A bill to amend title 17, United States Code, relating to the copyright interests of certain musical performances, and for other purposes.

[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1628 Introduced in Senate (IS)]

  2d Session
                                S. 1628

   To amend title 17, United States Code, relating to the copyright
   interests of certain musical performances, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 20, 1996

 Mr. Brown (for himself, Mr. Thomas, Mr. Faircloth, Mr. Thurmond, and
  Mr. Helms) introduced the following bill; which was read twice and
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

   To amend title 17, United States Code, relating to the copyright
   interests of certain musical performances, and for other purposes.

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

SECTION 1. MUSIC LICENSE FEES.

    Section 110(5) of title 17, United States Code, is amended to read
as follows:
            ``(5) communication within a commercial establishment of a
        transmission embodying a performance or display of a work by
        the reception of a broadcast, cable, satellite, or other
        transmission, if communicated--
                    ``(A) in an area within the establishment where a
                transmission is intended to be received by the general
                public that is smaller than 5,000 square feet;
                    ``(B) within an establishment whose gross annual
                income does not exceed 20 percent of the gross annual
                income of a small business under the applicable
                Standard Industrial Code as defined by the Small
                Business Administration;
                    ``(C) by means of 10 or fewer loudspeakers, not
                including speakers in audiovisual devices; or
                    ``(D) by means of speakers in audiovisual devices
                only,
        if no direct charge is made to see or hear the transmission,
        the reception of the transmission is authorized, and the
        transmission or retransmission is not further transmitted to
        the public beyond the premises of the retail establishment;''.

SEC. 2. ARBITRATION BETWEEN GENERAL MUSIC USERS AND PERFORMING RIGHTS
              SOCIETIES; AVAILABILITY OF REPERTOIRE.

    (a) Arbitration.--
            (1) In general.--Chapter 1 of title 17, United States Code,
        is amended by adding after section 120 the following new
        section:
``Sec. 121. Arbitration between general music users and performing
              rights societies; availability of repertoire
    ``(a) Arbitration.--
            ``(1) In general.--Any controversy or dispute arising out
        of or related to the appropriate fee to be paid for the user's
        past or future performance of nondramatic musical works in the
        repertoire of the performing rights society shall be settled by
        arbitration administered by the American Arbitration
        Association under its Commercial Arbitration Rules, and
        judgment on the award may be rendered by the arbitrators may be
        entered in any court having jurisdiction thereof.
            ``(2) Findings.--The arbitrator's findings shall be
        confidential and shall not provide any precedent for the
        determination of rates, except as to the parties involved.
            ``(3) Duration of determination.--In any arbitration
        proceeding initiated under this subsection, the arbitrator's
        determination of a fair and reasonable license fee for the
        performance of nondramatic musical works in the repertoire of
        the performing rights society shall apply for a period of not
        less than 3 years nor more than 5 years after the date of the
        arbitrator's determination.
    ``(b) Access to Licensing Information and Repertoire.--
            ``(1) In general.--Performing rights societies shall make
        available, free of charge, to all interested persons, online
        computer access to copyright and licensing information for each
        nondramatic musical work in its repertoire which is published
        or performed, without regard to whether the work is identified
        in the society's survey of music use. Such information shall,
        for each such nondramatic musical work, identify the work by
        the title of the work; the name of the writer; the name,
        address, and telephone number of the publisher; when the work
        will enter the public domain, if determinable; and the names of
        any artists known by the society to have recorded the work, to
        the extent such artist information is tracked by the society
        for any purpose other than this section. Such online computer
        access shall permit the efficient review of multiple musical
        works consistent with reasonably available technology.
            ``(2) Directory.--Each performing rights society shall make
        available at its reproduction cost, not including the cost of
        maintaining the database or any other overhead, not less
        frequently than semiannually, a printed directory or CD ROM
        directory of each title in its repertoire, at the choice of the
        music user, as of the date which is not more than 30 days
        before the date on which the directory is published, containing
        the information under paragraph (1).''.
            (2) Technical and conforming amendment.--The table of
        sections for chapter 1 of title 17, United States Code, is
        amended by adding after the item relating to section 120 the
        following:

``121. Arbitration between general music users and performing rights
                            societies; availability of repertoire.''.
    (b) Restrictions on Infringement Actions.--Section 504 of title 17,
United States Code, is amended by adding at the end thereof the
following new subsection:
    ``(d) Restrictions.--No fee for a license may be charged and no
action may be instituted, maintained, or supported by the society for
the public performance of a nondramatic musical work in a society's
repertoire, that is not identified and documented as required under
section 121, without regard to whether the nondramatic musical work has
been published or performed, if a good faith effort to search the
repertoire of the performing rights society as provided under section
121 has been made.''.

SEC. 3. RADIO PER PROGRAMMING PERIOD LICENSE.

    Section 504 of title 17, United States Code, as amended by section
2 of this Act, is further amended by adding at the end thereof the
following new subsection:
    ``(f) Radio Per Programming Period License.--
            ``(1) In general.--Each performing rights society shall
        offer, to any radio broadcaster that so requests, a per
        programming period license to perform nondramatic musical works
        in the repertoire of the performing rights society. Such
        license shall be offered on reasonable terms and conditions
        that provide an economically and administratively viable
        alternative to the blanket license offered by the society to
        radio broadcasters for all such broadcasters.
            ``(2) Price of per programming period license.--
                    ``(A) The total price of a per programming period
                license described under paragraph (1)--
                            ``(i) shall include separate components for
                        incidental and feature performances, with the
                        incidental performance component to be
                        independent of the quantity of such
                        performances by the broadcaster and not to
                        exceed the relative value the performing rights
                        society assigns to such performances in its
                        distribution of royalties; and
                            ``(ii) shall vary between the incidental
                        performance component, for a broadcaster that
                        makes only incidental performances of music in
                        the society's repertoire, and the fee that
                        would be payable under the blanket license
                        offered to radio broadcasters, in direct
                        proportion to the percentage of the
                        broadcaster's revenue attributable to
                        programming periods containing feature
                        performances of nondramatic musical works in
                        the society's repertoire compared to the
                        industry average percentage of revenue
                        attributable to programming periods containing
                        feature performances of such musical works.
                    ``(B) A nondramatic musical work shall not be
                considered in calculating any per programming period
                license fee under this subsection, if the performance
                of such work--
                            ``(i) has been licensed directly, at the
                        source, or other than by the society; or
                            ``(ii) constitutes fair use or is otherwise
                        exempt from liability under this title.
            ``(3) Administration of license.--Commencing on January 1,
        1998, the performance of nondramatic musical works by a
        broadcaster under any per programming period license shall be
        determined on the basis of statistically reliable sampling or
        monitoring by the performing rights society, and the society
        may not require the broadcaster to report such performances to
        the society. The society shall provide the broadcaster with a
        report detailing the results of such sampling or monitoring,
        identifying each programming period containing the performance
        of nondramatic musical works in the society's repertoire and
        the nondramatic musical works in the society's repertoire
        performed during each such period.
            ``(4) Implementation.--Any radio broadcaster entitled to a
        per programming period license under this subsection may bring
        an action to require compliance with this subsection in an
        appropriate United States district court, including any
        district court established by court order or statute as a court
        that resolves disputes, with respect to license rates, that may
        arise between performing rights societies and persons who
        perform musical works in the society's repertoire.
            ``(5) Definitions.--As used in this subsection--
                    ``(A) the term `blanket license' means a license
                provided by a performing rights society that authorizes
                the unlimited performance of musical works in the
                society's repertoire, for a fee that does not vary with
                the quantity of performances of musical works in the
                society's repertoire, or any other license with
                comparable economic effect;
                    ``(B) the term `incidental' as applied to
                performances shall include commercial jingles not
                exceeding 60 seconds in duration, bridges, themes or
                signatures, arrangements of works in the public domain,
                and background music, including music used in
                conjunction with sporting events; and
                    ``(C) the term `programming period' means any 15
                minute period of radio broadcasting commencing on the
                hour, or at 15, 30, or 45 minutes past the hour.''.

SEC. 4. RELIGIOUS SERVICE EXEMPTION.

    Section 110(3) of title 17, United States Code, is amended by
inserting after ``religious assembly'' the following: ``the
transmission of such services, whether live or recorded, or the
recording of copies or phonorecords of a transmission program embodying
such services in their entirety, if there is no commercial
advertisement or commercial sponsor within the program.''.

SEC. 5. CONFORMING AMENDMENTS RELATING TO DEFINITIONS.

    (a) Performing Rights Society.--Section 101 of title 17, United
States Code, is amended by inserting after the undesignated paragraph
relating to the definition of ``perform'' the following:
            ``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, Broadcast Music, Inc., and
        SESAC, Inc. The repertoire of a performing rights society
        consists of those works for which the society provides licenses
        on behalf of the owners of copyright in the works.''.
    (b) General Music User.--Section 101 of title 17, United States
Code, is amended by inserting after the undesignated paragraph relating
to the definition of ``fixed'' the following:
            ``A `general music user' is any person who performs musical
        works publicly but is not engaged in the transmission of
        musical works to the general public or to subscribers through
        broadcast, cable, satellite, or other transmission. For
        purposes of this paragraph, transmissions within a single
        commercial establishment or within establishments under common
        ownership or control are not transmissions to the general
        public.''.
    (c) Loudspeaker.--Section 101 of title 17, United States Code, is
amended by inserting after the undesignated paragraph relating to the
definition of ``Literary works'' the following:
            ``A `loudspeaker' is any device or self contained
        collection of devices that converts electronic signals to
        audible sound.''.
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