109TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 1st Session 109–64

TECHNICAL CORRECTIONS TO TITLE 17, UNITED STATES 

CODE, RELATING TO COPYRIGHT ROYALTY JUDGES

APRIL 28, 2005.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany H.R. 1036] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 1036) to amend title 17, United States Code, to make technical corrections relating to copyright royalty judges, having considered the same, reports favorably thereon without amendment and 

recommends that the bill do pass.

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 1

Background and Need for the Legislation ............................................................. 2

Hearings ................................................................................................................... 3

Committee Consideration ........................................................................................ 3

Vote of the Committee ............................................................................................. 3

Committee Oversight Findings ............................................................................... 3

New Budget Authority and Tax Expenditures ...................................................... 3

Congressional Budget Office Cost Estimate .......................................................... 3

Performance Goals and Objectives ......................................................................... 4

Constitutional Authority Statement ...................................................................... 4

Section-by-Section Analysis and Discussion .......................................................... 4

Changes in Existing Law Made by the Bill, as Reported ..................................... 6

Markup Transcript .................................................................................................. 17

PURPOSE AND SUMMARY

H.R. 1036, an act to amend title 17, United States Code, is intended to make technical corrections to the copyright royalty judges 

program, which was authorized by Public Law 108–419, and is 

scheduled to become, effective on May 31, 2005. These corrections 

would allow the Register of Copyrights, copyright owners, and comVerDate jul 14 2003 00:15 Apr 29, 2005 Jkt 039006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6601 E:\HR\OC\HR064.XXX HR064
2

1The two laws are the ‘‘Copyright Royalty and Distribution Reform Act of 2004’’ (Public Law 

No. 108–419) and the ‘‘Satellite Home Viewer Extension and Reauthorization Act of 2004’’ (title 

IX of division J of Public Law 108–447). 2For a more comprehensive discussion of the perceived deficiencies of the CARP system and 

the need for reform, see H. Rep. No. 108–408, (2004), which accompanied H.R. 1417, the ‘‘Copyright Royalty and Distribution Reform Act of 2003.’’

mercial users of compulsory licenses to benefit from a more precise 

delineation of the respective roles of the U.S. Copyright Office and 

the newly established Copyright Royalty Judges in proceedings 

that involve the determination of copyright royalty rates and royalty distributions. H.R. 1036 will eliminate unintended ambiguities, 

thereby ensuring the transitional and permanent provisions that 

relate to the new program operate efficiently, saving both time and 

money for future participants in copyright royalty determination 

and distribution proceedings. 

BACKGROUND AND NEED FOR THE LEGISLATION

Last year, Congress enacted two laws 1 that substantially altered 

the administrative structure within the Library of Congress, that 

determined copyright royalty rates and distributions under the various compulsory licenses authorized under title 17, United States 

Code. These laws eliminated the authority of the Librarian of Congress to empanel Copyright Arbitration Royalty Panels, or 

‘‘CARPs,’’ 2 whenever private negotiations among affected stakeholders failed to establish copyright royalty rates or to determine 

the proper distribution of royalties under the various compulsory licenses. 

The new legislation requires the Librarian of Congress, after consultation with the Register of Copyrights, to appoint three full-time 

Copyright Royalty Judges, or (‘‘CRJs’’), and to appoint one of the 

three as the Chief Copyright Royalty Judge. Qualifications for the 

new CRJ’s are specified within Public Law 108–419. 

Once established, the three CRJs are authorized to: (1) determine and adjust the terms and rates of royalty payments for statutory licenses; (2) adjust statutory royalty rates for secondary transmissions by cable systems to reflect inflation, the average rates 

charged to cable subscribers for such transmissions, and Federal 

Communications Commission (FCC) regulations; (3) authorize, and 

make determinations regarding, distribution of royalty fees collected; (4) accept or reject royalty claims on the basis of timeliness 

or failure to establish a basis for the claim; (5) accept or reject rate 

adjustment petitions or petitions to participate; (6) determine 

whether a device is a digital audio recording device or a digital 

audio interface device subject to royalty payments; and (7) adopt an 

agreement on terms, rates, or distribution of royalties that are 

agreed to by some or all participants in a proceeding if the participants do not object. 

In addition to the two aforementioned laws, the 108th Congress 

also adopted S. Con. Res. 145, which directed the Clerk of the 

House of Representatives to make corrections in the enrollment of 

H.R. 1417, as previously passed by the U.S. Senate, before presenting the bill to the President for signature. Notwithstanding the 

corrections included in S. Con. Res. 145, the Committee believes 

further improvements are necessary. The Committee believes the 

CRJ’s and affected stakeholders will benefit from the enactment of 

3

H.R. 1036, which includes further typographical, grammatical, and 

technical corrections that will clarify the intent of the drafters and 

improve the operation of the new Copyright Royalty Judges program. 

HEARINGS

No hearings were held on H.R. 1036. 

COMMITTEE CONSIDERATION

On March 3, 2005, the Subcommittee on Courts, the Internet, 

and Intellectual Property met in open session and ordered favorably reported the bill, H.R. 1036, by a voice vote, a quorum being 

present. On March 9, 2005, the Committee met in open session and 

ordered favorably reported the bill, H.R. 1036, without amendment 

by a voice vote, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of Rule XIII of the Rules of the 

House of Representatives, the Committee notes that there were no 

recorded votes during the committee consideration of H.R. 1036. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of Rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of Rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of Rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of Rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 1036, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, March 14, 2005. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1036, a bill to amend title 

17, United States Code, to make technical corrections relating to 

copyright royalty judges. 

4

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Melissa E. Zimmerman, 

who can be reached at 226–2860. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN.

Enclosure

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 1036—A bill to amend title 17, United States Code, to make 

technical. corrections relating to copyright royalty judges. 

H.R. 1036 would make technical corrections to the Copyright 

Royalty and Distribution Reform Act of 2004 and other aspects of 

copyright law. CBO estimates that implementing the bill would 

have no effect on spending subject to appropriation. Enacting the 

bill would not affect direct spending or revenues. 

H.R. 1036 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of State, local, or tribal governments. 

The CBO staff contact for this estimate is Melissa E. Zimmerman, who can be reached at 226–2860. The estimate was approved 

by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

H.R. 1036 does not authorize funding. Therefore, clause 3(c)(4) of 

Rule XIII of the Rules of the House of Representatives is inapplicable. These corrections would allow the Register of Copyrights, 

copyright owners, and commercial users of compulsory licenses to 

benefit from a more accurate delineation of the respective roles of 

the U.S. Copyright Office and the newly established Copyright Royalty Judges in proceedings that involve the determination of copyright royalty rates and royalty distributions. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8, clause 8 of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

SECTION 1. AMENDMENTS TO CHAPTER 8 OF TITLE 17,

UNITED STATES CODE. 

Section 1 includes principally typographical, grammatical, stylistic and conforming changes, which are needed to eliminate unintended ambiguities in sections 801, 802, 803 and 804 of title 17, 

United States Code. These sections relate, respectively, to the appointment and functions of CRJs, staff of CRJs, proceedings involving CRJs, and the actual manner for instituting proceedings involving CRJs. 

Most of the changes merely correct spelling or punctuation errors, correct cross-references, eliminate unnecessary language, or 

conform the statute to editorial style/conventions used in the law 

5

3The Administrative Procedure Act or ‘‘APA’’ is contained in chapter 5 of title 5, United States 

Code. 4See 17 U.S.C. 802 (c) (2000). 

of copyright. Therefore, this discussion is limited to an explanation 

of the technical changes in H.R. 1036 that are most likely to require elucidation. 

H.R. 1036 contains two amendments to section 803(a)(1) of title 

17, United States Code, which concern proceedings in general. The 

first is intended to restore noncontroversial language that was deleted from H.R. 1417 before enactment. This language makes clear 

that CRJs are expected to act in accordance with provisions of the 

Administrative Procedure Act 3 unless provisions of title 17 require 

otherwise. 

The second amendment to section 803(a)(1) of title 17, United 

States Code, clarifies that prior determinations and interpretations 

of copyright arbitration royalty panels, or ‘‘CARPs,’’ are considered 

to be part of the body of past statutory license decisions that CRJs 

shall consider precedential. This provision is limited to only those 

determinations and interpretations that are not inconsistent with 

subsequent determinations of the Librarian of Congress or the Register of Copyrights. It should be noted that this clarification is not 

intended to elevate panel determinations and interpretations to a 

precedential level greater than that accorded under prior law, 

which was applied to panels whose decisions were reviewed by the 

Librarian of Congress.4

H.R. 1036 contains several amendments to 803(b)(6)(C)(i) of title 

17, United States Code, which relate to discovery procedures in 

Copyright Royalty Judge proceedings. One amendment clarifies 

that CRJs have authority to specify the dates when participants in 

a proceeding are required to submit both written direct statements 

and written rebuttal statements. Another clarification is intended 

to ensure the statute is construed to require only written direct 

statements (and not written rebuttal statements) to be filed not 

earlier than 4 months and not later than 5 months after the termination of the voluntary negotiation period. 

Finally, an amendment to 804(b)(3) of title 17, United States 

Code, corrects the ‘‘triggering’’ date for instituting section 112 and 

114 proceedings by clarifying that the ‘‘date of enactment’’ of the 

Copyright Royalty and Distribution Reform Act of 2004 was the 

date intended by the drafters. 

SECTION 2. ADDITIONAL TECHNICAL AMENDMENTS. 

Section 2 includes necessary technical and conforming changes to 

sections 111, 114, 115, 118, 119, and 1007 of title 17, United States 

Code. 

The principal clarifying and conforming changes in Section 2 relate to the relationship between the Copyright Royalty Judges and 

the Librarian of Congress, who share responsibility for functions 

that relate to the authority to distribute royalties and the actual 

distribution or disbursing of such royalties. 

H.R. 1036 provides clearly that only the CRJs have authority to 

adjudicate disputes, to determine if a controversy exists, to authorize the withholding of any funds ‘‘in controversy’’ and to authorize 

the distribution of any royalties ‘‘not in controversy’’ by the Librarian of Congress. As a corollary, H.R. 1036 clarifies that the LibrarVerDate jul 14 2003 00:15 Apr 29, 2005 Jkt 039006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6601 E:\HR\OC\HR064.XXX HR064
6

ian of Congress has the responsibility to distribute royalties pursuant to a lawful order from the Copyright Royalty Judges. 

The enactment of H.R. 1036, which precisely delineates the respective authorities shared by the CRJs and the Librarian of Congress, will help to ensure the more effective implementation of the 

‘‘Copyright Royalty and Distribution Reform Act of 2004.’’ Finally, 

H.R. 1036 includes a provision that corrects the effective date and 

transition provisions of Public Law 108–419 to make clear the Librarian of Congress’ authority to terminate any proceeding commenced before the effective date of the legislation. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman):

TITLE 17, UNITED STATES CODE

[Note: The Copyright Royalty and Distribution Reform Act of 2004 

(Public Law 108–419) amends certain provisions of title 17, 

United States Code which have been carried out here. Section 6 

of such Public Law provides that the amendments generally take 

effect 6 months after November 30, 2004.] 

CHAPTER 1—SUBJECT MATTER AND SCOPE OF 

COPYRIGHT 

* * * * * * *

§ 111. Limitations on exclusive rights: Secondary transmissions 

(a) * * *

* * * * * * *

(d) STATUTORY LICENSE FOR SECONDARY TRANSMISSIONS BY

CABLE SYSTEMS.— (1) * * *

(2) The Register of Copyrights shall receive all fees deposited under this section and, after deducting the reasonable 

costs incurred by the Copyright Office under this section, shall 

deposit the balance in the Treasury of the United States, in 

such manner as the Secretary of the Treasury directs. All 

funds held by the Secretary of the Treasury shall be invested 

in interest-bearing United States securities for later distribution with interest by the Librarian of Congress øin the event 

no controversy over distribution exists, or by the Copyright 

Royalty Judges. in the event a controversy over such distribution exists.¿ upon authorization by the Copyright Royalty 

Judges.

* * * * * * *

(4) The royalty fees thus deposited shall be distributed in 

accordance with the following procedures: 

(A) * * *

7

(B) After the first day of August of each year, the 

Copyright Royalty Judges shall determine whether there 

exists a controversy concerning the distribution of royalty 

fees. øIf the Copyright Royalty Judges determine that no 

such controversy exists, the Librarian shall, after deducting reasonable administrative costs under this section, distribute such fees to the copyright owners entitled to such 

fees, or to their designated agents.¿ If the Copyright Royalty Judges determine that no such controversy exists, the 

Copyright Royalty Judges shall authorize the Librarian of 

Congress to proceed to distribute such fees to the copyright 

owners entitled to receive them, or to their designated 

agents, subject to the deduction by the Librarian of reasonable administrative costs under this section. If the Copyright Royalty Judges øfinds¿ find the existence of a controversy, the Copyright Royalty Judges shall, pursuant to 

chapter 8 of this title, conduct a proceeding to determine 

the distribution of royalty fees. 

ø(C) During the pendency of any proceeding under this 

subsection, the Copyright Royalty Judges shall withhold 

from distribution an amount sufficient to satisfy all claims 

with respect to which a controversy exists, but shall have 

discretion to proceed to distribute any amounts that are 

not in controversy.¿

(C) During the pendency of any proceeding under this 

subsection, the Copyright Royalty Judges shall have the 

discretion to authorize the Librarian of Congress to proceed 

to distribute any amounts that are not in controversy.

* * * * * * *

§ 114. Scope of exclusive rights in sound recordings 

(a) * * *

* * * * * * *

(f) LICENSES FOR CERTAIN NONEXEMPT TRANSMISSIONS.—

(1)(A) Proceedings under chapter 8 shall determine reasonable rates and terms of royalty payments for subscription 

transmissions by preexisting subscription services and transmissions by preexisting satellite digital audio radio services 

specified by subsection (d)(2) during the 5-year period beginning on January 1 of the second year following the year in 

which the proceedings are to be commenced, øexcept where a 

different transitional period is provided under section 6(b)(3) of 

the Copyright Royalty and Distribution Reform Act of 2004 or 

such other period.¿, except in the case of a different transitional 

period provided under section 6(b)(3) of the Copyright Royalty 

and Distribution Reform Act of 2004, or such other period as 

the parties may agree. Such terms and rates shall distinguish 

among the different types of digital audio transmission services 

then in operation. Any copyright owners of sound recordings, 

preexisting subscription services, or preexisting satellite digital 

audio radio services may submit to the Copyright Royalty 

Judges licenses covering such subscription transmissions with 

8

respect to such sound recordings. The parties to each proceeding shall bear their own costs. 

* * * * * * *

(2)(A) Proceedings under chapter 8 shall determine reasonable rates and terms of royalty payments for subscription 

transmissions by eligible nonsubscription transmission services 

and transmissions by new subscription services specified by 

subsection (d)(2) during the 5-year period beginning on January 1 of the second year following the year in which the proceedings are to be commenced, øexcept where a different transitional period is provided¿ except in the case of a different 

transitional period provided under section 6(b)(3) of the Copyright Royalty and Distribution Reform Act of 2004, or such 

other period as the parties may agree. Such rates and terms 

shall distinguish among the different types of eligible nonsubscription transmission services and new subscription services then in operation and shall include a minimum fee for 

each such type of service. Any copyright owners of sound recordings or any entities performing sound recordings affected 

by this paragraph may submit to the Copyright Royalty Judges 

licenses covering such eligible nonsubscription transmissions 

and new subscription services with respect to such sound recordings. The parties to each proceeding shall bear their own 

costs. 

* * * * * * *

§ 115. Scope of exclusive rights in nondramatic musical 

works: Compulsory license for making and distributing phonorecords 

In the case of nondramatic musical works, the exclusive rights 

provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section. 

(a) * * *

* * * * * * *

(c) ROYALTY PAYABLE UNDER COMPULSORY LICENSE.—

(1) * * *

* * * * * * *

(3)(A) * * *

(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 øsubparagraphs (B) through 

9

(F)¿ this subparagraph and subparagraphs (C) through (E) and 

chapter 8 of this title shall next be determined. 

* * * * * * *

(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 and 

Copyright Royalty Judges. Subject to clause (ii), the royalty 

rates determined pursuant to subparagraph ø(C) or (D)¿ (C) 

and (D) shall be given effect as to digital phonorecord deliveries 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 paragraphs (1) 

and (3) of section 106 or commits another person to grant a license in that musical work under paragraphs (1) and (3) of section 106, to a person desiring to fix in a tangible medium of 

expression a sound recording embodying the musical 

work.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 ø(C) or 

(D)¿ (C) and (D) 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 ø(C) or (D)¿ (C) and (D)

for the number of musical works within the scope of the 

contract as of June 22, 1995; and 

* * * * * * *

§ 118. Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting 

(a) * * *

(b) Notwithstanding any provision of the antitrust laws, any 

owners of copyright in published nondramatic musical works and 

published pictorial, graphic, and sculptural works and any public 

broadcasting entities, respectively, may negotiate and agree upon 

the terms and rates of royalty payments and the proportionate division of fees paid among various copyright owners, and may designate common agents to negotiate, agree to, pay, or receive payments. 

(1) * * *

* * * * * * *

(3) Voluntary negotiation proceedings initiated pursuant to 

a petition filed under section 804(a) for the purpose of determining a schedule of terms and rates of royalty payments by 

public broadcasting entities to øcopyright owners in works¿

10

owners of copyright in works specified by this subsection and 

the proportionate division of fees paid among various copyright 

owners shall cover the 5-year period beginning on January 1 

of the second year following the year in which the petition is 

filed. The parties to each negotiation proceeding shall bear 

their own costs. 

(c) Subject to the terms of any voluntary license agreements 

that have been negotiated as provided by subsection (b)(2) or (3), 

a public broadcasting entity may, upon compliance with the provisions of this section, including the rates and terms established by 

the øCopyright Royalty Judges under subsection (b)(4), to the extent that they were accepted by the Librarian of Congress¿ Copyright Royalty Judges under subsection (b)(4), engage in the following activities with respect to published nondramatic musical 

works and published pictorial, graphic, and sculptural works: 

(1) * * *

* * * * * * *

§ 119. Limitations on exclusive rights: Secondary transmissions of superstations and network stations for 

private home viewing 

(a) * * *

* * * * * * *

(b) STATUTORY LICENSE FOR SECONDARY TRANSMISSIONS FOR

PRIVATE HOME VIEWING .— (1) * * *

* * * * * * *

(4) PROCEDURES FOR DISTRIBUTION.—The royalty fees deposited under paragraph (2) shall be distributed in accordance 

with the following procedures: 

(A) * * *

(B) DETERMINATION OF CONTROVERSY; DISTRIBUTIONS.—After the first day of August of each year, the Librarian of Congress shall determine whether there exists 

a controversy concerning the distribution of royalty fees. 

øIf the Librarian of Congress determines that no such controversy exists, the Librarian of Congress shall, after deducting reasonable administrative costs under this paragraph, distribute such fees to the copyright owners entitled 

to receive them, or to their designated agents.¿ If the 

Copyright Royalty Judges determine that no such controversy exists, the Copyright Royalty Judges shall authorize the Librarian of Congress to proceed to distribute such 

fees to the copyright owners entitled to receive them, or to 

their designated agents, subject to the deduction by the Librarian of reasonable administrative costs under this section. If the Librarian of Congress finds the existence of a 

controversy, the Librarian of Congress shall, pursuant to 

chapter 8 of this title, convene a copyright arbitration royalty panel to determine the distribution of royalty fees. 

ø(C) WITHHOLDING OF FEES DURING CONTROVERSY.—

During the pendency of any proceeding under this subsection, the Librarian of Congress shall withhold from disVerDate jul 14 2003 00:15 Apr 29, 2005 Jkt 039006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\HR\OC\HR064.XXX HR064
11

tribution an amount sufficient to satisfy all claims with respect to which a controversy exists, but shall have discretion to proceed to distribute any amounts that are not in 

controversy.¿

(C) WITHHOLDING OF FEES DURING CONTROVERSY.— During the pendency of any proceeding under this subsection, the Copyright Royalty Judges shall have the discretion to authorize the Librarian of Congress to proceed to 

distribute any amounts that are not in controversy.

* * * * * * *

CHAPTER 8—COPYRIGHT ARBITRATION ROYALTY 

PANELS 

* * * * * * *

§ 801. Copyright Royalty Judges; appointment and functions 

(a) * * *

(b) FUNCTIONS.—Subject to the provisions of this chapter, the 

functions of the Copyright Royalty Judges shall be as follows: 

(1) To make determinations and adjustments of reasonable 

terms and rates of royalty payments as provided in sections 

112(e), 114, 115, 116, 118, ø119 and 1004¿ 119, and 1004. The 

rates applicable under sections 114(f)(1)(B), 115, and 116 shall 

be calculated to achieve the following objectives: 

(A) * * *

* * * * * * *

(f) INDEPENDENCE OF COPYRIGHT ROYALTY JUDGE.— (1) IN MAKING DETERMINATIONS.— (A) IN GENERAL.—(i) Subject to øclause (ii) of this subparagraph and subparagraph (B)¿ subparagraph (B) and 

clause (ii) of this subparagraph, the Copyright Royalty 

Judges shall have full independence in making determinations concerning adjustments and determinations of copyright royalty rates and terms, the distribution of copyright 

royalties, the acceptance or rejection of royalty claims, rate 

adjustment petitions, and petitions to participate, and in 

issuing other rulings under this title, except that the Copyright Royalty Judges may consult with the Register of 

Copyrights on any matter other than a question of fact. 

(ii) øA Copyright Royalty Judge or Judges, or, by motion to the Copyright Royalty Judge or Judges,¿ One or 

more Copyright Royalty Judges or, by motion to one or 

more Copyright Royalty Judges, any participant in a proceeding may request an interpretation by the Register of 

Copyrights concerning any material question of substantive law ø(not including¿ (other than questions of procedure before the Copyright Royalty Judges, the ultimate 

adjustments and determinations of copyright royalty rates 

and terms, the ultimate distribution of copyright royalties, 

or the acceptance or rejection of royalty claims, rate adjustment petitions, or petitions to participate) concerning 

an interpretation or construction of those provisions of this 

title that are the subject of the proceeding. Any such request for a written interpretation by the Register of CopyVerDate jul 14 2003 00:15 Apr 29, 2005 Jkt 039006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6601 E:\HR\OC\HR064.XXX HR064
12

rights shall be on the record. Reasonable provision shall be 

made for comment by the participants in the proceeding on 

the material question of substantive law, in such a way as 

to minimize duplication and delay. Except as provided in 

subparagraph (B), the Register of Copyrights shall deliver 

to the Copyright Royalty Judges a response within 14 days 

after the Register of øCopyrigts¿ Copyrights receives all of 

the briefs or comments of the participants. Such decision 

shall be in writing and shall be included by the Copyright 

Royalty Judges in the record that accompanies their final 

determination. If such a decision is timely delivered to the 

Copyright Royalty Judges, the Copyright Royalty Judges 

shall apply the legal interpretation embodied in the response of the Register of Copyrights in resolving material 

questions of substantive law. 

* * * * * * *

(D) REVIEW OF LEGAL CONCLUSIONS BY THE REGISTER

OF COPYRIGHTS.—The Register of Copyrights may review 

for legal error the resolution by the Copyright Royalty 

Judges of a material question of substantive law under 

this title that underlies or is contained in a final determination of the Copyright Royalty Judges. If the Register 

of Copyrights concludes, after taking into consideration the 

views of the participants in the proceeding, that any resolution reached by the Copyright Royalty Judges was in 

material error, the Register of Copyrights shall issue a 

written decision correcting such legal error, which shall be 

made part of the record of the proceeding. The Register of 

Copyrights shall issue such written decision not later than 

60 days after the date on which the final determination by 

the Copyright Royalty Judges is issued. Additionally, the 

Register of Copyrights shall cause to be published in the 

Federal Register such written decision, together with a 

specific identification of the legal conclusion of the Copyright Royalty Judges that is determined to be erroneous. 

As to conclusions of substantive law involving an interpretation of the statutory provisions of this title, the decision 

of the Register of Copyrights shall be binding as precedent 

upon the Copyright Royalty Judges in subsequent proceedings under this chapter. When a decision has been 

rendered pursuant to this subparagraph, the Register of 

Copyrights may, on the basis of and in accordance with 

such decision, intervene as of right in any appeal of a final 

determination of the Copyright Royalty Judges pursuant 

to section 803(d) in the United States Court of Appeals for 

the District of Columbia Circuit. If, prior to intervening in 

such an appeal, the Register of Copyrights gives notification to, and undertakes to consult with, the Attorney General with respect to such intervention, and the Attorney 

General fails, within a reasonable period after receiving 

such notification, to intervene in such appeal, the Register 

of Copyrights may intervene in such appeal in his or her 

own name by any attorney designated by the Register of 

Copyrights for such purpose. Intervention by the Register 

of Copyrights in his or her own name shall not preclude 

13

the Attorney General from intervening on behalf of the 

United States in such an appeal as may be otherwise provided or required by law. 

* * * * * * *

§ 803. Proceedings of Copyright Royalty Judges 

(a) PROCEEDINGS.—

(1) IN GENERAL.—øThe Copyright¿ The Copyright Royalty 

Judges shall act in accordance with this title, and to the extent 

not inconsistent with this title, in accordance with subchapter 

II of chapter 5 of title 5, in carrying out the purposes set forth 

in section 801. The Copyright Royalty Judges shall act in accordance with regulations issued by the Copyright Royalty 

Judges and the Librarian of Congress, and on the basis of a 

written record, prior determinations and interpretations of the 

Copyright Royalty Tribunal, Librarian of Congress, the Register of Copyrights, copyright arbitration royalty panels (to the 

extent those determinations are not inconsistent with a decision 

of the Librarian of Congress or the Register of Copyrights), and 

the Copyright Royalty Judges (to the extent those determinations are not inconsistent with a decision of the Register of 

Copyrights that was timely delivered to the Copyright Royalty 

Judges pursuant to section 802(f)(1) (A) or (B), or with a decision of the Register of Copyrights pursuant to section 

802(f)(1)(D)), under this chapter, and decisions of the court of 

appeals under this chapter before, on, or after the effective 

date of the Copyright Royalty and Distribution Reform Act of 

2004. 

* * * * * * *

(b) PROCEDURES.—

(1) INITIATION.—

(A) CALL FOR PETITIONS TO PARTICIPATE.—(i) The 

Copyright Royalty Judges shall cause to be published in 

the Federal Register notice of commencement of proceedings under this chapter, calling for the filing of petitions to participate in a proceeding under this chapter for 

the purpose of making the relevant determination under 

section 111, 112, 114, 115, 116, 118, 119, 1004, or 1007, as 

the case may be—

(I) * * *

* * * * * * *

(V) by no later than January 5 of a year specified 

in any other provision of section 804(b) for the filing 

of petitions for the commencement of proceedings, if a 

petition has not been filed by that date, except that 

øin the case of¿ the publication of notice requirement 

shall not apply in the case of proceedings under section 

111 that are scheduled to commence in 2005ø, such 

notice may not be published¿.. 

* * * * * * *

(6) REGULATIONS.—

14

(A) * * *

* * * * * * *

(C) REQUIREMENTS.—Regulations issued under subparagraph (A) shall include the following: 

(i) The written direct statements and written rebuttal statements of all participants in a proceeding 

under paragraph (2) shall be filed by a date specified 

by the Copyright Royalty Judges, øwhich may¿ which, 

in the case of written direct statements, may be not 

earlier than 4 months, and not later than 5 months, 

after the end of the voluntary negotiation period under 

paragraph (3). Notwithstanding the preceding sentence, the Copyright Royalty Judges may allow a participant in a proceeding to file an amended written direct statement based on new information received during the discovery process, within 15 days after the end 

of the discovery period specified in øclause (iii)¿ clause 

(iv). 

* * * * * * *

(c) DETERMINATION OF COPYRIGHT ROYALTY JUDGES.—

(1) * * *

(2) REHEARINGS.—

(A) * * *

(B) TIMING FOR FILING MOTION.—Any motion for a rehearing under subparagraph (A) may only be filed within 

15 days after the date on which the Copyright Royalty 

Judges deliver to the participants in the proceeding their 

initial determination øconcerning rates and terms¿. 

* * * * * * *

(7) LATE PAYMENT.—A determination øof Copyright¿ of the 

Copyright Royalty Judges may include terms with respect to 

late payment, but in no way shall such terms prevent the copyright holder from asserting other rights or remedies provided 

under this title. 

(d) JUDICIAL REVIEW.— (1) * * *

(2) EFFECT OF RATES.— (A) * * *

* * * * * * *

(C) OBLIGATION TO MAKE PAYMENTS.—

(i) The pendency of an appeal under this subsection shall not relieve persons obligated to make royalty payments under section 111, 112, 114, 115, 116, 

118, 119, or 1003, who would be affected by the determination on appeal, from—

(I) providing the østatements of account and 

any report of use¿ applicable statements of account and reports of use; and 

* * * * * * *

§ 804. Institution of proceedings 

(a) * * *

15

(b) TIMING OF PROCEEDINGS.—

(1) SECTION 111 PROCEEDINGS.—(A) * * *

(B) In order to initiate proceedings under section 801(b)(2) 

concerning the adjustment of royalty rates under section 111 

to which subparagraph (B) or (C) of section 801(b)(2) applies, 

within 12 months after an event described in either of those 

subsections, any owner or user of a copyrighted work whose 

royalty rates are specified by section 111, or by a rate established under this chapter before or after the enactment of the 

Copyright Royalty and Distribution Reform Act of 2004, may 

file a petition with the Copyright Royalty Judges declaring 

that the petitioner requests an adjustment of the rate. The 

Copyright Royalty Judges shall then proceed as set forth in 

subsection (a) of this section. Any change in royalty rates made 

under this chapter pursuant to this subparagraph may be reconsidered in the year 2005, and each fifth calendar year 

thereafter, in accordance with the provisions in section 

ø801(b)(3) (B) or (C)¿ 801(b)(2)(B) or (C), as the case may be. 

A petition for adjustment of rates established by section 

111(d)(1)(B) as a result of a change øis¿ in the rules and regulations of the Federal Communications Commission shall set 

forth the change on which the petition is based. 

* * * * * * *

(3) SECTION 114 AND CORRESPONDING 112 PROCEEDINGS.—

(A) FOR ELIGIBLE NONSUBSCRIPTION SERVICES AND NEW

SUBSCRIPTION SERVICES.—Proceedings under this chapter 

shall be commenced as soon as practicable after the øeffective date¿ date of enactment of the Copyright Royalty and 

Distribution Reform Act of 2004 to determine reasonable 

terms and rates of royalty payments under sections 114 

and 112 for the activities of eligible nonsubscription transmission services and new subscription services, to be effective for the period beginning on January 1, 2006, and ending on December 31, 2010. Such proceedings shall next be 

commenced in January 2009 to determine reasonable 

terms and rates of royalty payments, to become effective 

on January 1, 2011. Thereafter, such proceedings shall be 

repeated in each subsequent fifth calendar year. 

* * * * * * *

(C)(i) * * *

(ii) Not later than 30 days after a petition to determine rates and terms for a new type of service øthat¿ is 

filed by any copyright owner of sound recordings, or such 

new type of service, indicating that such new type of service is or is about to become operational, the Copyright Royalty Judges shall issue a notice for a proceeding to determine rates and terms for such service. 

(iii) The proceeding shall follow the schedule set forth 

in øsuch¿ subsections (b), (c), and (d) of section 803, except 

that—

(I) * * *

* * * * * * *

16

CHAPTER 10—DIGITAL AUDIO RECORDING DEVICES 

AND MEDIA 

SUBCHAPTER A—DEFINITIONS 

* * * * * * *

§ 1007. Procedures for distributing royalty payments 

(a) * * *

(b) DISTRIBUTION OF PAYMENTS IN THE ABSENCE OF A DIS- PUTE.—After the period established for the filing of claims under 

subsection (a), in each year, the Copyright Royalty Judges shall determine whether there exists a controversy concerning the distribution of royalty payments under section 1006(c). If the Copyright 

Royalty Judges determine that no such controversy exists, the øLibrarian of Congress¿ Copyright Royalty Judges shall, within 30 

days after such determination, authorize the distribution of the 

royalty payments as set forth in the agreements regarding the distribution of royalty payments entered into pursuant to subsection 

(a). The Librarian of Congress shall, before such royalty payments 

are distributed, deduct the reasonable administrative costs incurred øby the Librarian¿ under this section. 

(c) RESOLUTION OF DISPUTES.—If the Copyright Royalty Judges 

find the existence of a controversy, the Copyright Royalty Judges 

shall, pursuant to chapter 8 of this title, conduct a proceeding to 

determine the distribution of royalty payments. During the pendency of such a proceeding, the Copyright Royalty Judges shall withhold from distribution an amount sufficient to satisfy all claims 

with respect to which a controversy exists, but shall, to the extent 

feasible, authorize the distribution of any amounts that are not in 

controversy. The Librarian of Congress shall, before such royalty 

payments are distributed, deduct the reasonable administrative 

costs incurred øby the Librarian¿ under this section. 

* * * * * * *

SECTION 6 OF THE COPYRIGHT ROYALTY AND 

DISTRIBUTION REFORM ACT OF 2004

SEC. 6. EFFECTIVE DATE AND TRANSITION PROVISIONS. 

(a) * * *

(b) TRANSITION PROVISIONS.—

(1) IN GENERAL.—Subject to paragraphs (2) and (3), the 

amendments made by this Act shall not affect any proceedings 

commenced, petitions filed, or voluntary agreements entered 

into before the effective date provided in subsection (a) under 

the provisions of title 17, United States Code, as amended by 

this Act, and pending on such effective date. Such proceedings 

shall continue, determinations made in such proceedings, and 

appeals taken therefrom, as if this Act had not been enacted, 

and shall continue in effect until modified under title 17, 

United States Code, as amended by this Act. Such petitions 

filed and voluntary agreements entered into shall remain in effect as if this Act had not been enacted. For purposes of this 

paragraph, the Librarian of Congress may determine whether 

a proceeding has commenced. The Librarian of Congress may 

17

terminate any proceeding øcommenced before the date of enactment of this Act¿ commenced before the effective date provided in subsection (a) pursuant to chapter 8 of title 17, United 

States Code, and any proceeding so terminated shall become 

null and void. In such cases, the Copyright Royalty Judges 

may initiate a new proceeding in accordance with regulations 

adopted pursuant to section 803(b)(6) of title 17, United States 

Code. 

* * * * * * *

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, MARCH 9, 2005

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:00 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will be in order. A 

working quorum is present comprised entirely of Members of the 

majority party. So rather than doing a ratification of minority Committee assignments, since there is no one here to make a motion 

to do that, we will now go to the next item on the agenda which 

is the adoption of S. 167, the ‘‘Family Entertainment and Copyright 

Act of 2005,’’ and the Chair recognizes the gentlemen from Texas, 

Mr. Smith, the Chairman of the Subcommittee on Courts, the 

Internet, and Intellectual Property for a motion. 

Mr. SMITH. Mr. Chairman, I ask unanimous consent that we consider the following bills en bloc: S. 167, H.R. 683, H.R. 1036, H.R. 

1037, H.R. 1038. 

Chairman SENSENBRENNER. How about House Concurrent Resolution——

Mr. SMITH. It’s my understanding, Chairman, that needs to be 

considered separately. 

Chairman SENSENBRENNER. Okay. Without objection, the 5 bills 

mentioned by the gentleman from Texas will be considered en bloc, 

and the Chair recognizes the gentleman from Texas to explain 

them. 

Mr. SMITH. I’ll try to be brief, Mr. Chairman. The first bill, S. 

167 really consists of three previous bills that this Committee has 

approved and that passed the House last year. The first one is the 

Family Movie Act, and I think Members will recall that that simply 

gives parents the right to determine what their children see when 

they rent or buy a movie video. 

The second part of this particular bill is the Art Act which creates new penalties for those who camcord movies in public theaters 

and who willfully infringe copyright law by distributing copies of 

prereleased works, movies or otherwise. 

The Trademark Dilution Revision Act of 2005 simply, basically 

protects trademarks in a better way and also makes sure that people cannot infringe trademarks as easily as they do now. It also 

18

does a good job of trying to keep us out of court to determine some 

of the ambiguities of that particular subject. 

The two technical correction bills are just that, technical corrections of the Satellite Viewer, Home Viewer Movie Act, and the 

technical corrections, in addition to the satellite corrections are 

technical corrections of the CARP bill, which we approved last year 

and which passed the House. 

The last bill in the en bloc package, Mr. Chairman, is your bill, 

the Multidistrict Litigation Restoration Act of 2005, and I will yield 

to you to make any comments on that. 

And that would be the quick summary of the five bills en bloc. 

[The bill, H.R. 1036, follows:]

19

I

109TH CONGRESS

1ST SESSION H. R. 1036

To amend title 17, United States Code, to make technical corrections relating

to copyright royalty judges.

IN THE HOUSE OF REPRESENTATIVES

MARCH 2, 2005

Mr. SMITH of Texas (for himself and Mr. BERMAN) introduced the following

bill; which was referred to the Committee on the Judiciary

A BILL

To amend title 17, United States Code, to make technical

corrections relating to copyright royalty judges.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. AMENDMENTS TO CHAPTER 8 OF TITLE 17,

4 UNITED STATES CODE.

5 Chapter 8 of title 17, United States Code, is amended

6 as follows:

7 (1) Section 801(b)(1) is amended, in the matter

8 preceding subparagraph (A), by striking ‘‘119 and

9 1004’’ and inserting ‘‘119, and 1004’’.

10 (2) Section 802(f)(1)(A) is amended—


1036I.AAB
20

2

•HR 1036 IH

1 (A) in clause (i), by striking ‘‘clause (ii) of

2 this subparagraph and subparagraph (B)’’ and

3 inserting ‘‘subparagraph (B) and clause (ii) of

4 this subparagraph’’; and

5 (B) in clause (ii)—

6 (i) in the first sentence—

7 (I) by striking ‘‘A Copyright

8 Judge or Judges, or by motion to the

9 Copyright Judge or Judges,’’ and in10 serting ‘‘One or more Copyright Roy11 alty Judges or, by motion to one or

12 more Copyright Royalty Judges,’’; and

13 (II) by striking ‘‘(not including’’

14 and inserting ‘‘(other than’’;

15 (ii) in the third sentence, by inserting

16 a comma after ‘‘substantive law’’; and

17 (iii) in the fourth sentence, by striking

18 ‘‘Copyrigts’’ and inserting ‘‘Copyrights’’.

19 (3) Section 802(f)(1)(D) is amended by insert20 ing a comma after ‘‘undertakes to consult with’’.

21 (4) Section 803(a)(1) is amended—

22 (A) by striking ‘‘The Copyright’’ and in23 serting ‘‘The Copyright Royalty Judges shall

24 act in accordance with this title, and to the ex25 tent not inconsistent with this title, in accordVerDate jul 14 2003 00:15 Apr 29, 2005 Jkt 039006 PO 00000 Frm 00020 Fmt 6659 Sfmt 6601 E:\HR\OC\HR064.XXX HR064

1036I.AAC
21

3

•HR 1036 IH

1 ance with subchapter II of chapter 5 of title 5,

2 in carrying out the purposes set forth in section

3 801. The Copyright’’; and

4 (B) by inserting after ‘‘Congress, the Reg5 ister of Copyrights,’’ the following: ‘‘copyright

6 arbitration royalty panels (to the extent those

7 determinations are not inconsistent with a deci8 sion of the Librarian of Congress or the Reg9 ister of Copyrights),’’.

10 (5) Section 803(b) is amended—

11 (A) in paragraph (1)(A)(i)(V)—

12 (i) by striking ‘‘in the case of’’ and in13 serting ‘‘the publication of notice require14 ment shall not apply in the case of’’; and

15 (ii) by striking ‘‘, such notice may not

16 be published’’; and

17 (B) in paragraph (6)(C)(i)—

18 (i) in the first sentence, by inserting

19 ‘‘and written rebuttal statements’’ after

20 ‘‘written direct statements’’;

21 (ii) in the first sentence, by striking

22 ‘‘which may’’ and inserting ‘‘which, in the

23 case of written direct statements, may’’;

24 and


1036I.AAD
22

4

•HR 1036 IH

1 (iii) by striking ‘‘clause (iii)’’ and in2 serting ‘‘clause (iv)’’.

3 (6) Section 803(c)(2)(B) is amended by striking

4 ‘‘concerning rates and terms’’.

5 (7) Section 803(c)(7) is amended by striking

6 ‘‘of Copyright’’ and inserting ‘‘of the Copyright’’.

7 (8) Section 803(d)(2)(C)(i)(I) is amended by

8 striking ‘‘statements of account and any report of

9 use’’ and inserting ‘‘applicable statements of account

10 and reports of use’’.

11 (9) Section 804(b)(1)(B) is amended—

12 (A) by striking ‘‘801(b)(3)(B) or (C)’’ and

13 inserting ‘‘801(b)(2)(B) or (C)’’; and

14 (B) in the last sentence, by striking

15 ‘‘change is’’ and inserting ‘‘change in’’.

16 (10) Section 804(b)(3) is amended—

17 (A) in subparagraph (A), strike ‘‘effective

18 date’’ and insert ‘‘date of enactment’’; and

19 (B) in subparagraph (C)—

20 (i) in clause (ii), by striking ‘‘that is

21 filed’’ and inserting ‘‘is filed’’; and

22 (ii) in clause (iii), by striking ‘‘such

23 subsections (b)’’ and inserting ‘‘subsections

24 (b)’’.


1036I.AAE
23

5

•HR 1036 IH

1 SEC. 2. ADDITIONAL TECHNICAL AMENDMENTS.

2 (a) DISTRIBUTION OF ROYALTY FEES.—Section

3 111(d) of title 17, United States Code, is amended—

4 (1) in the second sentence of paragraph (2), by

5 striking all that follows ‘‘Librarian of Congress’’ and

6 inserting ‘‘upon authorization by the Copyright Roy7 alty Judges.’’;

8 (2) in paragraph (4)—

9 (A) in subparagraph (B)—

10 (i) by striking the second sentence

11 and inserting the following: ‘‘If the Copy12 right Royalty Judges determine that no

13 such controversy exists, the Copyright Roy14 alty Judges shall authorize the Librarian

15 of Congress to proceed to distribute such

16 fees to the copyright owners entitled to re17 ceive them, or to their designated agents,

18 subject to the deduction by the Librarian

19 of reasonable administrative costs under

20 this section.’’; and

21 (ii) in the last sentence, by striking

22 ‘‘finds’’ and inserting ‘‘find’’; and

23 (B) by striking subparagraph (C) and in24 serting the following:

25 ‘‘(C) During the pendency of any pro26 ceeding under this subsection, the Copyright


1036I.AAF
24

6

•HR 1036 IH

1 Royalty Judges shall have the discretion to au2 thorize the Librarian of Congress to proceed to

3 distribute any amounts that are not in con4 troversy.’’.

5 (b) SOUND RECORDINGS.—Section 114(f) of title 17,

6 United States Code, is amended—

7 (1) in paragraph (1)(A), in the first sentence,

8 by striking ‘‘except where’’ and all that follows

9 through the end period and inserting ‘‘, except in

10 the case of a different transitional period provided

11 under section 6(b)(3) of the Copyright Royalty and

12 Distribution Reform Act of 2004, or such other pe13 riod as the parties may agree.’’; and

14 (2) in paragraph (2)(A), by striking ‘‘except

15 where a different transitional period is provided’’

16 and inserting ‘‘except in the case of a different tran17 sitional period provided’’.

18 (c) PHONORECORDS OF NONDRAMATIC MUSICAL

19 WORKS.—Section 115(c)(3) of title 17, United States

20 Code, is amended—

21 (1) in subparagraph (B), by striking ‘‘subpara22 graphs (B) through (F)’’ and inserting ‘‘this sub23 paragraph and subparagraphs (C) through (E)’’;

24 and


1036I.AAG
25

7

•HR 1036 IH

1 (2) in subparagraph (E), in clauses (i) and

2 (ii)(I), by striking ‘‘(C) or (D)’’ each place it ap3 pears and inserting ‘‘(C) and (D)’’.

4 (d) NONCOMMERCIAL BROADCASTING.—Section 118

5 of title 17, United States Code, is amended—

6 (1) in subsection (b)(3), by striking ‘‘copyright

7 owners in works’’ and inserting ‘‘owners of copyright

8 in works’’; and

9 (2) in subsection (c), by striking ‘‘Copyright

10 Royalty Judges’’ and all that follows through ‘‘Li11 brarian of Congress’’ and inserting ‘‘Copyright Roy12 alty Judges under subsection (b)(4)’’.

13 (e) SATELLITE CARRIERS.—Section 119(b)(4) of title

14 17, United States Code, is amended—

15 (1) in subparagraph (B), by striking the second

16 sentence and inserting the following: ‘‘If the Copy17 right Royalty Judges determine that no such con18 troversy exists, the Copyright Royalty Judges shall

19 authorize the Librarian of Congress to proceed to

20 distribute such fees to the copyright owners entitled

21 to receive them, or to their designated agents, sub22 ject to the deduction by the Librarian of reasonable

23 administrative costs under this section.’’; and

24 (2) by amending subparagraph (C) to read as

25 follows:


1036I.AAH
26

8

•HR 1036 IH

1 ‘‘(C) WITHHOLDING OF FEES DURING

2 CONTROVERSY.—During the pendency of any

3 proceeding under this subsection, the Copyright

4 Royalty Judges shall have the discretion to au5 thorize the Librarian of Congress to proceed to

6 distribute any amounts that are not in con7 troversy.’’.

8 (f) DIGITAL AUDIO RECORDING DEVICES.—Section

9 1007 of title 17, United States Code, is amended—

10 (1) in subsection (b)—

11 (A) in the second sentence, by striking

12 ‘‘Librarian of Congress’’ and inserting ‘‘Copy13 right Royalty Judges’’; and

14 (B) in the last sentence, by striking ‘‘by

15 the Librarian’’; and

16 (2) in subsection (c), in the last sentence, by

17 striking ‘‘by the Librarian’’.

18 (g) EFFECTIVE DATE.—Section 6(b)(1) of the Copy19 right Royalty and Distribution Reform Act of 2004 (Pub20 lic Law 108–419) is amended by striking ‘‘commenced be21 fore the date of enactment of this Act’’ and inserting

22 ‘‘commenced before the effective date provided in sub23 section (a)’’.

Æ


1036I.AAI
27

Chairman SENSENBRENNER. The Chair passes on this. 

Without objection, all Members may place opening statements in 

the record on each of the bills being considered en bloc at this time. 

Hearing no objection, so ordered. 

[The prepared statement of Mr. Smith follows:]

PREPARED STATEMENT OF THE HONORABLE LAMAR SMITH, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON

COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

The enactment of H.R. 1417, the ‘‘Copyright Royalty and Distribution Reform Act 

of 2004’’ last Congress was a signature and bipartisan achievement. 

This legislation represented the culmination of more than 20 years of Congressional efforts to develop the appropriate administrative and adjudicatory constructs 

to oversee the royalty rate-setting and distribution functions that are necessitated 

by commercial reliance on compulsory licenses. 

The new processes were developed after extensive consultation with the Register 

of Copyrights, copyright owners, and many of the commercial users who are beneficiaries of these licenses. 

Before addressing the specifics of the bill, I’d like to take a moment to acknowledge the longstanding concern and incredible dedication of the Subcommittee Ranking Member, Mr. Berman, to this issue. I think it also appropriate to acknowledge 

the energy, enthusiasm and expertise contributed by his former Counsel, Alec 

French. 

When the Copyright Royalty Judge, or ‘‘CRJ,’’ system is fully implemented, disputes will be settled in a more predictable, rational and consistent manner; decisions will be improved by the involvement of judges required to possess relevant 

subject matter expertise; and significant cost savings and efficiencies should be realized by participants. 

A clear articulation of the precise delineation of the respective roles of the Copyright Office and the new CRJ’s is fundamental to the success of the new system. 

Under the CRJ construct, the Librarian of Congress remains responsible for a 

number of administrative and ministerial duties, to include the actual distribution 

of royalties determined to be not in controversy. 

Conversely, the CRJs are responsible for fact-finding in adjudicatory proceedings, 

for determining whether or not a controversy exists and for authorizing the distribution of royalties by the Librarian. 

Unfortunately, as enrolled, H.R. 1417 inadvertently stated in some places that the 

Librarian was charged with ‘‘authoriz[ing]’’ the distribution of funds. 

This error is representative of the types of errors that needs to be corrected. In 

addition, this bill contains further non-controversial stylistic, technical, clarifying 

and conforming changes. 

I urge my colleagues to adopt the provisions in H.R. 1036, which I believe will 

help to alleviate needless uncertainties and contribute to the smooth, efficient operation of the new CRJ process.

[The prepared statement of Mr. Berman follows:]

PREPARED STATEMENT OF THE HONORABLE HOWARD L. BERMAN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA, AND RANKING MEMBER, SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY

I want to thank the Chairman for his able leadership in moving this bill forward 

expeditiously. 

One of the Subcommittee’s major accomplishments last Congress was to see the 

CARP reform bill from its inception to ultimate passage. The original bill accomplished much with a general overhaul of the administrative construct by which 

copyright royalties are determined and distributed based on the compulsory licenses 

authorized by the Copyright Act. 

H.R. 1036, the Technical Corrections to the Copyright Royalty and Distribution 

Reform Act of 2004, which I introduced with the Chairman of the Subcommittee, 

makes a number of technical corrections. Some provisions merely change spelling 

and punctuation; others correct cross-references, paragraph numbering, or editorial 

style in copyright law. 

The corrections not in the aforementioned categories are merely technical as well. 

Those changes include amending the statute to correctly identify the roles of the 

copyright royalty judges and the librarian of congress in authorizing and distributing royalty payments. In addition, the bill addresses the omission of CARP deciVerDate jul 14 2003 00:15 Apr 29, 2005 Jkt 039006 PO 00000 Frm 00027 Fmt 6659 Sfmt 6621 E:\HR\OC\HR064.XXX HR064
28

sions serving as precedent and provides consistency for written direct statements 

and written rebuttal statements. 

I want to thank the Copyright Office, the Legislative Counsel and some outside 

groups for their assistance in noting many of the errors and then their help in drafting this bill. 

I urge my colleagues to support this bill.

Chairman SENSENBRENNER. Are there any amendments to any of 

the bills? 

[No response.] 

Chairman SENSENBRENNER. There being no amendments, without objection, the previous question is ordered on reporting the bills 

favorably and the vote on reporting these bills favorably will be 

taken when a reporting quorum is present. 

Without objection the order for the previous question is vitiated. 

There is a Subcommittee amendment on H.R. 683, the Dilution 

Bill. Without objection, the Subcommittee amendment is agreed to. 

Hearing none, so ordered. 

And now without objection, the previous question is ordered on 

reporting the bills favorably with H.R. 683 being reported favorably 

as amended. And the vote will be taken at the time that a reporting quorum appears. 

[Intervening business.] 

Chairman SENSENBRENNER. If there are no further amendments, 

without objection, the previous question is ordered favorably reporting Senate 167. 

We are still one short of a reporting quorum. I would ask the 

Members present to be patient, and as soon as we round up—here 

we go. They have been rounded up. [Laughter.] 

The previous question has been ordered on reporting favorably 

the following bills: Senate 167, H.R. 683, H.R. 1036, H.R. 1037 and 

H.R. 1038. So many as are in favor of reporting these bills favorably will say aye. 

Opposed, no? 

The ayes appear to have it. The ayes have it, and the bills are 

reported favorably. 

Without objection, those bills which were amended here, meaning 

H.R. 683, will be reported favorably to the House in the form of a 

single amendment in the nature of a substitute, incorporating the 

amendments adopted here today. That unanimous consent request 

also includes Senate 167 as amended. 

Is there any objection? 

[Intervening business.] 

Chairman SENSENBRENNER. Okay. Without objection, all Members will be given 2 days as provided by House rules, in which to 

submit additional dissenting supplemental or minority views, and 

without objection the staff is directed to make any technical and 

conforming changes. 

[Intervening business.] 

Chairman SENSENBRENNER. There being no further business to 

come before the Committee, the Committee stands adjourned. 

[Whereupon, at 10:17 a.m., the Committee was adjourned.]

Æ