Fairness in Musical Licensing Act of 1994

Summary: Fairness in Musical Licensing Act of 1994 - Revises Federal copyright law to provide that a communication of a transmission embodying a performance or display of a work by electronic players or by the public reception of a broadcast, cable, or satellite transmission on a receiving apparatus in any commercial establishment, the performance of which is incidental to the main purpose of such establishment, is not an infringement of copyright unless:  (1) an admission charge is made to see or hear the transmission; or (2) any other public performance or display of the works implicated in such transmission are not properly licensed. 
Specifies that, if a user of music 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 music in the performing rights society's repertory, either party shall be entitled to binding arbitration of such disagreement pursuant to the rules of the American Arbitration Association (and the arbitrator in such arbitration shall determine a fair and reasonable fee for the user's past or future performance of the music in such society's repertory). 
Sets forth provisions regarding:  (1) civil actions for infringements involving nondramatic musical work licensed by a performing rights society; (2) arbitrators' determinations of a fair and reasonable license fee; (3) online computer access to repertoires; and (4) actions that shall be referred to arbitration. 
Provides that, in any case in which a nondramatic musical work is licensed by a performing rights society, such society shall offer a per programming period license to any radio or television broadcaster on request.  Directs that such license be offered on terms and conditions that provide an economically and administratively viable alternative to blanket licenses.  Sets forth provisions regarding prices of such licenses. 
Directs that performing rights societies and other organizations authorized to license nondramatic musical works for public performances make available, free of charge, to licenses or those negotiating licenses, online computer access to its entire repertoire, including specified information. 
Requires the Antitrust Division of the Department of Justice to submit annual written reports to the Congress on acitivities of the Department relating to continuing supervision and enforcement of the American Society of Composers, Authors, and Publishers and Broadcast Music, Inc., consent decrees.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fairness in Musical Licensing Act of 
1994''.

SEC. 2. BUSINESS EXEMPTION.

    Section 110(5) of title 17, United States Code, is amended to read 
as follows:
            ``(5) communication of a transmission embodying a 
        performance or display of a work by electronic players, or by 
        the public reception of a broadcast, cable or satellite 
        transmission on a receiving apparatus, in any commercial 
        establishment, the performance of which is incidental to the 
        main purpose of the commercial establishment, unless--
                    ``(A) an admission charge is made to see or hear 
                the transmission; or
                    ``(B) any other public performance or display of 
                the works implicated in such transmission are not 
                properly licensed.''.

SEC. 3. BINDING ARBITRATION OF RATE DISPUTES INVOLVING PERFORMING 
              RIGHTS SOCIETIES; ACCESS TO REPERTOIRE.

    (a) In General.--Section 504 of title 17, United States Code, is 
amended by adding at the end thereof the following new subsection:
    ``(d) Performing Rights Societies; Binding Arbitration and 
Repertoire.--(1)(A) If a user of music 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 music in the performing rights society's 
repertory, either party shall be entitled to binding arbitration of 
such disagreement pursuant to the rules of the American Arbitration 
Association. The arbitrator in such binding arbitration shall determine 
a fair and reasonable fee for the user's past or future performance of 
the music in such society's repertory.
    ``(B) In any civil action for infringement of the right granted in 
section 106(4) involving a nondramatic musical work that is licensed by 
a performing rights society, where the defendant admits prior use of 
music licensed by the performing rights society but contests the amount 
of the license fee demanded for such use by such society, the dispute 
may, if requested by either party, be submitted to court annexed 
arbitration under section 652(e) of title 28. In such arbitration 
proceeding, the arbitrator shall determine the full and entire amount 
owed by the defendant to the performing rights society for all past use 
of music licensed by such society. Such amount shall not exceed what 
the arbitrator determines would have been a fair and reasonable license 
fee for performance of the music at issue, at the time such performance 
was made.
    ``(C) In any arbitration proceeding initiated under this section, 
the arbitrator may also determine a fair and reasonable license fee for 
performance by the music using part of the music licensed by the 
performing rights society for a period not to exceed 5 years after the 
date of the arbitrator's determination.
    ``(2) Performing rights societies and other organizations 
authorized to license nondramatic musical works for public performances 
shall make available, free of charge, online computer access to their 
respective repertoires. Such access shall include information 
regarding--
            ``(A) the title of the work;
            ``(B) the name, address, and telephone number of the author 
        and the copyright owner (if different);
            ``(C) the date the copyrighted work will enter the public 
        domain; and
            ``(D) the names of any artists known to have performed the 
        work.''.
    (b) Actions That Shall Be Referred to Arbitration.--Section 652 of 
title 28, United States Code, is amended by adding 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 nondramatic musical work that is licensed by a 
performing rights society, where the defendant admits prior use of 
music licensed by the performing rights society but contests the amount 
of the license fee demanded for such use by such society, the district 
court may, if requested by either party, refer the dispute to 
arbitration. Each district court shall establish procedures by local 
rule authorizing the use of arbitration under this subsection.''.

SEC. 4. 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) Period Licenses.--
            ``(1) In general.--In any case in which a nondramatic 
        musical work is licensed by a performing rights society, the 
        performing rights society shall offer a per programming period 
        license to any radio or television broadcaster that requests 
        such a license. Such license shall be offered on terms and 
        conditions that provide an economically and administratively 
        viable alternative to blanket licenses.
            ``(2) Price of period license.--(A) The total price of a 
        per programming period license described in paragraph (1) 
        shall--
                    ``(i) include separate components for incidental 
                and feature performances;
                    ``(ii) be no higher than the fee that would be 
                payable under a blanket license offered to broadcasters 
                in the same industry; and
                    ``(iii) be directly proportional to the 
                broadcaster's actual use of the society's repertoire.
            ``(B) The fee for incidental public performances shall 
        reflect the value of such uses to the broadcaster and the 
        relative value which the performing rights society assigns in 
        its distribution of royalties for such incidental public 
        performances.
            ``(C) Nondramatic musical compositions that have been 
        licensed directly or at the source, or whose performance 
        constitutes fair use, shall not be considered in calculating 
        any per programming period license fee under this 
        subsection.''.

SEC. 5. ACCESS TO REPERTOIRE.

    Section 504 of title 17, United States Code, is amended by adding 
at the end the following:
    ``(e) Computer Access to Musical Repertoire.--Performing rights 
societies and other organizations authorized to license nondramatic 
musical works for public performances shall make available, free of 
charge, to licenses or those negotiating licenses, online computer 
access to its entire repertoire. Such access shall include information 
regarding the title of the work, the name, address, and telephone 
number of the author and the copyright owner (if different), and the 
names of any artists known to have performed the work.''.

SEC. 6. ANNUAL REPORT.

    No later than March 1 of each year the Antitrust Division of the 
Department of Justice shall submit a written report to the Congress on 
the activities of the Department during the preceding calendar year 
relating to the Department's continuing supervision and enforcement of 
the American Society of Composers, Authors, and Publishers and the 
Broadcast Music, Inc. consent decrees. Such report shall include a 
description of all issues raised or complaints filed with the 
Department relating to the operations of performing rights societies, 
and a summary of the Department's actions or investigations undertaken 
by the Department in response.

SEC. 7. CONFORMING AMENDMENT.

    Section 101 of title 17, United States Code, is amended by 
inserting after the undesignated paragraph relating to the definition 
of ``perform'' the following new paragraph:
            ``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.''.