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[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1628 Introduced in Senate (IS)]

  2d Session
                                S. 1628

   To amend title 17, United States Code, relating to the copyright 
   interests of certain musical performances, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 20, 1996

 Mr. Brown (for himself, Mr. Thomas, Mr. Faircloth, Mr. Thurmond, and 
  Mr. Helms) introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
   To amend title 17, United States Code, relating to the copyright 
   interests of certain musical performances, and for other purposes.

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

SECTION 1. MUSIC LICENSE FEES.

    Section 110(5) of title 17, United States Code, is amended to read 
as follows:
            ``(5) communication within a commercial establishment of a 
        transmission embodying a performance or display of a work by 
        the reception of a broadcast, cable, satellite, or other 
        transmission, if communicated--
                    ``(A) in an area within the establishment where a 
                transmission is intended to be received by the general 
                public that is smaller than 5,000 square feet;
                    ``(B) within an establishment whose gross annual 
                income does not exceed 20 percent of the gross annual 
                income of a small business under the applicable 
                Standard Industrial Code as defined by the Small 
                Business Administration;
                    ``(C) by means of 10 or fewer loudspeakers, not 
                including speakers in audiovisual devices; or
                    ``(D) by means of speakers in audiovisual devices 
                only,
        if no direct charge is made to see or hear the transmission, 
        the reception of the transmission is authorized, and the 
        transmission or retransmission is not further transmitted to 
        the public beyond the premises of the retail establishment;''.

SEC. 2. ARBITRATION BETWEEN GENERAL MUSIC USERS AND PERFORMING RIGHTS 
              SOCIETIES; AVAILABILITY OF REPERTOIRE.

    (a) Arbitration.--
            (1) In general.--Chapter 1 of title 17, United States Code, 
        is amended by adding after section 120 the following new 
        section:
``Sec. 121. Arbitration between general music users and performing 
              rights societies; availability of repertoire
    ``(a) Arbitration.--
            ``(1) In general.--Any controversy or dispute arising out 
        of or related to the appropriate fee to be paid for the user's 
        past or future performance of nondramatic musical works in the 
        repertoire of the performing rights society shall be settled by 
        arbitration administered by the American Arbitration 
        Association under its Commercial Arbitration Rules, and 
        judgment on the award may be rendered by the arbitrators may be 
        entered in any court having jurisdiction thereof.
            ``(2) Findings.--The arbitrator's findings shall be 
        confidential and shall not provide any precedent for the 
        determination of rates, except as to the parties involved.
            ``(3) Duration of determination.--In any arbitration 
        proceeding initiated under this subsection, the arbitrator's 
        determination of a fair and reasonable license fee for the 
        performance of nondramatic musical works in the repertoire of 
        the performing rights society shall apply for a period of not 
        less than 3 years nor more than 5 years after the date of the 
        arbitrator's determination.
    ``(b) Access to Licensing Information and Repertoire.--
            ``(1) In general.--Performing rights societies shall make 
        available, free of charge, to all interested persons, online 
        computer access to copyright and licensing information for each 
        nondramatic musical work in its repertoire which is published 
        or performed, without regard to whether the work is identified 
        in the society's survey of music use. Such information shall, 
        for each such nondramatic musical work, identify the work by 
        the title of the work; the name of the writer; the name, 
        address, and telephone number of the publisher; when the work 
        will enter the public domain, if determinable; and the names of 
        any artists known by the society to have recorded the work, to 
        the extent such artist information is tracked by the society 
        for any purpose other than this section. Such online computer 
        access shall permit the efficient review of multiple musical 
        works consistent with reasonably available technology.
            ``(2) Directory.--Each performing rights society shall make 
        available at its reproduction cost, not including the cost of 
        maintaining the database or any other overhead, not less 
        frequently than semiannually, a printed directory or CD ROM 
        directory of each title in its repertoire, at the choice of the 
        music user, as of the date which is not more than 30 days 
        before the date on which the directory is published, containing 
        the information under paragraph (1).''.
            (2) Technical and conforming amendment.--The table of 
        sections for chapter 1 of title 17, United States Code, is 
        amended by adding after the item relating to section 120 the 
        following:

``121. Arbitration between general music users and performing rights 
                            societies; availability of repertoire.''.
    (b) Restrictions on Infringement Actions.--Section 504 of title 17, 
United States Code, is amended by adding at the end thereof the 
following new subsection:
    ``(d) Restrictions.--No fee for a license may be charged and no 
action may be instituted, maintained, or supported by the society for 
the public performance of a nondramatic musical work in a society's 
repertoire, that is not identified and documented as required under 
section 121, without regard to whether the nondramatic musical work has 
been published or performed, if a good faith effort to search the 
repertoire of the performing rights society as provided under section 
121 has been made.''.

SEC. 3. RADIO PER PROGRAMMING PERIOD LICENSE.

    Section 504 of title 17, United States Code, as amended by section 
2 of this Act, is further amended by adding at the end thereof the 
following new subsection:
    ``(f) Radio Per Programming Period License.--
            ``(1) In general.--Each performing rights society shall 
        offer, to any radio broadcaster that so requests, a per 
        programming period license to perform nondramatic musical works 
        in the repertoire of the performing rights society. Such 
        license shall be offered on reasonable terms and conditions 
        that provide an economically and administratively viable 
        alternative to the blanket license offered by the society to 
        radio broadcasters for all such broadcasters.
            ``(2) Price of per programming period license.--
                    ``(A) The total price of a per programming period 
                license described under paragraph (1)--
                            ``(i) shall include separate components for 
                        incidental and feature performances, with the 
                        incidental performance component to be 
                        independent of the quantity of such 
                        performances by the broadcaster and not to 
                        exceed the relative value the performing rights 
                        society assigns to such performances in its 
                        distribution of royalties; and
                            ``(ii) shall vary between the incidental 
                        performance component, for a broadcaster that 
                        makes only incidental performances of music in 
                        the society's repertoire, and the fee that 
                        would be payable under the blanket license 
                        offered to radio broadcasters, in direct 
                        proportion to the percentage of the 
                        broadcaster's revenue attributable to 
                        programming periods containing feature 
                        performances of nondramatic musical works in 
                        the society's repertoire compared to the 
                        industry average percentage of revenue 
                        attributable to programming periods containing 
                        feature performances of such musical works.
                    ``(B) A nondramatic musical work shall not be 
                considered in calculating any per programming period 
                license fee under this subsection, if the performance 
                of such work--
                            ``(i) has been licensed directly, at the 
                        source, or other than by the society; or
                            ``(ii) constitutes fair use or is otherwise 
                        exempt from liability under this title.
            ``(3) Administration of license.--Commencing on January 1, 
        1998, the performance of nondramatic musical works by a 
        broadcaster under any per programming period license shall be 
        determined on the basis of statistically reliable sampling or 
        monitoring by the performing rights society, and the society 
        may not require the broadcaster to report such performances to 
        the society. The society shall provide the broadcaster with a 
        report detailing the results of such sampling or monitoring, 
        identifying each programming period containing the performance 
        of nondramatic musical works in the society's repertoire and 
        the nondramatic musical works in the society's repertoire 
        performed during each such period.
            ``(4) Implementation.--Any radio broadcaster entitled to a 
        per programming period license under this subsection may bring 
        an action to require compliance with this subsection in an 
        appropriate United States district court, including any 
        district court established by court order or statute as a court 
        that resolves disputes, with respect to license rates, that may 
        arise between performing rights societies and persons who 
        perform musical works in the society's repertoire.
            ``(5) Definitions.--As used in this subsection--
                    ``(A) the term `blanket license' means a license 
                provided by a performing rights society that authorizes 
                the unlimited performance of musical works in the 
                society's repertoire, for a fee that does not vary with 
                the quantity of performances of musical works in the 
                society's repertoire, or any other license with 
                comparable economic effect;
                    ``(B) the term `incidental' as applied to 
                performances shall include commercial jingles not 
                exceeding 60 seconds in duration, bridges, themes or 
                signatures, arrangements of works in the public domain, 
                and background music, including music used in 
                conjunction with sporting events; and
                    ``(C) the term `programming period' means any 15 
                minute period of radio broadcasting commencing on the 
                hour, or at 15, 30, or 45 minutes past the hour.''.

SEC. 4. RELIGIOUS SERVICE EXEMPTION.

    Section 110(3) of title 17, United States Code, is amended by 
inserting after ``religious assembly'' the following: ``the 
transmission of such services, whether live or recorded, or the 
recording of copies or phonorecords of a transmission program embodying 
such services in their entirety, if there is no commercial 
advertisement or commercial sponsor within the program.''.

SEC. 5. CONFORMING AMENDMENTS RELATING TO DEFINITIONS.

    (a) Performing Rights Society.--Section 101 of title 17, United 
States Code, is amended by inserting after the undesignated paragraph 
relating to the definition of ``perform'' the following:
            ``A `performing rights society' is an association, 
        corporation, or other entity that licenses the public 
        performance of nondramatic musical works on behalf of copyright 
        owners of such works, such as the American Society of 
        Composers, Authors, and Publishers, Broadcast Music, Inc., and 
        SESAC, Inc. The repertoire of a performing rights society 
        consists of those works for which the society provides licenses 
        on behalf of the owners of copyright in the works.''.
    (b) General Music User.--Section 101 of title 17, United States 
Code, is amended by inserting after the undesignated paragraph relating 
to the definition of ``fixed'' the following:
            ``A `general music user' is any person who performs musical 
        works publicly but is not engaged in the transmission of 
        musical works to the general public or to subscribers through 
        broadcast, cable, satellite, or other transmission. For 
        purposes of this paragraph, transmissions within a single 
        commercial establishment or within establishments under common 
        ownership or control are not transmissions to the general 
        public.''.
    (c) Loudspeaker.--Section 101 of title 17, United States Code, is 
amended by inserting after the undesignated paragraph relating to the 
definition of ``Literary works'' the following:
            ``A `loudspeaker' is any device or self contained 
        collection of devices that converts electronic signals to 
        audible sound.''.
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