S.28 - Fairness in Musical Licensing Act of 1997 105th Congress (1997-1998)
Bill
Hide Overview| Sponsor: | Sen. Thurmond, Strom [R-SC] (Introduced 01/21/1997) |
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| Committees: | Senate - Judiciary |
| Latest Action: | Senate - 01/21/1997 Read twice and referred to the Committee on Judiciary. (All Actions) |
| Tracker: Tip | This bill has the status Introduced Here are the steps for Status of Legislation:
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Subject — Policy Area:
- Commerce
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Text: S.28 — 105th Congress (1997-1998) All Information (Except Text)
Shown Here:
Introduced in Senate (01/21/1997)
[Congressional Bills 105th Congress]
[From the U.S. Government Printing Office]
[S. 28 Introduced in Senate (IS)]
105th CONGRESS
1st Session
S. 28
To amend title 17, United States Code, with respect to certain
exemptions from copyright, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 21, 1997
Mr. Thurmond (for himself 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, with respect to certain
exemptions from copyright, 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. SHORT TITLE.
This Act may be cited as the ``Fairness in Musical Licensing Act of
1997''.
SEC. 2. EXEMPTION OF CERTAIN MUSIC USES FROM COPYRIGHT PROTECTION.
(a) Business Exemption.--Section 110(5) of title 17, United States
Code, is amended to read as follows:
``(5) communication by electronic device of a transmission
embodying a performance or display of a nondramatic musical
work by the reception of a broadcast, cable, satellite, or
other transmission, unless--
``(A) an admission fee is charged specifically to
see or hear the transmission, or
``(B) the transmission is not properly licensed;''.
(b) Agricultural Events.--Section 110(6) of title 17, United States
Code, is amended to read as follows:
``(6) performance of a nondramatic musical work by a
governmental body or a nonprofit agricultural or horticultural
organization, in the course of an agricultural or horticultural
fair, convention, meeting, event, or exhibition conducted by
such body or organization; the exception provided by this
paragraph shall extend to any liability for copyright
infringement that would otherwise be imposed on such body or
organization, including under the doctrines of vicarious
liability, contributory infringement, or related infringement,
for a performance by a concessionaire, business establishment,
or other person at such fair, convention, meeting, event, or
exhibition, but shall not excuse any such person from liability
for the performance;''.
(c) Exemption Relating to Promotion.--Section 110(7) of title 17,
United States Code, is amended--
(1) by striking ``vending'';
(2) by striking ``sole'';
(3) by inserting ``or of the audio, video or other devices
utilized in the performance,'' after ``phonorecords of the
work,''; and
(4) by striking ``and is within the immediate area where
the sale is occurring''.
(d) Performances at Children's Camps.--Section 110 of title 17,
United States Code, is amended--
(1) by striking the periods at the end of paragraphs (8)
and (9) and inserting semicolons;
(2) in paragraph (10) by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end thereof the following:
``(11) performance of a nondramatic musical work at an
organized children's camp, if children in attendance sing all
or a portion of the work, children in attendance engage in
games or dance to the accompaniment of all or a portion of the
work, or the performance is of an instructional nature.''.
SEC. 3. BINDING ARBITRATION OF RATE DISPUTES INVOLVING PERFORMING
RIGHTS SOCIETIES.
(a) In General.--Section 504 of title 17, United States Code, is
amended by adding at the end the following new subsection:
``(d) Performing Rights Societies; Binding Arbitration.--
``(1) Arbitration of disputes prior to court action.--
``(A) Arbitration.--(i) If a general music user and
a performing rights society are unable to agree on the
appropriate fee to be paid for the user's past or
future performance of musical works in the repertoire
of the performing rights society, the general music
user shall, in lieu of any other dispute-resolution
mechanism established by any judgment or decree
governing the operation of the performing rights
society, be entitled to binding arbitration of such
disagreement pursuant to the rules of the American
Arbitration Association. The music user may initiate
such arbitration.
``(ii) The arbitrator in such binding arbitration
shall determine a fair and reasonable fee for the
general music user's past and future performance of
musical works in such society's repertoire and shall
determine whether the user's past performances of such
musical works, if any, infringed the copyrights of
works in the society's repertoire. If the arbitrator
determines that the general music user's past
performances of such musical works infringed the
copyrights of works in the society's repertoire, the
arbitrator shall impose a penalty for such
infringement. Such penalty shall not exceed the
arbitrator's determination of the fair and reasonable
license fee for the performances at issue.
``(B) Definitions.--(i) For purposes of this
paragraph, 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.
``(ii) 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.
``(iii) For purposes of clause (ii), an
`establishment' is a retail business, restaurant, bar,
inn, tavern, or any other place of business in which
the public may assemble.
``(C) Enforcement of arbitrator's determinations.--
An arbitrator's determination under this paragraph is
binding on the parties and may be enforced pursuant to
sections 9 through 13 of title 9.
``(2) Court-annexed arbitration.--In any civil action for
infringement of the right granted in section 106(4) involving a
musical work that is in the repertoire of a performing rights
society, if the defendant admits the prior public performance
of one or more works in the repertoire of the performing rights
society but contests the amount of the license fee demanded by
such society for such performance, the dispute shall, if
requested by the defendant, be submitted to arbitration under
section 652(e) of title 28. In such arbitration proceeding, the
arbitrator shall determine the amount owed by the defendant to
the performing rights society for all past public performances
of musical works in the society's repertoire. Such amount shall
not exceed two times the amount of the blanket license fee that
would be applied by the society to the defendant for the year
or years in which the performances occurred. In addition, the
arbitrator shall, if requested by the defendant, determine a
fair and reasonable license fee for the defendant's future
public performances of the musical works in such society's
repertoire.
``(3) Term of license fee determination.--In any
arbitration proceeding initiated under this subsection, the
arbitrator's determination of a fair and reasonable license fee
for the performance of the music in the repertoire of the
performing rights society concerned 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) Actions That Shall Be Referred to Arbitration.--Section 652 of
title 28, United States Code, is amended by adding at the end the
following:
``(e) Actions That Shall Be Referred to Arbitration.--In any civil
action for infringement of the right granted in section 106(4) of title
17 involving a musical work that is in the repertoire of a performing
rights society, if the defendant admits the public performance of any
musical work in the repertoire of the performing rights society but
contests the amount of the license fee demanded for such performance by
the society, the district court shall, if requested by the defendant,
refer the dispute to arbitration, which shall be conducted in
accordance with section 504(d)(2) of title 17. Each district court
shall establish procedures by local rule authorizing the use of
arbitration under this subsection. The definitions set forth in title
17 apply to the terms used in this subsection.''.
SEC. 4. RADIO PER PROGRAMMING PERIOD LICENSE.
Section 504 of title 17, United States Code, as amended by section
3 of this Act, is further amended by adding at the end thereof the
following new subsection:
``(e) Radio Per Programming Period Licenses.--
``(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 society's blanket license for all such
broadcasters.
``(2) Price of per programming period licenses.--(A) The
total price of a per programming period license described in
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 that the
performing rights society assigns to such performances
in its distribution of royalties; and
``(ii) shall not exceed the fee that would be
payable by the broadcaster under the lowest price
blanket license offered to radio broadcasters, and
shall vary between the incidental performance
component, for a broadcaster that makes only incidental
performances of music in the society's repertoire, and
such blanket license fee, in direct proportion to the
percentage of the broadcaster's revenue attributable to
programming periods containing feature performances of
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) Nondramatic musical works that have been licensed
directly or at the source, or whose performance constitutes
fair use or is otherwise exempt from liability under this
title, shall not be considered in calculating any per
programming period license fee under this subsection.
``(3) 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.
``(4) 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 or type of performances of musical works
in the society's repertoire;
``(B) the term `incidental' means 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. 5. ACCESS TO REPERTOIRE AND LICENSING INFORMATION.
Section 504 of title 17, United States Code, as amended by sections
3 and 4 of this Act, is further amended by adding at the end the
following:
``(f) Access to Musical Repertoire.--
``(1) Online computer access.--Each performing rights
society shall make available, free of charge, to all interested
persons, online computer access to copyright and licensing
information for each work in its repertoire. Such access shall,
for each such musical work, identify the work by title of the
work, the name of the author and the copyright owner, and the
names of any artists known to have performed the work. Such
online computer access shall permit the efficient review of
multiple musical works consistent with reasonably available
technology.
``(2) Directory of titles.--Each performing rights society
shall make available at cost, not less frequently than
semiannually, a printed directory of each title in its
repertoire, as of the date which is not more than 30 days
before the date on which the directory is published, containing
the information set forth in paragraph (1).
``(3) Documentation of right to license.--A performing
rights society shall, upon the request of any person who
performs or may perform musical works in the society's
repertoire, provide to that person copies of the documentation
establishing the society's right to license the public
performance of such musical works.
``(4) Restrictions on infringement actions.--
``(A) Restrictions.--A performing rights society
may not institute or be a party to, or pay the costs of
another party in, any action alleging the infringement
of the copyright in, or charge a fee under any per
programming period license for, any work in that
society's repertoire that is not identified and
documented as required by paragraphs (1), (2), and (3).
``(B) Exception.--Subparagraph (A) shall not apply
on the basis of a failure to comply with paragraph (2)
with respect to a musical work first entering the
society's repertoire within the 6-month period
beginning 30 days before the date on which the
society's last directory was published under paragraph
(2), if the society establishes that such musical work
was included in the online database required by
paragraph (1) not less than 10 days before the
performance giving rise to the alleged infringement or
charge.
``(g) Access to Licensing Information.--
``(1) Terms of licenses.--Each performing rights society
shall provide, within 5 business days after it receives a
written request from a licensee of any musical work in the
society's repertoire, or from any person that is negotiating to
become such a licensee--
``(A) the schedule of the society's license rates
and terms of the license fees to be paid under the
license agreement, including any sliding scale or
schedule for any increase or decrease in rates for the
duration of the license agreement;
``(B) the formulas by which the rates are derived;
and
``(C) license terms under agreements executed by
the performing rights society and licensees described
in subparagraph (A).
``(2) Copies of licenses.--Any performing rights society
that receives a written request from an entity that has been
requested to enter into a license agreement with the performing
rights society on behalf of persons who perform or may perform
musical works within that society's repertoire, shall provide
to that entity, within 5 business days after receiving that
request, a schedule of fees for such performances by similar
persons.''.
SEC. 6. ANNUAL REPORTS.
Not later than March 1 of each year, the Attorney General of the
United States shall submit a written report to the Congress on the
activities of the Department of Justice during the preceding calendar
year relating to the continuing supervision and enforcement by the
Department of the consent decree of the American Society of Composers,
Authors, and Publishers of March 14, 1950, and the consent decree of
Broadcast Music, Inc. of December 29, 1966. Such report shall include a
description of all issues raised or complaints filed with the
Department of Justice relating to the operations of those performing
rights societies, and a summary of the Department's actions or
investigations undertaken by the Department in response to such issues
and complaints.
SEC. 7. VICARIOUS LIABILITY PROHIBITED.
A landlord, an organizer or sponsor of a convention, exposition, or
meeting, a facility owner, or any other person making space available
to another party by contract, shall not be liable under any theory of
vicarious or contributory infringement with respect to an infringing
public performance of a copyrighted work by a tenant, lessee,
subtenant, sublessee, licensee, exhibitor, or other user of such space
on the ground that--
(1) a contract for such space provides the landlord,
organizer or sponsor, facility owner, or other person a right
or ability to control such space and compensation for the use
of such space; or
(2) the landlord, organizer or sponsor, facility owner, or
other person has or had at the time of the infringing
performance actual control over some aspects of the use of such
space,
if the contract for the use of such space prohibits infringing public
performances and the landlord, organizer or sponsor, facility owner, or
other person does not exercise control over the selection of works
performed.
SEC. 8. CONFORMING AMENDMENTS.
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.''.
SEC. 9. CONSTRUCTION OF ACT.
Except as provided in section 504(d)(1) of title 17, United States
Code, as added by section 3(a) of this Act, nothing in this Act shall
be construed to relieve any performing rights society (as defined in
section 101 of title 17, United States Code) of any obligation under
any consent decree, State statute, or other court order governing its
operation, as such decree or order is in effect on the date of the
enactment of this Act, as it may be amended after such date, or as it
may be issued or agreed to after such date.
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