner if--
          (1) the transmission or reproduction would satisfy 
        the requirements for statutory licensing under section 
        112(e)(1) or section 114(d)(2), or would be exempt 
        under section 114(d)(1), as the case may be, if the 
        sound recording were fixed on or after February 15, 
        1972; and
          (2) the transmitting entity pays the statutory 
        royalty for the transmission or reproduction pursuant 
        to the rates and terms adopted under sections 112(e) 
        and 114(f), and complies with other obligations, in the 
        same manner as required by regulations adopted by the 
        Copyright Royalty Judges under sections 112(e) and 
        114(f) for sound recordings that are fixed on or after 
        February 15, 1972, except in the case of a transmission 
        that would be exempt under section 114(d)(1).
  (c) Certain Noncommercial Uses of Sound Recordings That Are 
Not Being Commercially Exploited.--
          (1) In general.--Noncommercial use of a sound 
        recording fixed before February 15, 1972, that is not 
        being commercially exploited by or under the authority 
        of the rights owner shall not violate subsection (a) 
        if--
                  (A) the person engaging in the noncommercial 
                use, in order to determine whether the sound 
                recording is being commercially exploited by or 
                under the authority of the rights owner, makes 
                a good faith, reasonable search for, but does 
                not find, the sound recording--
                          (i) in the records of schedules filed 
                        in the Copyright Office as described in 
                        subsection (f)(5)(A); and
                          (ii) on services offering a 
                        comprehensive set of sound recordings 
                        for sale or streaming;
                  (B) the person engaging in the noncommercial 
                use files a notice identifying the sound 
                recording and the nature of the use in the 
                Copyright Office in accordance with the 
                regulations issued under paragraph (3)(B); and
                  (C) during the 90-day period beginning on the 
                date on which the notice described in 
                subparagraph (B) is indexed into the public 
                records of the Copyright Office, the rights 
                owner of the sound recording does not, in its 
                discretion, opt out of the noncommercial use by 
                filing notice thereof in the Copyright Office 
                in accordance with the regulations issued under 
                paragraph (5).
          (2) Rules of construction.--For purposes of this 
        subsection--
                  (A) merely recovering costs of production and 
                distribution of a sound recording resulting 
                from a use otherwise permitted under this 
                subsection does not itself necessarily 
                constitute a commercial use of the sound 
                recording;
                  (B) the fact that a person engaging in the 
                use of a sound recording also engages in 
                commercial activities does not itself 
                necessarily render the use commercial; and
                  (C) the fact that a person files notice of a 
                noncommercial use of a sound recording in 
                accordance with the regulations issued under 
                paragraph (3)(B) does not itself affect any 
                limitation on the exclusive rights of a 
                copyright owner described in section 107, 108, 
                109, 110, or 112(f) as applied to a claim under 
                subsection (a) of this section pursuant to 
                subsection (f)(1)(A) of this section.
          (3) Notice of covered activity.--Not later than 180 
        days after the date of enactment of this section, the 
        Register of Copyrights shall issue regulations that--
                  (A) provide specific, reasonable steps that, 
                if taken by a filer, are sufficient to 
                constitute a good faith, reasonable search 
                under paragraph (1)(A) to determine whether a 
                recording is being commercially exploited, 
                including the services that satisfy the good 
                faith, reasonable search requirement under 
                paragraph (1)(A) for purposes of the safe 
                harbor described in paragraph (4)(A); and
                  (B) establish the form, content, and 
                procedures for the filing of notices under 
                paragraph (1)(B).
          (4) Safe harbor.--
                  (A) In general.--A person engaging in a 
                noncommercial use of a sound recording 
                otherwise permitted under this subsection who 
                establishes that the person made a good faith, 
                reasonable search under paragraph (1)(A) 
                without finding commercial exploitation of the 
                sound recording by or under the authority of 
                the rights owner shall not be found to be in 
                violation of subsection (a).
                  (B) Steps sufficient but not necessary.--
                Taking the specific, reasonable steps 
                identified by the Register of Copyrights in the 
                regulations issued under paragraph (3)(A) shall 
                be sufficient, but not necessary, for a filer 
                to satisfy the requirement to conduct a good 
                faith, reasonable search under paragraph (1)(A) 
                for purposes of subparagraph (A) of this 
                paragraph.
          (5) Opting out of covered activity.--
                  (A) In general.--Not later than 180 days 
                after the date of enactment of this section, 
                the Register of Copyrights shall issue 
                regulations establishing the form, content, and 
                procedures for the rights owner of a sound 
                recording that is the subject of a notice under 
                paragraph (1)(B) to, in its discretion, file 
                notice opting out of the covered activity 
                described in the notice under paragraph (1)(B) 
                during the 90-day period beginning on the date 
                on which the notice under paragraph (1)(B) is 
                indexed into the public records of the 
                Copyright Office.
                  (B) Rule of construction.--The fact that a 
                rights holder opts out of a noncommercial use 
                of a sound recording by filing notice thereof 
                in the Copyright Office in accordance with the 
                regulations issued under subparagraph (A) does 
                not itself enlarge or diminish any limitation 
                on the exclusive rights of a copyright owner 
                described in section 107, 108, 109, 110, or 
                112(f) as applied to a claim under subsection 
                (a) of this section pursuant to subsection 
                (f)(1)(A) of this section.
          (6) Civil penalties for certain acts.--
                  (A) Filing of notices of noncommercial use.--
                Any person who willfully engages in a pattern 
                or practice of filing a notice of noncommercial 
                use of a sound recording as described in 
                paragraph (1)(B) fraudulently describing the 
                use proposed, or knowing that the use proposed 
                is not permitted under this subsection, shall 
                be assessed a civil penalty in an amount that 
                is not less than $250, and not more than $1000, 
                for each such notice, in addition to any other 
                remedies that may be available under this title 
                based on the actual use made.
                  (B) Filing of opt-out notices.--
                          (i) In general.--Any person who files 
                        an opt-out notice as described in 
                        paragraph (1)(C), knowing that the 
                        person is not the rights owner or 
                        authorized to act on behalf of the 
                        rights owner of the sound recording to 
                        which the notice pertains, shall be 
                        assessed a civil penalty in an amount 
                        not less than $250, and not more than 
                        $1,000, for each such notice.
                          (ii) Pattern or practice.--Any person 
                        who engages in a pattern or practice of 
                        making filings as described in clause 
                        (i) shall be assessed a civil penalty 
                        in an amount not less than $10,000 for 
                        each such filing.
                  (C) Definition.--For purposes of this 
                paragraph, the term ``knowing''--
                          (i) does not require specific intent 
                        to defraud; and
                          (ii) with respect to information 
                        about ownership of the sound recording 
                        in question, means that the person--
                                  (I) has actual knowledge of 
                                the information;
                                  (II) acts in deliberate 
                                ignorance of the truth or 
                                falsity of the information; or
                                  (III) acts in grossly 
                                negligent disregard of the 
                                truth or falsity of the 
                                information.
  (d) Payment of Royalties for Transmissions of Performances by 
Direct Licensing of Statutory Services.--
          (1) In general.--A public performance by means of [a 
        digital audio] an audio transmission of a sound 
        recording fixed before February 15, 1972, shall, for 
        purposes of subsection (a), be considered to be 
        authorized and made with the consent of the rights 
        owner if the transmission is made pursuant to a license 
        agreement voluntarily negotiated at any time between 
        the rights owner and the entity performing the sound 
        recording.
          (2) Payment of royalties to nonprofit collective 
        under certain license agreements.--
                  (A) Licenses entered into on or after date of 
                enactment.--To the extent that a license 
                agreement described in paragraph (1) entered 
                into on or after the date of enactment of this 
                section extends to a public performance by 
                means of [a digital audio] an audio 
                transmission of a sound recording fixed before 
                February 15, 1972, that meets the conditions of 
                subsection (b)--
                          (i) the licensee shall, with respect 
                        to such transmission, pay to the 
                        collective designated to distribute 
                        receipts from the licensing of 
                        transmissions in accordance with 
                        section 114(f), 50 percent of the 
                        performance royalties for that 
                        transmission due under the license; and
                          (ii) the royalties paid under clause 
                        (i) shall be fully credited as payments 
                        due under the license.
                  (B) Certain agreements entered into before 
                enactment.--To the extent that a license 
                agreement described in paragraph (1), entered 
                into during the period beginning on January 1 
                of the year in which this section is enacted 
                and ending on the day before the date of 
                enactment of this section, or a settlement 
                agreement with a preexisting satellite digital 
                audio radio service (as defined in section 
                114(j)) entered into during the period 
                beginning on January 1, 2015, and ending on the 
                day before the date of enactment of this 
                section, extends to a public performance by 
                means of a digital audio transmission of a 
                sound recording fixed before February 15, 1972, 
                that meets the conditions of subsection (b)--
                          (i) the rights owner shall, with 
                        respect to such transmission, pay to 
                        the collective designated to distribute 
                        receipts from the licensing of 
                        transmissions in accordance with 
                        section 114(f) an amount that is equal 
                        to the difference between--
                                  (I) 50 percent of the 
                                difference between--
                                          (aa) the rights 
                                        owner's total gross 
                                        performance royalty fee 
                                        receipts or settlement 
                                        monies received for all 
                                        such transmissions 
                                        covered under the 
                                        license or settlement 
                                        agreement, as 
                                        applicable; and
                                          (bb) the rights 
                                        owner's total payments 
                                        for outside legal 
                                        expenses, including any 
                                        payments of third-party 
                                        claims, that are 
                                        directly attributable 
                                        to the license or 
                                        settlement agreement, 
                                        as applicable; and
                                  (II) the amount of any 
                                royalty receipts or settlement 
                                monies under the agreement that 
                                are distributed by the rights 
                                owner to featured and 
                                nonfeatured artists before the 
                                date of enactment of this 
                                section; and
                          (ii) the royalties paid under clause 
                        (i) shall be fully credited as payments 
                        due under the license or settlement 
                        agreement, as applicable.
          (3) Distribution of royalties and settlement monies 
        by collective.--The collective described in paragraph 
        (2) shall, in accordance with subparagraphs (B) through 
        (D) of section 114(g)(2), and paragraphs (5) and (6) of 
        section 114(g), distribute the royalties or settlement 
        monies received under paragraph (2) under a license or 
        settlement described in paragraph (2), which shall be 
        the only payments to which featured and nonfeatured 
        artists are entitled by virtue of the transmissions 
        described in paragraph (2), except for settlement 
        monies described in paragraph (2) that are distributed 
        by the rights owner to featured and nonfeatured artists 
        before the date of enactment of this section.
          (4) Payment of royalties under license agreements 
        entered before enactment or not otherwise described in 
        paragraph (2).--
                  (A) In general.--To the extent that a license 
                agreement described in paragraph (1) entered 
                into before the date of enactment of this 
                section, or any other license agreement not as 
                described in paragraph (2), extends to a public 
                performance by means of [a digital audio] an 
                audio transmission of a sound recording fixed 
                before February 15, 1972, that meets the 
                conditions of subsection (b), the payments made 
                by the licensee pursuant to the license shall 
                be made in accordance with the agreement.
                  (B) Additional payments not required.--To the 
                extent that a licensee has made, or will make 
                in the future, payments pursuant to a license 
                as described in subparagraph (A), the 
                provisions of paragraphs (2) and (3) shall not 
                require any additional payments from, or 
                additional financial obligations on the part 
                of, the licensee.
                  (C) Rule of construction.--Nothing in this 
                subsection may be construed to prohibit the 
                collective designated to distribute receipts 
                from the licensing of transmissions in 
                accordance with section 114(f) from 
                administering royalty payments under any 
                license not described in paragraph (2).
  (e) Preemption With Respect to Certain Past Acts.--
          (1) In general.--This section preempts any claim of 
        common law copyright or equivalent right under the laws 
        of any State arising from a digital audio transmission 
        or reproduction that is made before the date of 
        enactment of this section of a sound recording fixed 
        before February 15, 1972, if--
                  (A) the digital audio transmission would have 
                satisfied the requirements for statutory 
                licensing under section 114(d)(2) or been 
                exempt under section 114(d)(1), or the 
                reproduction would have satisfied the 
                requirements of section 112(e)(1), as the case 
                may be, if the sound recording were fixed on or 
                after February 15, 1972; and
                  (B) either--
                          (i) except in the case of a 
                        transmission that would have been 
                        exempt under section 114(d)(1), not 
                        later than 270 days after the date of 
                        enactment of this section, the 
                        transmitting entity pays statutory 
                        royalties and provides notice of the 
                        use of the relevant sound recordings in 
                        the same manner as required by 
                        regulations adopted by the Copyright 
                        Royalty Judges for sound recordings 
                        that are fixed on or after February 15, 
                        1972, for all the digital audio 
                        transmissions and reproductions 
                        satisfying the requirements for 
                        statutory licensing under sections 
                        112(e)(1) and 114(d)(2) during the 3 
                        years before that date of enactment; or
                          (ii) an agreement voluntarily 
                        negotiated between the rights owner and 
                        the entity performing the sound 
                        recording (including a litigation 
                        settlement agreement entered into 
                        before the date of enactment of this 
                        section) authorizes or waives liability 
                        for any such transmission or 
                        reproduction and the transmitting 
                        entity has paid for and reported such 
                        digital audio transmission under that 
                        agreement.
          (2) Rule of construction for common law copyright.--
        For purposes of paragraph (1), a claim of common law 
        copyright or equivalent right under the laws of any 
        State includes a claim that characterizes conduct 
        subject to that paragraph as an unlawful distribution, 
        act of record piracy, or similar violation.
          (3) Rule of construction for public performance 
        rights.--Nothing in this section may be construed to 
        recognize or negate the existence of public performance 
        rights in sound recordings under the laws of any State.
  (f) Limitations on Remedies.--
          (1) Fair use; uses by libraries, archives, and 
        educational institutions.--
                  (A) In general.--The limitations on the 
                exclusive rights of a copyright owner described 
                in sections 107, 108, 109, 110, and 112(f) 
                shall apply to a claim under subsection (a) 
                with respect to a sound recording fixed before 
                February 15, 1972.
                  (B) Rule of construction for section 
                108(h).--With respect to the application of 
                section 108(h) to a claim under subsection (a) 
                with respect to a sound recording fixed before 
                February 15, 1972, the phrase ``during the last 
                20 years of any term of copyright of a 
                published work'' in such section 108(h) shall 
                be construed to mean at any time after the date 
                of enactment of this section.
          (2) Actions.--The limitations on actions described in 
        section 507 shall apply to a claim under subsection (a) 
        with respect to a sound recording fixed before February 
        15, 1972.
          (3) Material online.--Section 512 shall apply to a 
        claim under subsection (a) with respect to a sound 
        recording fixed before February 15, 1972.
          (4) Principles of equity.--Principles of equity apply 
        to remedies for a violation of this section to the same 
        extent as such principles apply to remedies for 
        infringement of copyright.
          (5) Filing requirement for statutory damages and 
        attorneys' fees.--
                  (A) Filing of information on sound 
                recordings.--
                          (i) Filing requirement.--Except in 
                        the case of a transmitting entity that 
                        has filed contact information for that 
                        transmitting entity under subparagraph 
                        (B), in any action under this section, 
                        an award of statutory damages or of 
                        attorneys' fees under section 504 or 
                        505 may be made with respect to an 
                        unauthorized use of a sound recording 
                        under subsection (a) only if--
                                  (I) the rights owner has 
                                filed with the Copyright Office 
                                a schedule that specifies the 
                                title, artist, and rights owner 
                                of the sound recording and 
                                contains such other 
                                information, as practicable, as 
                                the Register of Copyrights 
                                prescribes by regulation; and
                                  (II) the use occurs after the 
                                end of the 90-day period 
                                beginning on the date on which 
                                the information described in 
                                subclause (I) is indexed into 
                                the public records of the 
                                Copyright Office.
                          (ii) Regulations.--Not later than 180 
                        days after the date of enactment of 
                        this section, the Register of 
                        Copyrights shall issue regulations 
                        that--
                                  (I) establish the form, 
                                content, and procedures for the 
                                filing of schedules under 
                                clause (i);
                                  (II) provide that a person 
                                may request that the person 
                                receive timely notification of 
                                a filing described in subclause 
                                (I); and
                                  (III) set forth the manner in 
                                which a person may make a 
                                request under subclause (II).
                  (B) Filing of contact information for 
                transmitting entities.--
                          (i) Filing requirement.--Not later 
                        than 30 days after the date of 
                        enactment of this section, the Register 
                        of Copyrights shall issue regulations 
                        establishing the form, content, and 
                        procedures for the filing of contact 
                        information by any entity that, as of 
                        the date of enactment of this section, 
                        performs a sound recording fixed before 
                        February 15, 1972, by means of a 
                        digital audio transmission.
                          (ii) Time limit on filings.--The 
                        Register of Copyrights may accept 
                        filings under clause (i) only until the 
                        180th day after the date of enactment 
                        of this section.
                          (iii) Limitation on statutory damages 
                        and attorneys' fees.--
                                  (I) Limitation.--An award of 
                                statutory damages or of 
                                attorneys' fees under section 
                                504 or 505 may not be made 
                                against an entity that has 
                                filed contact information for 
                                that entity under clause (i) 
                                with respect to an unauthorized 
                                use by that entity of a sound 
                                recording under subsection (a) 
                                if the use occurs before the 
                                end of the 90-day period 
                                beginning on the date on which 
                                the entity receives a notice 
                                that--
                                          (aa) is sent by or on 
                                        behalf of the rights 
                                        owner of the sound 
                                        recording;
                                          (bb) states that the 
                                        entity is not legally 
                                        authorized to use that 
                                        sound recording under 
                                        subsection (a); and
                                          (cc) identifies the 
                                        sound recording in a 
                                        schedule conforming to 
                                        the requirements 
                                        prescribed by the 
                                        regulations issued 
                                        under subparagraph 
                                        (A)(ii).
                                  (II) Undeliverable notices.--
                                In any case in which a notice 
                                under subclause (I) is sent to 
                                an entity by mail or courier 
                                service and the notice is 
                                returned to the sender because 
                                the entity either is no longer 
                                located at the address provided 
                                in the contact information 
                                filed under clause (i) or has 
                                refused to accept delivery, or 
                                the notice is sent by 
                                electronic mail and is 
                                undeliverable, the 90-day 
                                period under subclause (I) 
                                shall begin on the date of the 
                                attempted delivery.
                  (C) Section 412.--Section 412 shall not limit 
                an award of statutory damages under section 
                504(c) or attorneys' fees under section 505 
                with respect to a covered activity in violation 
                of subsection (a).
          (6) Applicability of other provisions.--
                  (A) In general.--Subject to subparagraph (B), 
                no provision of this title shall apply to or 
                limit the remedies available under this section 
                except as otherwise provided in this section.
                  (B) Applicability of definitions.--Any term 
                used in this section that is defined in section 
                101 shall have the meaning given that term in 
                section 101.
  (g) Application of Section 230 Safe Harbor.--For purposes of 
section 230 of the Communications Act of 1934 (47 U.S.C. 230), 
subsection (a) shall be considered to be a ``law pertaining to 
intellectual property'' under subsection (e)(2) of such section 
230.
  (h) Application to Rights Owners.--
          (1) Transfers.--With respect to a rights owner 
        described in subsection (l)(2)(B)--
                  (A) subsections (d) and (e) of section 201 
                and section 204 shall apply to a transfer 
                described in subsection (l)(2)(B) to the same 
                extent as with respect to a transfer of 
                copyright ownership; and
                  (B) notwithstanding section 411, that rights 
                owner may institute an action with respect to a 
                violation of this section to the same extent as 
                the owner of an exclusive right under a 
                copyright may institute an action under section 
                501(b).
          (2) Application of other provisions.--The following 
        provisions shall apply to a rights owner under this 
        section to the same extent as any copyright owner:
                  (A) Section 112(e)(2).
                  (B) Section 112(e)(7).
                  (C) Section 114(e).
                  (D) Section 114(h).
  (i) Ephemeral Recordings.--An authorized reproduction made 
under this section shall be subject to section 112(g) to the 
same extent as a reproduction of a sound recording fixed on or 
after February 15, 1972.
  (j) Rule of Construction.--A rights owner of, or featured 
recording artist who performs on, a sound recording under this 
chapter shall be deemed to be an interested copyright party, as 
defined in section 1001, to the same extent as a copyright 
owner or featured recording artist under chapter 10.
  (k) Treatment of States and State Instrumentalities, 
Officers, and Employees.--Any State, and any instrumentality, 
officer, or employee described in subsection (a)(3), shall be 
subject to the provisions of this section in the same manner 
and to the same extent as any nongovernmental entity.
  (l) Definitions.--In this section:
          (1) Covered activity.--The term ``covered activity'' 
        means any activity that the copyright owner of a sound 
        recording would have the exclusive right to do or 
        authorize under section 106 or 602, or that would 
        violate section 1201 or 1202, if the sound recording 
        were fixed on or after February 15, 1972.
          (2) Rights owner.--The term ``rights owner'' means--
                  (A) the person that has the exclusive right 
                to reproduce a sound recording under the laws 
                of any State, as of the day before the date of 
                enactment of this section; or
                  (B) any person to which a right to enforce a 
                violation of this section may be transferred, 
                in whole or in part, after the date of 
                enactment of this section, under--
                          (i) subsections (d) and (e) of 
                        section 201; and
                          (ii) section 204.

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