[104th Congress Public Law 39]
[From the U.S. Government Printing Office]
<DOC>
[DOCID: f:publ39.104]
DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS ACT OF 1995
[[Page 109 STAT. 336]]
Public Law 104-39
104th Congress
An Act
To amend title 17, United States Code, to provide an exclusive right to
perform sound recordings publicly by means of digital transmissions, and
for other purposes. <<NOTE: Nov. 1, 1995 - [S. 227]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Digital
Performance Right in Sound Recordings Act of
1995. Copyrights. Communications.>>
SECTION 1. SHORT TITLE. <<NOTE: 17 USC 101 note.>>
This Act may be cited as the ``Digital Performance Right in Sound
Recordings Act of 1995''.
SEC. 2. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS.
Section 106 of title 17, United States Code, is amended--
(1) in paragraph (4) by striking ``and'' after the
semicolon;
(2) in paragraph (5) by striking the period and inserting
``; and''; and
(3) by adding at the end the following:
``(6) in the case of sound recordings, to perform the
copyrighted work publicly by means of a digital audio
transmission.''.
SEC. 3. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS.
Section 114 of title 17, United States Code, is amended--
(1) in subsection (a) by striking ``and (3)'' and inserting
``(3) and (6)'';
(2) in subsection (b) in the first sentence by striking
``phonorecords, or of copies of motion pictures and other
audiovisual works,'' and inserting ``phonorecords or copies'';
(3) by striking subsection (d) and inserting:
``(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
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)(i) a nonsubscription transmission other than a
retransmission;
``(ii) an initial nonsubscription retransmission
made for direct reception by members of the public of a
prior or simultaneous incidental transmission that is
not made for direct reception by members of the public;
or
``(iii) a nonsubscription broadcast transmission;
``(B) a retransmission of a nonsubscription
broadcast transmission: Provided, That, in the case of a
retransmission of a radio station's broadcast
transmission--
[[Page 109 STAT. 337]]
``(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 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
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
terrestrial broadcast retransmission; or
``(C) 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
[[Page 109 STAT. 338]]
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) Subscription transmissions.--In the case of a
subscription transmission not exempt under subsection (d)(1),
the performance of a sound recording publicly by means of a
digital audio transmission shall be subject to statutory
licensing, in accordance with subsection (f) of this section,
if--
``(A) the transmission is not part of an interactive
service;
``(B) the transmission does not exceed the sound
recording performance complement;
``(C) 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;
``(D) except in the case of 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
``(E) except as provided in section 1002(e) of this
title, the transmission of the sound recording is
accompanied 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.
``(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.
[[Page 109 STAT. 339]]
``(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 under section 106(6).
``(B) Nothing in this section annuls or limits in
any way--
[[Page 109 STAT. 340]]
``(i) the exclusive right to publicly perform
a musical work, including by means of a digital
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.'';
and
(4) by adding after subsection (d) the following:
``(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 Nonexempt Subscription Transmissions.--
``(1) <<NOTE: Federal Register, publication.>> No later than
30 days after the enactment of the Digital Performance Right in
Sound Recordings Act of 1995,
[[Page 109 STAT. 341]]
the Librarian of Congress shall cause notice to be published in
the Federal Register of the initiation of voluntary negotiation
proceedings for the purpose of determining reasonable terms and
rates of royalty payments for the activities specified by
subsection (d)(2) of this section during the period beginning on
the effective date of such Act and ending on December 31, 2000.
Such terms and rates shall distinguish among the different types
of digital audio transmission services then in operation. Any
copyright owners of sound recordings or any entities performing
sound recordings affected by this section may submit to the
Librarian of Congress licenses covering such activities with
respect to such sound recordings. The parties to each
negotiation proceeding shall bear their own costs.
``(2) <<NOTE: Federal Register, publication.>> In the
absence of license agreements negotiated under paragraph (1),
during the 60-day period commencing 6 months after publication
of the notice specified in paragraph (1), and upon the filing of
a petition in accordance with section 803(a)(1), the Librarian
of Congress shall, pursuant to chapter 8, convene a copyright
arbitration royalty panel to determine and publish in the
Federal Register a schedule of rates and terms which, subject to
paragraph (3), shall be binding on all copyright owners of sound
recordings and entities performing sound recordings. In addition
to the objectives set forth in section 801(b)(1), in
establishing such rates and terms, the copyright arbitration
royalty panel may consider the rates and terms for comparable
types of digital audio transmission services and comparable
circumstances under voluntary license agreements negotiated as
provided in paragraph (1). <<NOTE: Records.>> The Librarian of
Congress 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.
``(3) License agreements voluntarily negotiated at any time
between one or more copyright owners of sound recordings and one
or more entities performing sound recordings shall be given
effect in lieu of any determination by a copyright arbitration
royalty panel or decision by the Librarian of Congress.
``(4) <<NOTE: Regulations.>> (A) Publication of a notice of
the initiation of voluntary negotiation proceedings as specified
in paragraph (1) shall be repeated, in accordance with
regulations that the Librarian of Congress shall prescribe--
``(i) no later than 30 days after a petition is
filed by any copyright owners of sound recordings or any
entities performing sound recordings affected by this
section indicating that a new type of digital audio
transmission service on which sound recordings are
performed is or is about to become operational; and
``(ii) in the first week of January, 2000 and at 5-
year intervals thereafter.
``(B)(i) The procedures specified in paragraph (2) shall be
repeated, in accordance with regulations that the Librarian of
Congress shall prescribe, upon the filing of a petition in
accordance with section 803(a)(1) during a 60-day period
commencing--
[[Page 109 STAT. 342]]
``(I) six months after publication of a notice of
the initiation of voluntary negotiation proceedings
under paragraph (1) pursuant to a petition under
paragraph (4)(A)(i); or
``(II) on July 1, 2000 and at 5-year intervals
thereafter.
``(ii) The procedures specified in paragraph (2) shall be
concluded in accordance with section 802.
``(5)(A) Any person who wishes to perform a sound recording
publicly by means of a nonexempt subscription transmission under
this subsection may do so without infringing the exclusive right
of the copyright owner of the sound recording--
``(i) <<NOTE: Regulations.>> by complying with such
notice requirements as the Librarian of Congress 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 twentieth day of the month next succeeding the month
in which the royalty fees are set.
``(g) Proceeds From Licensing of Subscription Transmissions.--
``(1) Except in the case of a subscription transmission
licensed in accordance with subsection (f) of this section--
``(A) a featured recording artist who performs on a
sound recording that has been licensed for a
subscription 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
subscription 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) 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 audio transmission shall
allocate to recording artists in the following manner its
receipts from the statutory licensing of subscription
transmission performances of the sound recording in accordance
with subsection (f) of this section:
``(A) 2\1/2\ 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.
``(B) 2\1/2\ 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
[[Page 109 STAT. 343]]
American Federation of Television and Radio Artists) who
have performed on sound recordings.
``(C) 45 percent of the receipts shall be allocated,
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).
``(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.
``(i) No Effect on Royalties for Underlying Works.--License fees
payable for the public performance of sound recordings under section
106(6) shall not be taken into account in any administrative, judicial,
or other governmental proceeding to set or adjust the royalties payable
to copyright owners of musical works for the public performance of their
works. It is the intent of Congress that royalties payable to copyright
owners of musical works for the public performance of their works shall
not be diminished in any respect as a result of the rights granted by
section 106(6).
``(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) A `broadcast' transmission is a transmission made by a
terrestrial broadcast station licensed as such by the Federal
Communications Commission.
``(3) 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.
``(4) An `interactive service' is one that enables a member
of the public to receive, on request, a transmission of a
particular sound recording chosen 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
[[Page 109 STAT. 344]]
does not make a service interactive. If an entity offers both
interactive and non-interactive services (either concurrently or
at different times), the non-interactive component shall not be
treated as part of an interactive service.
``(5) A `nonsubscription' transmission is any transmission
that is not a subscription transmission.
``(6) 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).
``(7) 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.
``(8) 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.
``(9) A `transmission' includes both an initial transmission
and a retransmission.''.
SEC. 4. MECHANICAL ROYALTIES IN DIGITAL PHONORECORD DELIVERIES.
Section 115 of title 17, United States Code, is amended--
(1) in subsection (a)(1)--
(A) in the first sentence by striking out ``any
other person'' and inserting in lieu thereof ``any other
person, including those who make phonorecords or digital
phonorecord deliveries,''; and
(B) in the second sentence by inserting before the
period ``, including by means of a digital phonorecord
delivery'';
(2) in subsection (c)(2) in the second sentence by inserting
``and other than as provided in paragraph (3),'' after ``For
this purpose,'';
[[Page 109 STAT. 345]]
(3) by redesignating paragraphs (3), (4), and (5) of
subsection (c) as paragraphs (4), (5), and (6), respectively,
and by inserting after paragraph (2) the following new
paragraph:
``(3)(A) A compulsory license under this section includes
the right of the compulsory licensee to distribute or authorize
the distribution of a phonorecord of a nondramatic musical work
by means of a digital transmission which constitutes a digital
phonorecord delivery, regardless of whether the digital
transmission is also a public performance of the sound recording
under section 106(6) of this title or of any nondramatic musical
work embodied therein under section 106(4) of this title. For
every digital phonorecord delivery by or under the authority of
the compulsory licensee--
``(i) on or before December 31, 1997, the royalty
payable by the compulsory licensee shall be the royalty
prescribed under paragraph (2) and chapter 8 of this
title; and
``(ii) on or after January 1, 1998, the royalty
payable by the compulsory licensee shall be the royalty
prescribed under subparagraphs (B) through (F) and
chapter 8 of this title.
``(B) Notwithstanding any provision of the antitrust laws,
any copyright owners of nondramatic musical works and any
persons entitled to obtain a compulsory license under subsection
(a)(1) may negotiate and agree upon the terms and rates of
royalty payments under this paragraph 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. Such authority to negotiate the terms and
rates of royalty payments includes, but is not limited to, the
authority to negotiate the year during which the royalty rates
prescribed under subparagraphs (B) through (F) and chapter 8 of
this title shall next be determined.
``(C) <<NOTE: Federal Register, publication.>> During the
period of June 30, 1996, through December 31, 1996, the
Librarian of Congress shall cause notice to be published in the
Federal Register of the initiation of voluntary negotiation
proceedings for the purpose of determining reasonable terms and
rates of royalty payments for the activities specified by
subparagraph (A) during the period beginning January 1, 1998,
and ending on the effective date of any new terms and rates
established pursuant to subparagraph (C), (D) or (F), or such
other date (regarding digital phonorecord deliveries) as the
parties may agree. Such terms and rates shall distinguish
between (i) digital phonorecord deliveries where the
reproduction or distribution of a phonorecord is incidental to
the transmission which constitutes the digital phonorecord
delivery, and (ii) digital phonorecord deliveries in general.
Any copyright owners of nondramatic musical works and any
persons entitled to obtain a compulsory license under subsection
(a)(1) may submit to the Librarian of Congress licenses covering
such activities. The parties to each negotiation proceeding
shall bear their own costs.
``(D) <<NOTE: Federal Register, publication.>> In the
absence of license agreements negotiated under subparagraphs (B)
and (C), upon the filing of a petition in accordance with
section 803(a)(1), the Librarian of Congress shall, pursuant to
chapter 8, convene a copyright arbitration royalty panel to
determine and publish in the Federal Register a schedule of
rates and terms which, subject to subparagraph
[[Page 109 STAT. 346]]
(E), shall be binding on all copyright owners of nondramatic
musical works and persons entitled to obtain a compulsory
license under subsection (a)(1) during the period beginning
January 1, 1998, and ending on the effective date of any new
terms and rates established pursuant to subparagraph (C), (D) or
(F), or such other date (regarding digital phonorecord
deliveries) as may be determined pursuant to subparagraphs (B)
and (C). Such terms and rates shall distinguish between (i)
digital phonorecord deliveries where the reproduction or
distribution of a phonorecord is incidental to the transmission
which constitutes the digital phonorecord delivery, and (ii)
digital phonorecord deliveries in general. In addition to the
objectives set forth in section 801(b)(1), in establishing such
rates and terms, the copyright arbitration royalty panel may
consider rates and terms under voluntary license agreements
negotiated as provided in subparagraphs (B) and (C). The royalty
rates payable for a compulsory license for a digital phonorecord
delivery under this section shall be established de novo and no
precedential effect shall be given to the amount of the royalty
payable by a compulsory licensee for digital phonorecord
deliveries on or before December 31,
1997. <<NOTE: Records.>> The Librarian of Congress 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 and made
available by persons making digital phonorecord deliveries.
``(E)(i) License agreements voluntarily negotiated at any
time between one or more copyright owners of nondramatic musical
works and one or more persons entitled to obtain a compulsory
license under subsection (a)(1) shall be given effect in lieu of
any determination by the Librarian of Congress. Subject to
clause (ii), the royalty rates determined pursuant to
subparagraph (C), (D) or (F) shall be given effect in lieu of
any contrary royalty rates specified in a contract pursuant to
which a recording artist who is the author of a nondramatic
musical work grants a license under that person's exclusive
rights in the musical work under sections 106 (1) and (3) or
commits another person to grant a license in that musical work
under sections 106 (1) and (3), to a person desiring to fix in a
tangible medium of expression a sound recording embodying the
musical work.
``(ii) The second sentence of clause (i) shall not apply
to--
``(I) a contract entered into on or before June 22,
1995, and not modified thereafter for the purpose of
reducing the royalty rates determined pursuant to
subparagraph (C), (D) or (F) or of increasing the number
of musical works within the scope of the contract
covered by the reduced rates, except if a contract
entered into on or before June 22, 1995, is modified
thereafter for the purpose of increasing the number of
musical works within the scope of the contract, any
contrary royalty rates specified in the contract shall
be given effect in lieu of royalty rates determined
pursuant to subparagraph (C), (D) or (F) for the number
of musical works within the scope of the contract as of
June 22, 1995; and
``(II) a contract entered into after the date that
the sound recording is fixed in a tangible medium of
expression
[[Page 109 STAT. 347]]
substantially in a form intended for commercial release,
if at the time the contract is entered into, the
recording artist retains the right to grant licenses as
to the musical work under sections 106(1) and 106(3).
``(F) <<NOTE: Regulations.>> The procedures specified in
subparagraphs (C) and (D) shall be repeated and concluded, in
accordance with regulations that the Librarian of Congress shall
prescribe, in each fifth calendar year after 1997, except to the
extent that different years for the repeating and concluding of
such proceedings may be determined in accordance with
subparagraphs (B) and (C).
``(G) Except as provided in section 1002(e) of this title, a
digital phonorecord delivery licensed under this paragraph shall
be accompanied by the information encoded in the 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.
``(H)(i) A digital phonorecord delivery of a sound recording
is actionable as an act of infringement under section 501, and
is fully subject to the remedies provided by sections 502
through 506 and section 509, unless--
``(I) the digital phonorecord delivery has been
authorized by the copyright owner of the sound
recording; and
``(II) the owner of the copyright in the sound
recording or the entity making the digital phonorecord
delivery has obtained a compulsory license under this
section or has otherwise been authorized by the
copyright owner of the musical work to distribute or
authorize the distribution, by means of a digital
phonorecord delivery, of each musical work embodied in
the sound recording.
``(ii) Any cause of action under this subparagraph shall be
in addition to those available to the owner of the copyright in
the nondramatic musical work under subsection (c)(6) and section
106(4) and the owner of the copyright in the sound recording
under section 106(6).
``(I) The liability of the copyright owner of a sound
recording for infringement of the copyright in a nondramatic
musical work embodied in the sound recording shall be determined
in accordance with applicable law, except that the owner of a
copyright in a sound recording shall not be liable for a digital
phonorecord delivery by a third party if the owner of the
copyright in the sound recording does not license the
distribution of a phonorecord of the nondramatic musical work.
``(J) Nothing in section 1008 shall be construed to prevent
the exercise of the rights and remedies allowed by this
paragraph, paragraph (6), and chapter 5 in the event of a
digital phonorecord delivery, except that no action alleging
infringement of copyright may be brought under this title
against a manufacturer, importer or distributor of a digital
audio recording device, a digital audio recording medium, an
analog recording device, or an analog recording medium, or
against a consumer, based on the actions described in such
section.
``(K) Nothing in this section annuls or limits (i) the
exclusive right to publicly perform a sound recording or the
musical
[[Page 109 STAT. 348]]
work embodied therein, including by means of a digital
transmission, under sections 106(4) and 106(6), (ii) except for
compulsory licensing under the conditions specified by this
section, the exclusive rights to reproduce and distribute the
sound recording and the musical work embodied therein under
sections 106(1) and 106(3), including by means of a digital
phonorecord delivery, or (iii) any other rights under any other
provision 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.
``(L) The provisions of this section concerning digital
phonorecord deliveries shall not apply to any exempt
transmissions or retransmissions under section 114(d)(1). The
exemptions created in section 114(d)(1) do not expand or reduce
the rights of copyright owners under section 106 (1) through (5)
with respect to such transmissions and retransmissions.''; and
(5) by adding after subsection (c) the following:
``(d) Definition.--As used in this section, the following term has
the following meaning: A `digital phonorecord delivery' is each
individual delivery of a phonorecord by digital transmission of a sound
recording which results in a specifically identifiable reproduction by
or for any transmission recipient of a phonorecord of that sound
recording, regardless of whether the digital transmission is also a
public performance of the sound recording or any nondramatic musical
work embodied therein. A digital phonorecord delivery does not result
from a real-time, non-interactive subscription transmission of a sound
recording where no reproduction of the sound recording or the musical
work embodied therein is made from the inception of the transmission
through to its receipt by the transmission recipient in order to make
the sound recording audible.''.
SEC. 5. CONFORMING AMENDMENTS.
(a) Definitions.--Section 101 of title 17, United States Code, is
amended by inserting after the definition of ``device'', ``machine'', or
``process'' the following:
``A `digital transmission' is a transmission in whole or in
part in a digital or other non-analog format.''.
(b) Limitations on Exclusive Rights: Secondary Transmissions.--
Section 111(c)(1) of title 17, United States Code, is amended in the
first sentence by inserting ``and section 114(d)'' after ``of this
subsection''.
(c) Limitations on Exclusive Rights: Secondary Transmissions of
Superstations and Network Stations for Private Home Viewing.--
(1) Section 119(a)(1) of title 17, United States Code, is
amended in the first sentence by inserting ``and section
114(d)'' after ``of this subsection''.
(2) Section 119(a)(2)(A) of title 17, United States Code, is
amended in the first sentence by inserting ``and section
114(d)'' after ``of this subsection''.
(d) Copyright Arbitration Royalty Panels.--
(1) Section 801(b)(1) of title 17, United States Code, is
amended in the first and second sentences by striking ``115''
each place it appears and inserting ``114, 115,''.
[[Page 109 STAT. 349]]
(2) Section 802(c) of title 17, United States Code, is
amended in the third sentence by striking ``section 111, 116, or
119,'' and inserting ``section 111, 114, 116, or 119, any person
entitled to a compulsory license under section 114(d), any
person entitled to a compulsory license under section 115,''.
(3) Section 802(g) of title 17, United States Code, is
amended in the third sentence by inserting ``114,'' after
``111,''.
(4) Section 802(h)(2) of title 17, United States Code, is
amended by inserting ``114,'' after ``111,''.
(5) Section 803(a)(1) of title 17, United States Code, is
amended in the first sentence by striking ``115'' and inserting
``114, 115'' and by striking ``and (4)'' and inserting ``(4) and
(5)''.
(6) Section 803(a)(3) of title 17, United States Code, is
amended by inserting before the period ``or as prescribed in
section 115(c)(3)(D)''.
(7) Section 803(a) of title 17, United States Code, is
amended by inserting after paragraph (4) the following new
paragraph:
``(5) With respect to proceedings under section 801(b)(1)
concerning the determination of reasonable terms and rates of
royalty payments as provided in section 114, the Librarian of
Congress shall proceed when and as provided by that section.''.
SEC. 6. <<NOTE: 17 USC 101 note.>> EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect 3
months after the date of enactment of this Act, except that the
provisions of sections 114(e) and 114(f) of title 17, United States Code
(as added by section 3 of this Act) shall take effect immediately upon
the date of enactment of this Act.
Approved November 1, 1995.
LEGISLATIVE HISTORY--S. 227 (H.R. 1506):
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HOUSE REPORTS: No. 104-274 accompanying H.R. 1506 (Comm. on the
Judiciary).
SENATE REPORTS: No. 104-128 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 141 (1995):
Aug. 8, considered and passed Senate.
Oct. 17, H.R. 1506 and S. 227 considered and passed House.
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