S 379 ISRSCommentsClose CommentsPermalink

To provide fair compensation to artists for use of their sound recordings.CommentsClose CommentsPermalink

February 4, 2009CommentsClose CommentsPermalink

Mr. LEAHY (for himself, Mr. HATCH, Mrs. FEINSTEIN, Mr. CORKER, and Mrs. BOXER, Mr. ALEXANDER, and Mr. SCHUMER) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

To provide fair compensation to artists for use of their sound recordings.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. [Struck out->]EQUITABLE TREATMENT FOR TERRESTRIAL BROADCASTS [<-Struck out] ESTABLISHING EQUITABLE TREATMENT FOR TERRESTRIAL, 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’; andCommentsClose 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) Eliminating Regulatory Burdens for Terrestrial Broadcast Stations- Section 114(d)(2) of title 17, United States Code, is amended in the matter preceding subparagraph (A) by striking ‘subsection (f) if’ and inserting ‘subsection (f) if, other than for a nonsubscription and noninteractive broadcast transmission,’.CommentsClose CommentsPermalink





(e) 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’; and 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





(f) Technical and Conforming Amendments- CommentsClose CommentsPermalink





(1) SECTION 114(F)-Section 114(f) of title 17, United States Code (as amended by subsection (e)), 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 SMALL, NONCOMMERCIAL, EDUCATIONAL, AND RELIGIOUS STATIONS AND CERTAIN USES.

(a) Small, Noncommercial, Educational, and Religious 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(e), 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 within a range specified in clause (ii) may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee as 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 has gross revenues in any calendar year of-- CommentsClose CommentsPermalink





‘(I) less than $1,250,000 may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $100 per year; CommentsClose CommentsPermalink





‘(II) at least $50,000 but 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





‘(III) 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





‘(IV) 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 as 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





‘(E) Notwithstanding the provisions of subparagraphs (A) through (Cii) 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 $50,000 may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $100 per year; CommentsClose CommentsPermalink





‘(II) at least $50,000 but 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





‘(III) $100,000 or more may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $1,000 per year, in lieu of the amount such station would otherwise. 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 under this paragraph. Such royalty feea 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)(2 [Struck out->]114(f)(2)[<-Struck out] 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 [Struck out->]114(f)(2)[<-Struck out] 114(f)(1) 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 [Struck out->]and[<-Struck out] orCommentsClose CommentsPermalink





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

SEC. 4. AVAILABILITY OF PER PROGRAM LICENSE.

Section114(f)(2)(B) of title 17, United States Code [Struck out->]114(f)(2)(B) of title 17, United States Code[<-Struck out] [Struck out->][<-Struck out] 114(f)(1)(B) of title 17, United States Code, as redesignated by section 2(e), 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) Preservation of RoyaltiesNo Adverse Affect on License Fees for Underlying WorksMusical 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(id)(3)(C) of title 17, United States Code, is amended in the second sentence by striking ‘It is the intent of Congress that royalties’ and inserting ‘Royalties’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 amended by adding at the end the following new paragraph: CommentsClose CommentsPermalink





‘(5) 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