HR 848 IH

To provide parity in radio performance rights under title 17, United States Code, and for other purposes.CommentsClose CommentsPermalink

February 4, 2009CommentsClose CommentsPermalink

Mr. CONYERS (for himself, Mr. ISSA, Mr. BERMAN, Mrs. BLACKBURN, Mr. HODES, Ms. WASSERMAN SCHULTZ, Mr. WEINER, Mr. COHEN, Mr. NADLER of New York, Mr. WEXLER, Mr. PETERSON, Mr. JOHNSON of Georgia, Mr. SCHIFF, Mr. SHERMAN, Mr. SHADEGG, Ms. JACKSON-LEE of Texas, Ms. LINDA T. SANCHEZ of California, Ms. HARMAN, and Mr. WAXMAN) introduced the following bill; which was referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

To provide parity in radio performance rights under title 17, United States Code, and for other purposes.CommentsClose CommentsPermalink

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Performance Rights Act’. CommentsClose CommentsPermalink

SEC. 2. ESTABLISHING EQUITABLE TREATMENT FOR TERRESTRIAL BROADCAST, CABLE, SATELLITE, AND INTERNET SERVICES.

(a) Performance Right Applicable to Radio Transmissions Generally-Section 106(6) of title 17, United States Code, is amended to read as follows: CommentsClose CommentsPermalink





‘(6) in the case of sound recordings, to perform the copyrighted work publicly by means of an audio transmission.’. CommentsClose CommentsPermalink





(b) Inclusion of Terrestrial Broadcasts in Existing Performance Right-Section 114(d)(1) of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(1) in the matter preceding subparagraph (A), by striking ‘a digital’ and inserting ‘an’; and CommentsClose CommentsPermalink





(2) by striking subparagraph (A). CommentsClose CommentsPermalink





(c) Inclusion of Terrestrial Broadcasts in Existing Statutory License System-Section 114(j)(6) of title 17, United States Code, is amended by striking ‘digital’. CommentsClose CommentsPermalink





(d) Ensuring Platform Parity-Section 114(f) of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(1) by striking paragraph (1); CommentsClose CommentsPermalink





(2) by redesignating paragraphs (2), (3), (4), and (5) as paragraphs (1), (2), (3), and (4), respectively; and CommentsClose CommentsPermalink





(3) in paragraph (1), as redesignated-- CommentsClose CommentsPermalink





(A) in subparagraph (A), by striking ‘under chapter 8’ and all that follows through the end of the third sentence and inserting ‘under chapter 8 shall determine reasonable rates and terms of royalty payments for transmissions subject to statutory licensing under subsection (d)(2) during 5-year periods beginning on January 1 of the second year following the year in which the proceedings are to be commenced, except in the case of a different transitional period provided under section 6(b)(3) of the Copyright Royalty and Distribution Reform Act of 2004, or such other period as the parties may agree.’; CommentsClose CommentsPermalink





(B) in subparagraph (B)-- CommentsClose CommentsPermalink





(i) in the second sentence, by striking ‘eligible nonsubscription transmission’; and CommentsClose CommentsPermalink





(ii) in the third sentence, by striking ‘eligible nonsubscription services and new subscription’ and all that follows through ‘subparagraph (A)’ and inserting ‘services, in addition to the objectives set forth in subparagraphs (A), (B), and (C) of section 801(b)(1), the Copyright Royalty Judges may consider the rates and terms for comparable types of services and comparable circumstances under voluntary license agreements. Notwithstanding section 801(b)(1), the provisions of section 801(b)(1)(D) shall not be taken into account by the Copyright Royalty Judges in any proceeding under this section’; CommentsClose CommentsPermalink





(C) by striking subparagraph (C) and inserting the following: CommentsClose CommentsPermalink





‘(C) The procedures under subparagraphs (A) and (B) shall also be initiated pursuant to a petition filed by any copyright owner of sound recordings 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 preexisting services most recently determined under subparagraph (A) or (B) and chapter 8 expire, or such other period as the parties may agree.’. CommentsClose CommentsPermalink





(e) Technical and Conforming Amendments- CommentsClose CommentsPermalink





(1) SECTION 114(F)-Section 114(f) of title 17, United States Code (as amended by subsection (d)), is further amended-- CommentsClose CommentsPermalink





(A) in paragraph (1)(B), in the first sentence, by striking ‘paragraph (3)’ and inserting ‘paragraph (2)’; and CommentsClose CommentsPermalink





(B) in paragraph (4)(C), by striking ‘under paragraph (4)’ and inserting ‘under paragraph (3)’. CommentsClose CommentsPermalink





(2) SECTION 114(J)-Section 114(j)(6) of title 17, United States Code, is amended by striking ‘retransmissions of broadcast transmissions’ and inserting ‘broadcast transmissions and retransmissions of broadcast transmissions’. CommentsClose CommentsPermalink





(3) SECTION 804-Section 804(b)(3)(C) of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(A) in clause (i), by striking ‘and 114(f)(2)(C)’; CommentsClose CommentsPermalink





(B) in clause (iii)(II), by striking ‘114(f)(4)(B)(ii)’ and inserting ‘114(f)(3)(B)(ii)’; and CommentsClose CommentsPermalink





(C) in clause (iv), by striking ‘or 114(f)(2)(C), as the case may be’. CommentsClose CommentsPermalink

SEC. 3. SPECIAL TREATMENT FOR MINORITY, FEMALE, RELIGIOUS, RURAL, SMALL, NONCOMMERCIAL, PUBLIC, EDUCATIONAL, AND RELIGIOUSCOMMUNITY STATIONS AND CERTAIN USES.

(a) Minority, Female, Religious, Rural, Small, Noncommercial, Public, Educational, and ReligiousCommunity Radio Stations- CommentsClose CommentsPermalink





(1) IN GENERAL-Section 114(f)(2) of title 17, United States Code1) of title 17, United States Code, as redesignated by section 2(d), is amended by adding at the end the following: CommentsClose CommentsPermalink





‘(D)(i) Notwithstanding the provisions of subparagraphs (A) through (C), each individual terrestrial broadcast station that has gross revenues in any calendar year of less than $1,250,000within a range specified in clause (ii) may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $5,000 per yearas provided in clause (ii), in lieu of the amount such station would otherwise be required to pay under this paragraph. Such royalty fee shall not be taken into account in determining royalty rates in a proceeding under chapter 8, or in any other administrative, judicial, or other Federal Government proceeding. CommentsClose CommentsPermalink





‘(Eii) As provided in clause (i), each individual terrestrial broadcast station that has gross revenues in any calendar year of-- CommentsClose CommentsPermalink





‘(I) less than $100,000 may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $500 per year; CommentsClose CommentsPermalink





‘(II) at least $100,000 but less than $500,000 may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $2,500 per year; and CommentsClose CommentsPermalink





‘(III) at least $500,000 but less than $1,250,000 may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $5,000 per year. CommentsClose CommentsPermalink





‘(E)(i) Notwithstanding the provisions of subparagraphs (A) through (C), each individual terrestrial broadcast station that is a public broadcasting entity as defined in section 118(f) and that has gross revenues within a range specified in clause (ii) may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $1,000 per yearas provided in clause (ii), in lieu of the amount such station would otherwise be required to pay under this paragraph. Such royalty fee shall not be taken into account in determining royalty rates in a proceeding under chapter 8, or in any other administrative, judicial, or other Federal Government proceeding. CommentsClose CommentsPermalink





‘(ii) As provided in clause (i), each individual terrestrial broadcast station that is a public broadcasting entity as defined in section 118(f) and has gross receipts in any calendar year of-- CommentsClose CommentsPermalink





‘(I) less than $100,000 may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $500 per year; and CommentsClose CommentsPermalink





‘(II) $100,000 or more may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $1,000 per year. CommentsClose CommentsPermalink





‘(F) Notwithstanding the provisions of subparagraphs (A) through (E), each individual terrestrial broadcast station that had total gross revenues during the 4 full calendar quarters immediately preceding the date of enactment of the Performance Rights Act of-- CommentsClose CommentsPermalink





‘(i) less than $5,000,000 shall not be required to pay a royalty under this paragraph during the 3 years immediately following the date of enactment of the Performance Rights Act; and CommentsClose CommentsPermalink





‘(ii) $5,000,000 or more shall not be required to pay a royalty under this paragraph during the 1 year immediately following the date of enactment of the Performance Rights Act. CommentsClose CommentsPermalink





The provisions of this subparagraph shall not be taken into account in determining royalty rates in a proceeding under chapter 8, or in any other administrative, judicial, or other Federal Government proceeding.’. CommentsClose CommentsPermalink





(2) PAYMENT DATE- A payment under subparagraph (D) or (E) of section 114(f)(2section 114(f)(1) of title 17, United States Code, as added by paragraph (1), 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 Act, under such section 114(f)(2) by reason of the amendment made by section 2(b)(2) of this Act. CommentsClose CommentsPermalink





(b) Transmission of Religious Services; Incidental Uses of Music-Section 114(d)(1) of title 17, United States Code, as amended by section 2(b), is further amended by inserting the following before subparagraph (B): CommentsClose CommentsPermalink





‘(A) an eligible nonsubscription transmission of-- CommentsClose CommentsPermalink





‘(i) services at a place of worship or other religious assembly; and CommentsClose CommentsPermalink





‘(ii) an incidental use of a musical sound recording;’. CommentsClose CommentsPermalink

SEC. 4. AVAILABILITY OF PER PROGRAM LICENSE.

Section 114(f)(2)(B) of title 17, United States Code1)(B) of title 17, United States Code, as redesignated by section 2(d), is amended by inserting after the second sentence the following new sentence: ‘Such rates and terms shall include a per program license option for terrestrial broadcast stations that make limited feature uses of sound recordings.’ CommentsClose CommentsPermalink

SEC. 5. NO HARMFUL EFFECTS ON SONGWRITERS.

(a) No Adverse Affect on License Fees for Underlying Musical Works; Necessity for Other Licenses- CommentsClose CommentsPermalink





(1) IN GENERAL-Section 114(i) of title 17, United States Code, is amended to read as follows: CommentsClose CommentsPermalink





‘(i) No Adverse Affect on License Fees for Underlying Musical Works; Necessity for Other Licenses- CommentsClose CommentsPermalink





‘(1) NO ADVERSE AFFECT ON LICENSE FEES FOR UNDERLYING MUSICAL WORKS- License fees payable for the public performance of sound recordings under section 106(6) shall not be cited, taken into account, or otherwise used in any administrative, judicial, or other governmental forum or proceeding, or otherwise, to set or adjust the license fees payable to copyright owners of musical works or their representatives for the public performance of their works, for the purpose of reducing or adversely affecting such license fees. License fees payable to copyright owners for the public performance of their musical works shall not be reduced or adversely affected in any respect as a result of the rights granted by section 106(6). CommentsClose CommentsPermalink





‘(2) NECESSITY FOR OTHER LICENSES- Notwithstanding the grant by an owner of copyright in a sound recording of an exclusive or nonexclusive license of the right under section 106(6) to perform the work publicly, a licensee of that sound recording may not publicly perform such sound recording unless a license has been granted for the public performance of any copyrighted musical work contained in the sound recording. 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.’. CommentsClose CommentsPermalink





(2) CONFORMING AMENDMENT-Section 114(d)(3)(C) of title 17, United States Code, is hereby repealed. CommentsClose CommentsPermalink





(b) Public Performance Rights and Royalties- 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. CommentsClose CommentsPermalink





(c) Preservation of Royalties on Underlying Works Publicly Performed by Terrestrial Broadcast Stations-Section 114(f) of title 17, United States Code, is(as amended by section 2(d)) is further amended by adding at the end the following new paragraph: CommentsClose CommentsPermalink





‘(65) Notwithstanding any other provision of this section, under no circumstances shall the rates established by the Copyright Royalty Judges for the public performance of sound recordings be cited, taken into account, or otherwise used in any administrative, judicial, or other governmental forum or proceeding, or otherwise, to reduce or adversely affect the license fees payable to copyright owners of musical works or their representatives for the public performance of their works by terrestrial broadcast stations, and such license fees for the public performance of musical works shall be independent of license fees paid for the public performance of sound recordings.’. CommentsClose CommentsPermalink

SEC. 6. PAYMENT OF CERTAIN ROYALTIES.

Section 114(g) of title 17, United States Code, is amended-- CommentsClose CommentsPermalink





(1) by amending paragraph (1) to read as follows: CommentsClose CommentsPermalink





‘(1) Except in the case of a transmission to which paragraph (5) applies or a transmission licensed under a statutory license in accordance with subsection (f) of this section, the following shall apply: CommentsClose CommentsPermalink





‘(A) A featured recording artist who performs on a sound recording that has been licensed for public performance by means of a digitaln audio 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. CommentsClose CommentsPermalink





‘(B)(i) In a case in which the copyright owner of a sound recording has licensed the sound recording for the public performance of the sound recording by means of a digitaln audio transmission, the copyright owner shall deposit 1 percent of the receipts from the license with the American Federation of Musicians and American Federation of Television and Radio Artists Intellectual Property Rights Distribution Fund (or any successor entity) (in this subparagraph referred to as the ‘Fund’) to be distributed to nonfeatured performers who have performed on sound recordings. The sound recording copyright owner shall make such deposits for receipts received during the first half of a calendar year by August 15 and for receipts received during the second half of a calendar year by February 15 of the following calendar year. CommentsClose CommentsPermalink





‘(ii) A sound recording copyright owner shall include with deposits under clause (i) information regarding the amount of such deposits attributable to each licensee and, subject to obtaining consent, if necessary, from such licensee, for each sound recording performed by means of a digitaln audio transmission by such licensee during the applicable time period, and to the extent included in the accounting reports provided by the licensee to the sound recording copyright owner-- CommentsClose CommentsPermalink





‘(I) the identity of the artist; CommentsClose CommentsPermalink





‘(II) the International Standard Recording Code of the sound recording; CommentsClose CommentsPermalink





‘(III) the title of the sound recording; CommentsClose CommentsPermalink





‘(IV) the number of times the sound recording was transmitted; and CommentsClose CommentsPermalink





‘(V) the total amount of receipts collected from that licensee. CommentsClose CommentsPermalink





‘(iii) The Fund shall make the distributions described in clause (i) as follows: 50 percent shall be paid to nonfeatured musicians (whether or not members of the American Federation of Musicians) and 50 percent shall be paid to nonfeatured vocalists (whether or not members of the American Federation of Television and Radio Artists). The Fund may, prior to making such distributions, deduct the reasonable costs related to making such distributions. CommentsClose CommentsPermalink





‘(iv) The sound recording copyright owner shall not be required to provide any additional information to the Fund other than what is required under this subparagraph. Sound recording copyright owners shall use reasonable good faith efforts to include in all relevant licenses a requirement to report the information identified in subclauses (I) through (V) of clause (ii). Amounts required under clause (i) that are not paid by the date specified in such clause shall be subject to interest at the rate of 6 percent per annum for each day of nonpayment after the date the payment was due.’; CommentsClose CommentsPermalink





and(2 (2) in paragraph (2)(A), by striking ‘digital’; and CommentsClose CommentsPermalink





(3) by adding at the end the following new paragraph: CommentsClose CommentsPermalink





‘(5) Notwithstanding paragraph (1), to the extent that a license granted by the copyright owner of a sound recording to a terrestrial broadcast station extends to such station’s nonsubscription broadcast transmissions otherwise licensable under a statutory license in accordance with subsection (f), the station shall pay to the agent designated to distribute statutory licensing receipts from the licensing of transmissions in accordance with subsection (f), 50 percent of the total royalties that the station is required to pay for such transmissions under the applicable license agreement. That agent shall distribute such payments in proportion to the distributions provided in subparagraphs (B) through (D) of paragraph (2), and such payments shall be the sole payments to which featured and nonfeatured artists are entitled by virtue of such transmissions under the direct license with that station.’. CommentsClose CommentsPermalink