FILE s1628.is S 1628 IS 104th CONGRESS 2d Session 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. [Italic->] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, [<-Italic] 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.'.