I

104TH CONGRESS

1ST SESSION H. R. 1506

To amend title 17, United States Code, to provide an exclusive right to

perform sound recordings publicly by means of digital transmissions,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

APRIL 7, 1995

Mr. MOORHEAD (for himself, Mr. HYDE, Mr. CONYERS, and Mr. GEKAS) introduced the following bill; which was referred to the Committee on the

Judiciary

A BILL

To amend title 17, United States Code, to provide an exclusive right to perform sound recordings publicly by means

of digital transmissions, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Digital Performance

5 Right in Sound Recordings Act of 1995’’.

6 SEC. 2. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS.

7 Section 106 of title 17, United States Code, is

8 amended—
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1 (1) in paragraph (4) by striking ‘‘and’’ after

2 the semicolon;

3 (2) in paragraph (5) by striking the period and

4 inserting ‘‘; and’’; and

5 (3) by adding at the end the following:

6 ‘‘(6) in the case of sound recordings, to perform

7 the copyrighted work publicly by means of a digital

8 transmission.’’.

9 SEC. 3. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORD10 INGS.

11 Section 114 of title 17, United States Code, is

12 amended—

13 (1) in subsection (a) by striking ‘‘and (3)’’ and

14 inserting ‘‘, (3), and (6)’’;

15 (2) in the first sentence of subsection (b) by

16 striking ‘‘phonorecords, or of copies of motion pic17 tures and other audiovisual works,’’ and inserting

18 ‘‘phonorecords or copies’’; and

19 (3) by striking subsection (d) and inserting the

20 following:

21 ‘‘(d) LIMITATIONS ON EXCLUSIVE RIGHT.—Notwith22 standing the provisions of section 106(6)—

23 ‘‘(1) EXEMPT TRANSMISSIONS.—The perform24 ance of a sound recording publicly by means of a

25 digital transmission, other than as part of an inter-
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1 active service, is not an infringement of section

2 106(6) if the performance is part of—

3 ‘‘(A) a nonsubscription transmission, such

4 as a nonsubscription broadcast transmission;

5 ‘‘(B) any of the following transmissions,

6 whether it is a subscription transmission or a

7 nonsubscription transmission:

8 ‘‘(i) a prior or simultaneous trans9 mission incidental to a nonsubscription

10 transmission, such as a feed received by

11 and then retransmitted by the

12 nonsubscription transmitter, if such inci13 dental transmission does not include any

14 subscription transmission directly for re15 ception by members of the public;

16 ‘‘(ii) a retransmission of a

17 nonsubscription broadcast transmission if,

18 in the case of a retransmission of a radio

19 station’s broadcast transmission, the trans20 mission is not willfully or repeatedly

21 retransmitted beyond a radius of 150 miles

22 from the site of the radio broadcast trans23 mitter;

24 ‘‘(iii) a transmission to or within a

25 business establishment, that is confined to
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1 the premises of that business establish2 ment, the premises of other business estab3 lishments under common ownership or con4 trol, and the vicinity immediately sur5 rounding such establishment and establish6 ments; or

7 ‘‘(iv) a retransmission that is other8 wise an infringement of section 106(6), if

9 such transmission is simultaneous with the

10 primary transmission and is authorized by

11 the primary transmitter, and the primary

12 transmitter has been licensed to publicly

13 perform the sound recording.

14 ‘‘(2) SUBSCRIPTION TRANSMISSIONS.—In the

15 case of a subscription transmission other than a

16 transmission exempt under paragraph (1), the per17 formance of a sound recording publicly by means of

18 a digital transmission shall be subject to statutory li19 censing in accordance with subsection (f), if—

20 ‘‘(A) at least—

21 ‘‘(i) 3 months have expired since the

22 first public performance by means of a dig23 ital transmission of the sound recording

24 under the authority of the copyright owner
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1 in a subscription transmission in the Unit2 ed States, or

3 ‘‘(ii) 4 months have expired since the

4 first distribution for ultimate sale to con5 sumers in the United States of a phono6 record embodying the sound recording

7 under the authority of the copyright owner,

8 whichever period is shorter;

9 ‘‘(B) the transmission is not made for the

10 purpose of enabling the recipient of the trans11 mission to reproduce the sound recording;

12 ‘‘(C) the transmission does not exceed the

13 sound recording performance complement; and

14 ‘‘(D) except as provided in section 1002(e),

15 the transmission of the sound recording is ac16 companied by the information encoded in that

17 sound recording, if any, by or under the author18 ity of the copyright owner of that sound record19 ing, that identifies the title of the sound record20 ing, the featured recording artist who performs

21 on the sound recording, and related informa22 tion, including information concerning the un23 derlying musical work and its writer.

24 ‘‘(3) RIGHTS NOT OTHERWISE LIMITED.—
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1 ‘‘(A) Except as expressly provided in this

2 section, this section does not limit or impair the

3 exclusive right to perform a sound recording

4 publicly by means of a digital transmission

5 under section 106(6).

6 ‘‘(B) Nothing in this section annuls or lim7 its in any way—

8 ‘‘(i) the exclusive right to publicly per9 form a musical work, including by means

10 of a digital transmission, under section

11 106(4);

12 ‘‘(ii) the exclusive rights to reproduce

13 and distribute a sound recording or the

14 musical work embodied therein under para15 graphs (1) and (3) of section 106, includ16 ing by means of a digital phonorecord de17 livery as defined in section 115; or

18 ‘‘(iii) any other rights under any other

19 provision of section 106, or remedies avail20 able under this title, as such rights or rem21 edies exist either before or after the enact22 ment of the Digital Performance in Sound

23 Recordings Act of 1995.

24 ‘‘(e) AUTHORITY FOR NEGOTIATIONS.—Any copy25 right owners of sound recordings and any entities perform-
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1 ing sound recordings affected by this section may nego2 tiate and agree upon the terms and rates of royalty pay3 ments for the performance of such sound recordings and

4 the proportionate division of fees paid among copyright

5 owners, and may designate common agents to negotiate,

6 agree to, pay, or receive such royalty payments.

7 ‘‘(f) LICENSES FOR SUBSCRIPTION TRANS8 MISSIONS.—

9 ‘‘(1) VOLUNTARY NEGOTIATION PROCEED10 INGS.—Not later than 30 days after the date of the

11 enactment of the Digital Performance in Sound Re12 cordings Act of 1995, the Librarian of Congress

13 shall cause notice to be published in the Federal

14 Register of the initiation of voluntary negotiation

15 proceedings for the purpose of determining reason16 able terms and rates of royalty payments for the ac17 tivities specified in subsection (d)(2) during the pe18 riod beginning on January 1, 1996, and ending on

19 December 31, 2000. Such terms and rates shall dis20 tinguish among the different types of digital trans21 mission services then in operation. Any copyright

22 owners of sound recordings or any entities perform23 ing sound recordings affected by this section may

24 submit to the Librarian of Congress licenses cover25 ing such activities with respect to such sound record-
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1 ings. The parties to each such negotiation proceed2 ing shall bear the entire costs thereof.

3 ‘‘(2) COPYRIGHT ARBITRATION ROYALTY PANEL

4 PROCEEDING.—In the absence of license agreements

5 negotiated under paragraph (1), the Librarian of

6 Congress shall, pursuant to chapter 8, convene a

7 copyright arbitration royalty panel to determine and

8 publish in the Federal Register a schedule of rates

9 and terms which, subject to paragraph (3), shall be

10 binding on all copyright owners of sound recordings

11 and entities performing sound recordings. In estab12 lishing such rates and terms the copyright arbitra13 tion royalty panel may consider the rates for com14 parable types of digital transmission services and

15 comparable circumstances under voluntary license

16 agreements negotiated under paragraph (1). The

17 parties to the proceeding shall bear the entire cost

18 thereof in such manner and proportion as the arbi19 tration panel shall direct. The Librarian of Congress

20 shall also establish requirements by which copyright

21 owners may receive reasonable notice of the use of

22 their sound recordings under this section, and under

23 which records of such use shall be kept by entities

24 performing sound recordings.
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1 ‘‘(3) PRIORITY OF VOLUNTARY LICENSE AGREE2 MENTS.—License agreements voluntarily negotiated

3 at any time between one or more copyright owners

4 of sound recordings and one or more entities per5 forming sound recordings with respect to activities

6 specified in subsection (d)(2) shall be given effect in

7 lieu of any determination by the Librarian of Con8 gress under chapter 8 with respect to the same mat9 ter.

10 ‘‘(4) PERIODIC APPLICATION OF PROCE11 DURES.—The procedures set forth in paragraphs (1)

12 and (2) shall be repeated and concluded, in accord13 ance with regulations that the Librarian of Congress

14 shall prescribe—

15 ‘‘(A) within the 6-month period beginning

16 on the date on which a petition is filed by any

17 copyright owners of sound recordings or any en18 tities performing sound recordings affected by

19 this section indicating that a new type of digital

20 transmission service on which sound recordings

21 are performed is or is about to become oper22 ational, and

23 ‘‘(B) between June 30 and December 31 of

24 the year 2000 and every fifth year thereafter.
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1 ‘‘(5) NOTICE AND ROYALTIES REQUIREMENTS

2 FOR SUBSCRIPTION TRANSMISSIONS.—Any person

3 who wishes to perform a sound recording publicly by

4 means of a subscription transmission under this sub5 section may do so without infringing the exclusive

6 right of the copyright owner of the sound recording

7 by complying with such notice requirements as the

8 Register of Copyrights shall prescribe by regulation

9 and by paying royalty fees in accordance with this

10 subsection, or, if such royalty fees have not been set,

11 by agreeing to pay such royalty fees as shall be de12 termined in accordance with this subsection, and any

13 royalty payments in arrears shall be made on or be14 fore the twentieth day of the month after the month

15 in which the royalty fees are set.

16 ‘‘(g) PROCEEDS FROM LICENSING OF SUBSCRIPTION

17 TRANSMISSIONS.—

18 ‘‘(1) PAYMENTS TO RECORDING ARTISTS.—Ex19 cept in the case of a subscription transmission li20 censed in accordance with subsection (f)—

21 ‘‘(A) a featured recording artist who per22 forms on a sound recording that has been li23 censed for a subscription transmission shall be

24 entitled to receive payments from the copyright
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1 owner of the sound recording in accordance

2 with the terms of the artist’s contract; and

3 ‘‘(B) a nonfeatured recording artist who

4 performs on a sound recording that has been li5 censed for a subscription transmission shall be

6 entitled to receive payments from the copyright

7 owner of the sound recording in accordance

8 with the terms of the nonfeatured recording

9 artist’s applicable contract or other applicable

10 agreement.

11 ‘‘(2) ALLOCATION OF RECEIPTS TO RECORDING

12 ARTISTS.—The copyright owner of the exclusive

13 right under section 106(6) to publicly perform a

14 sound recording by means of a digital transmission

15 shall allocate to recording artists in the following

16 manner its receipts from the licensing of subscrip17 tion transmission performances of the sound record18 ing in accordance with subsection (f):

‘‘(A) 21 19 ⁄2 percent of the receipts shall be

20 deposited in an escrow account managed by an

21 independent administrator jointly appointed by

22 copyright owners of sound recordings and the

23 American Federation of Musicians (or any suc24 cessor entity) to be distributed to nonfeatured

25 musicians (whether or not members of the
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1 American Federation of Musicians) who have

2 performed on sound recordings.

‘‘(B) 21 3 ⁄2 percent of the receipts shall be

4 deposited in an escrow account managed by an

5 independent administrator jointly appointed by

6 copyright owners of sound recordings and the

7 American Federation of Television and Radio

8 Artists (or any successor entity) to be distrib9 uted to nonfeatured vocalists (whether or not

10 members of the American Federation of Tele11 vision and Radio Artists) who have performed

12 on sound recordings.

13 ‘‘(C) 45 percent of the receipts shall be al14 located, on a per sound recording basis, to the

15 recording artist or artists featured on such

16 sound recording (or the persons conveying

17 rights in the artists’ performance in the sound

18 recordings).

19 ‘‘(h) LICENSING TO AFFILIATES.—Where the copy20 right owner of a sound recording owns a controlling inter21 est in, or otherwise has the power directly or indirectly

22 to exercise a controlling influence over the management

23 or policies of, an entity engaging in digital transmissions

24 covered by section 106(6) and licenses to such entity the

25 right to publicly perform a sound recording by means of
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1 a digital transmission, the copyright owner shall make the

2 licensed sound recording available under section 106(6) on

3 similar terms and conditions to all other similarly-situated

4 entities offering similar types of digital transmission serv5 ices, except that the copyright owner may—

6 ‘‘(1) impose reasonable requirements for credit

7 worthiness; and

8 ‘‘(2) establish different prices, terms, and con9 ditions to take into account the types of services of10 fered, the duration of the license, the geographic re11 gion, the numbers of subscribers served, and any

12 other relevant factors.

13 ‘‘(i) NO EFFECT ON ROYALTIES FOR UNDERLYING

14 WORKS.—License fees payable for the public performance

15 of sound recordings under section 106(6) shall not be

16 taken into account in any administrative, judicial, or other

17 governmental proceeding to set or adjust the royalties pay18 able to copyright owners of musical works for the public

19 performance of their works. Royalties payable to copyright

20 owners of musical works for the public performance of

21 their works shall not be diminished in any respect as a

22 result of the rights granted by section 106(6).

23 ‘‘(j) DEFINITIONS.—As used in this section, the fol24 lowing terms have the following meanings:
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1 ‘‘(1) A ‘broadcast transmission’ is a trans2 mission made by a broadcast station licensed as such

3 by the Federal Communications Commission.

4 ‘‘(2) An ‘interactive service’ is one that enables

5 a member of the public to receive, on request, a

6 transmission of a particular sound recording chosen

7 by or on behalf of the recipient. The ability of indi8 viduals to request that particular sound recordings

9 be performed for reception by the public at large

10 does not make a service interactive. If an entity of11 fers both interactive and non-interactive services (ei12 ther concurrently or at different times), the non13 interactive component shall not be treated as part of

14 an interactive service.

15 ‘‘(3) A ‘nonsubscription transmission’ is any

16 transmission that is not a subscription transmission.

17 ‘‘(4) The ‘sound recording performance com18 plement’ is—

19 ‘‘(A) in the case of an interactive service,

20 the capability of a member of the public to re21 ceive transmissions, during a 1-week period, of

22 no more than the complement number; or

23 ‘‘(B) in the case of a transmission other

24 than in the course of an interactive service, the
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1 transmission consecutively of no more than the

2 complement number.

3 ‘‘(5) The ‘complement number’ is—

4 ‘‘(A) 2 selections of sound recordings em5 bodied in any one phonorecord distributed in

6 the United States for ultimate sale to consum7 ers; or

8 ‘‘(B) 3 selections of sound recordings of

9 performances—

10 ‘‘(i) by the same featured recording

11 artist, or

12 ‘‘(ii) embodied in any set of

13 phonorecords or compilation of sound re14 cordings marketed together as a unit for

15 ultimate sale to consumers.

16 ‘‘(6) A ‘subscription transmission’ is a trans17 mission that is controlled and limited to particular

18 recipients, and for which consideration is required to

19 be paid or otherwise given by or on behalf of the re20 cipient to receive the transmission or a package of

21 transmissions that includes the transmission.’’.
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1 SEC. 4. SCOPE OF EXCLUSIVE RIGHTS IN NONDRAMATIC

2 MUSICAL WORKS: COMPULSORY LICENSE

3 FOR MAKING AND DISTRIBUTING

4 PHONORECORDS.

5 Section 115 of title 17, United State Code, is

6 amended—

7 (1) by striking ‘‘clause’’ each place it appears

8 and inserting ‘‘paragraph’’;

9 (2) in subsection (a)(1) by inserting before the

10 period at the end of the second sentence ‘‘, including

11 by means of a digital phonorecord delivery’’;

12 (3) in the second sentence of subsection (c)(2),

13 by inserting ‘‘and except as provided in paragraph

14 (3),’’ after ‘‘For this purpose,’’;

15 (4) in subsection (c) by redesignating para16 graphs (3), (4), and (5) as paragraphs (5), (6), and

17 (7), respectively, and by inserting after paragraph

18 (2) the following:

19 ‘‘(3)(A) A compulsory license under this section

20 includes the right of the maker of a phonorecord of

21 a nondramatic musical work under subsection (a)(1)

22 to distribute or authorize distribution of the sound

23 recording embodied in such phonorecord by means of

24 a digital transmission which constitutes a digital

25 phonorecord delivery. Such transmission may also

26 constitute a public performance of a nondramatic
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1 musical work under section 106(4) and of a sound

2 recording under section 106(6).

3 ‘‘(B)(i) For every digital phonorecord delivery

4 by or under the authority of the compulsory licensee

5 which is identifiable, the royalty payable by the com6 pulsory licensee shall be the royalty prescribed under

7 paragraph (2) and chapter 8 of this title.

8 ‘‘(ii) For every digital phonorecord delivery by

9 or under the authority of the compulsory licensee

10 which is not identifiable but which can be reasonably

11 expected to result from a digital transmission of a

12 sound recording, the royalty payable by the compul13 sory licensee shall be the royalty prescribed under

14 paragraph (4).

15 ‘‘(iii) The Librarian of Congress shall prescribe

16 regulations describing the types of digital trans17 missions of a sound recording which are described in

18 clauses (i) and (ii). Such regulations—

19 ‘‘(I) shall take into account any efforts by

20 transmitters to avoid or evade the reasonable

21 use of available techniques to identify deliveries

22 to transmission recipients of phonorecords of

23 sound recordings, and

24 ‘‘(II) may consider the nature of the digi25 tal transmission service, its marketing practices,
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1 technical characteristics, or other indicia to de2 termine whether it is described in clause (ii).

3 ‘‘(C) Independent of any right of public per4 formance under section 106(4), the copyright owner

5 of a nondramatic musical work embodied in a sound

6 recording has the right to receive royalty payments

7 at the rates prescribed under this subsection when

8 the digital transmission of that sound recording con9 stitutes a digital phonorecord delivery. Unless au10 thorized by the copyright owner of the nondramatic

11 musical work or by any person who has obtained a

12 compulsory license under this section, such a digital

13 transmission, by whomever made, shall be actionable

14 by the copyright owner in the nondramatic musical

15 work as an act of infringement, except that no such

16 cause of action may be brought against a copyright

17 owner of a sound recording unless it authorized the

18 digital phonorecord delivery. Any such cause of ac19 tion shall be in addition to remedies available to the

20 copyright owner of the musical work under section

21 106(4) and the copyright owner of the sound record22 ing with respect to digital phonorecord deliveries

23 under section 106(6).

24 ‘‘(D) Nothing in section 1008 shall be con25 strued to prevent the exercise of the rights and rem-
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1 edies allowed by this paragraph, paragraph (7), and

2 chapter 5 in the event of a digital phonorecord deliv3 ery, except that no action alleging infringement of

4 copyright may be brought under this title against a

5 manufacturer, importer, or distributor of a digital

6 audio recording device, a digital audio recording me7 dium, an analog recording device, or an analog re8 cording medium, or against a consumer, based on

9 the actions described in such section.

10 ‘‘(E) Nothing in this section annuls or limits in

11 any way—

12 ‘‘(i) the exclusive right to publicly perform

13 a sound recording or the musical work em14 bodied therein, including by means of a digital

15 transmission, under sections 106(4) and

16 106(6),

17 ‘‘(ii) except for the compulsory licensing

18 under the conditions specified by this section,

19 the exclusive rights to reproduce and distribute

20 the sound recording and the musical work em21 bodied therein under sections 106(1) and

22 106(3), including by means of a digital phono23 record delivery, or

24 ‘‘(iii) any other rights under any other pro25 vision of section 106, or remedies available
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1 under this title, as such rights or remedies exist

2 either before or after the enactment of the Digi3 tal Performance in Sound Recordings Act of

4 1995.

5 ‘‘(4) LICENSES FOR CERTAIN DIGITAL PHONO6 RECORD DELIVERIES.—

7 ‘‘(A) Notwithstanding any provision of the

8 antitrust laws, for the purposes of this para9 graph any copyright owners of nondramatic

10 musical works and any persons entitled to ob11 tain a compulsory license under subsection

12 (a)(1) may negotiate and agree upon the terms

13 and rates of royalty payments for any digital

14 phonorecord deliveries described in paragraph

15 (3)(B)(ii) and the proportionate division of fees

16 paid among copyright owners, and may des17 ignate common agents to negotiate, agree to,

18 pay, or receive such royalty payments.

19 ‘‘(B) Not later than 30 days after the date

20 of the enactment of the Digital Performance

21 Right in Sound Recordings Act of 1995, the Li22 brarian of Congress shall cause notice to be

23 published in the Federal Register of the initi24 ation of voluntary negotiations for the purpose

25 of determining reasonable terms and rates of
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1 royalty payments for the digital phonorecord

2 deliveries described in clause (3)(B)(ii) during

3 the period beginning on January 1, 1996, and

4 ending on December 31, 1999. Such terms and

5 rates shall distinguish among the different

6 types of digital phonorecord delivery services

7 then in operation. Any copyright owners of

8 nondramatic musical works and any persons en9 titled to obtain a compulsory license under sub10 section (a)(1) may submit to the Librarian of

11 Congress licenses covering activities with re12 spect to such works. The parties to each such

13 negotiation proceeding shall bear the entire

14 costs thereof.

15 ‘‘(C) In the absence of license agreements

16 negotiated under subparagraph (B), the Librar17 ian of Congress shall, pursuant to chapter 8,

18 convene a copyright arbitration royalty panel to

19 determine and publish in the Federal Register

20 a schedule of rates and terms which, subject to

21 subparagraph (D), shall be binding on all copy22 right owners of nondramatic musical works and

23 persons entitled to obtain a compulsory license

24 under subsection (a)(1). In establishing such

25 rates and terms the copyright arbitration roy-
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1 alty panel may consider the rates for com2 parable types of digital phonorecord delivery

3 services and comparable circumstances under

4 voluntary license agreements negotiated under

5 subparagraph (B). The parties to the proceed6 ing shall bear the entire cost thereof in such

7 manner and proportion as the arbitration panel

8 shall direct. The Librarian of Congress shall

9 also establish requirements by which copyright

10 owners shall receive reasonable notice of the use

11 of their works under this subsection, and under

12 which records of such use shall be kept and

13 made available by persons entitled to obtain a

14 compulsory license under subsection (a)(1) and

15 authorized to make digital phonorecord deliv16 eries.

17 ‘‘(D) License agreements voluntarily nego18 tiated at any time between one or more copy19 right owners of nondramatic musical works and

20 one or more persons entitled to obtain a com21 pulsory license under subsection (a)(1) shall be

22 given effect in lieu of any determination by the

23 Librarian of Congress under chapter 8 that

24 would otherwise apply.
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1 ‘‘(E) The procedures set forth in subpara2 graphs (B) and (C) shall be repeated and con3 cluded, in accordance with regulations that the

4 Librarian of Congress shall prescribe—

5 ‘‘(i) within the 6-month period begin6 ning on the date on which a petition is

7 filed by any copyright owners of

8 nondramatic musical works or any person

9 entitled to obtain a compulsory license

10 under subsection (a)(1) affected by this

11 section indicating that a new type of digi12 tal phonorecord delivery service is or is

13 about to become operational, and

14 ‘‘(ii) between June 30 and December

15 31 of the year 1999 and each fifth year

16 thereafter.’’;

17 (5) by inserting after the first sentence in sec18 tion (c)(6) (as so redesignated) the following: ‘‘In

19 the case of digital phonorecord deliveries described

20 in paragraph (3)(B)(ii) for which royalty fees have

21 not been set, the compulsory licensee shall pay, ef22 fective as of the initial delivery, such royalty fees as

23 shall later be determined in accordance with sub24 section (c)(4), and any royalty payments in arrears

25 shall be made on or before the twentieth day of the
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1 month after the month in which the royalty fees are

2 set.’’; and

3 (6) by adding after subsection (c) the following:

4 ‘‘(d) DEFINITION.—As used in this section, the term

5 ‘digital phonorecord delivery’ means each individual deliv6 ery of a phonorecord by digital transmission of a sound

7 recording which—

8 ‘‘(1) results in an identifiable reproduction by

9 or for any transmission recipient of such sound re10 cording, or

11 ‘‘(2) can be reasonably expected to result in a re12 production by or for any transmission recipient of

13 such sound recording even though such delivery is

14 not identifiable,

15 regardless of whether the digital transmission is also a

16 public performance of the sound recording or any

17 nondramatic musical work embodied therein. None of the

18 exempt transmissions described in section 114(d)(1) shall

19 be considered a digital phonorecord delivery.’’.

20 SEC. 5. CONFORMING AMENDMENTS.

21 (a) DEFINITIONS.—Section 101 of title 17, United

22 States Code, is amended by inserting after the definition

23 of ‘‘device’’, ‘‘machine’’, or ‘‘process’’ the following:

24 ‘‘A ‘digital transmission’ is a transmission in a

25 digital format. A retransmission in a nondigital for-
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1 mat of a digital transmission is not itself a digital

2 transmission.’’

3 (b) LIMITATIONS ON EXCLUSIVE RIGHTS: SECOND4 ARY TRANSMISSIONS.—Section 111(c)(1) of title 17,

5 United States Code, is amended in the first sentence by

6 striking ‘‘The’’ and inserting ‘‘Except in the case of a per7 formance of a sound recording in the course of a digital

8 transmission, the’’.

9 (c) LIMITATIONS ON EXCLUSIVE RIGHTS: SECOND10 ARY TRANSMISSIONS OF SUPERSTATIONS AND NETWORK

11 STATIONS FOR PRIVATE HOME VIEWING.—Section

12 119(a)(1) of title 17, United States Code, is amended by

13 striking ‘‘Subject to’’ and inserting ‘‘Except in the case

14 of a performance of a sound recording in the course of

15 a digital transmission, and subject to’’.

16 (d) COPYRIGHT ARBITRATION ROYALTY PANELS.—

17 (1) Section 801(b)(1) of title 17, United States

18 Code, is amended in the first and second sentences

19 by striking ‘‘115’’ and inserting ‘‘114, 115,’’.

20 (2) Section 802(c) of title 17, United States

21 Code, is amended in the third sentence by striking

22 ‘‘section 111, 116, or 119,’’ and inserting ‘‘section

23 111, 114, 116, or 119, any person entitled to a com24 pulsory license under section 114(d), any person en25 titled to a compulsory license under section 115,’’.
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1 (3) Section 802(g) of title 17, United States

2 Code, is amended in the third sentence by striking

3 ‘‘115, 116, 118, 119, or 1003’’ and inserting ‘‘114,

4 115, 116, 118, 119, and 1003’’.

5 (4) Section 802(h)(2) of title 17, United States

6 Code, is amended by inserting ‘‘114,’’ after ‘‘111,’’.

7 SEC. 6. EFFECTIVE DATE.

8 This Act, and the amendments made by this Act,

9 shall take effect January 1, 1996, except that the provi10 sions of sections 114(e) and 114(f) of title 17, United

11 States Code, as added by section 3 of this Act, shall take

12 effect on the date of the enactment of this Act.

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