II

104TH CONGRESS

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.

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

3 SECTION 1. MUSIC LICENSE FEES.

4 Section 110(5) of title 17, United States Code, is

5 amended to read as follows:

6 ‘‘(5) communication within a commercial estab7 lishment of a transmission embodying a performance

8 or display of a work by the reception of a broadcast,
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1 cable, satellite, or other transmission, if commu2 nicated—

3 ‘‘(A) in an area within the establishment

4 where a transmission is intended to be received

5 by the general public that is smaller than 5,000

6 square feet;

7 ‘‘(B) within an establishment whose gross

8 annual income does not exceed 20 percent of

9 the gross annual income of a small business

10 under the applicable Standard Industrial Code

11 as defined by the Small Business Administra12 tion;

13 ‘‘(C) by means of 10 or fewer loudspeak14 ers, not including speakers in audiovisual de15 vices; or

16 ‘‘(D) by means of speakers in audiovisual

17 devices only,

18 if no direct charge is made to see or hear the trans19 mission, the reception of the transmission is author20 ized, and the transmission or retransmission is not

21 further transmitted to the public beyond the prem22 ises of the retail establishment;’’.
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1 SEC. 2. ARBITRATION BETWEEN GENERAL MUSIC USERS

2 AND PERFORMING RIGHTS SOCIETIES;

3 AVAILABILITY OF REPERTOIRE.

4 (a) ARBITRATION.—

5 (1) IN GENERAL.—Chapter 1 of title 17, United

6 States Code, is amended by adding after section 120

7 the following new section:

8 ‘‘§ 121. Arbitration between general music users and

9 performing rights societies; availability

10 of repertoire

11 ‘‘(a) ARBITRATION.—

12 ‘‘(1) IN GENERAL.—Any controversy or dispute

13 arising out of or related to the appropriate fee to be

14 paid for the user’s past or future performance of

15 nondramatic musical works in the repertoire of the

16 performing rights society shall be settled by arbitra17 tion administered by the American Arbitration Asso18 ciation under its Commercial Arbitration Rules, and

19 judgment on the award may be rendered by the arbi20 trators may be entered in any court having jurisdic21 tion thereof.

22 ‘‘(2) FINDINGS.—The arbitrator’s findings shall

23 be confidential and shall not provide any precedent

24 for the determination of rates, except as to the par25 ties involved.
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1 ‘‘(3) DURATION OF DETERMINATION.—In any

2 arbitration proceeding initiated under this sub3 section, the arbitrator’s determination of a fair and

4 reasonable license fee for the performance of

5 nondramatic musical works in the repertoire of the

6 performing rights society shall apply for a period of

7 not less than 3 years nor more than 5 years after

8 the date of the arbitrator’s determination.

9 ‘‘(b) ACCESS TO LICENSING INFORMATION AND REP10 ERTOIRE.—

11 ‘‘(1) IN GENERAL.—Performing rights societies

12 shall make available, free of charge, to all interested

13 persons, online computer access to copyright and li14 censing information for each nondramatic musical

15 work in its repertoire which is published or per16 formed, without regard to whether the work is iden17 tified in the society’s survey of music use. Such in18 formation shall, for each such nondramatic musical

19 work, identify the work by the title of the work; the

20 name of the writer; the name, address, and tele21 phone number of the publisher; when the work will

22 enter the public domain, if determinable; and the

23 names of any artists known by the society to have

24 recorded the work, to the extent such artist informa25 tion is tracked by the society for any purpose other
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1 than this section. Such online computer access shall

2 permit the efficient review of multiple musical works

3 consistent with reasonably available technology.

4 ‘‘(2) DIRECTORY.—Each performing rights so5 ciety shall make available at its reproduction cost,

6 not including the cost of maintaining the database

7 or any other overhead, not less frequently than semi8 annually, a printed directory or CD ROM directory

9 of each title in its repertoire, at the choice of the

10 music user, as of the date which is not more than

11 30 days before the date on which the directory is

12 published, containing the information under para13 graph (1).’’.

14 (2) TECHNICAL AND CONFORMING AMEND15 MENT.—The table of sections for chapter 1 of title

16 17, United States Code, is amended by adding after

17 the item relating to section 120 the following:

‘‘121. Arbitration between general music users and performing rights societies;

availability of repertoire.’’.

18 (b) RESTRICTIONS ON INFRINGEMENT ACTIONS.—

19 Section 504 of title 17, United States Code, is amended

20 by adding at the end thereof the following new subsection:

21 ‘‘(d) RESTRICTIONS.—No fee for a license may be

22 charged and no action may be instituted, maintained, or

23 supported by the society for the public performance of a

24 nondramatic musical work in a society’s repertoire, that
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1 is not identified and documented as required under section

2 121, without regard to whether the nondramatic musical

3 work has been published or performed, if a good faith ef4 fort to search the repertoire of the performing rights soci5 ety as provided under section 121 has been made.’’.

6 SEC. 3. RADIO PER PROGRAMMING PERIOD LICENSE.

7 Section 504 of title 17, United States Code, as

8 amended by section 2 of this Act, is further amended by

9 adding at the end thereof the following new subsection:

10 ‘‘(f) RADIO PER PROGRAMMING PERIOD LICENSE.—

11 ‘‘(1) IN GENERAL.—Each performing rights so12 ciety shall offer, to any radio broadcaster that so re13 quests, a per programming period license to perform

14 nondramatic musical works in the repertoire of the

15 performing rights society. Such license shall be of16 fered on reasonable terms and conditions that pro17 vide an economically and administratively viable al18 ternative to the blanket license offered by the society

19 to radio broadcasters for all such broadcasters.

20 ‘‘(2) PRICE OF PER PROGRAMMING PERIOD LI21 CENSE.—

22 ‘‘(A) The total price of a per programming

23 period license described under paragraph (1)—

24 ‘‘(i) shall include separate components

25 for incidental and feature performances,
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1 with the incidental performance component

2 to be independent of the quantity of such

3 performances by the broadcaster and not

4 to exceed the relative value the performing

5 rights society assigns to such performances

6 in its distribution of royalties; and

7 ‘‘(ii) shall vary between the incidental

8 performance component, for a broadcaster

9 that makes only incidental performances of

10 music in the society’s repertoire, and the

11 fee that would be payable under the blan12 ket license offered to radio broadcasters, in

13 direct proportion to the percentage of the

14 broadcaster’s revenue attributable to pro15 gramming periods containing feature per16 formances of nondramatic musical works

17 in the society’s repertoire compared to the

18 industry average percentage of revenue at19 tributable to programming periods contain20 ing feature performances of such musical

21 works.

22 ‘‘(B) A nondramatic musical work shall

23 not be considered in calculating any per pro24 gramming period license fee under this sub25 section, if the performance of such work—
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1 ‘‘(i) has been licensed directly, at the

2 source, or other than by the society; or

3 ‘‘(ii) constitutes fair use or is other4 wise exempt from liability under this title.

5 ‘‘(3) ADMINISTRATION OF LICENSE.—Com6 mencing on January 1, 1998, the performance of

7 nondramatic musical works by a broadcaster under

8 any per programming period license shall be deter9 mined on the basis of statistically reliable sampling

10 or monitoring by the performing rights society, and

11 the society may not require the broadcaster to report

12 such performances to the society. The society shall

13 provide the broadcaster with a report detailing the

14 results of such sampling or monitoring, identifying

15 each programming period containing the perform16 ance of nondramatic musical works in the society’s

17 repertoire and the nondramatic musical works in the

18 society’s repertoire performed during each such pe19 riod.

20 ‘‘(4) IMPLEMENTATION.—Any radio broad21 caster entitled to a per programming period license

22 under this subsection may bring an action to require

23 compliance with this subsection in an appropriate

24 United States district court, including any district

25 court established by court order or statute as a
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1 court that resolves disputes, with respect to license

2 rates, that may arise between performing rights soci3 eties and persons who perform musical works in the

4 society’s repertoire.

5 ‘‘(5) DEFINITIONS.—As used in this sub6 section—

7 ‘‘(A) the term ‘blanket license’ means a li8 cense provided by a performing rights society

9 that authorizes the unlimited performance of

10 musical works in the society’s repertoire, for a

11 fee that does not vary with the quantity of per12 formances of musical works in the society’s rep13 ertoire, or any other license with comparable

14 economic effect;

15 ‘‘(B) the term ‘incidental’ as applied to

16 performances shall include commercial jingles

17 not exceeding 60 seconds in duration, bridges,

18 themes or signatures, arrangements of works in

19 the public domain, and background music, in20 cluding music used in conjunction with sporting

21 events; and

22 ‘‘(C) the term ‘programming period’ means

23 any 15 minute period of radio broadcasting

24 commencing on the hour, or at 15, 30, or 45

25 minutes past the hour.’’.
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1 SEC. 4. RELIGIOUS SERVICE EXEMPTION.

2 Section 110(3) of title 17, United States Code, is

3 amended by inserting after ‘‘religious assembly’’ the fol4 lowing: ‘‘the transmission of such services, whether live or

5 recorded, or the recording of copies or phonorecords of a

6 transmission program embodying such services in their en7 tirety, if there is no commercial advertisement or commer8 cial sponsor within the program.’’.

9 SEC. 5. CONFORMING AMENDMENTS RELATING TO DEFINI10 TIONS.

11 (a) PERFORMING RIGHTS SOCIETY.—Section 101 of

12 title 17, United States Code, is amended by inserting after

13 the undesignated paragraph relating to the definition of

14 ‘‘perform’’ the following:

15 ‘‘A ‘performing rights society’ is an association,

16 corporation, or other entity that licenses the public

17 performance of nondramatic musical works on behalf

18 of copyright owners of such works, such as the

19 American Society of Composers, Authors, and Pub20 lishers, Broadcast Music, Inc., and SESAC, Inc. The

21 repertoire of a performing rights society consists of

22 those works for which the society provides licenses

23 on behalf of the owners of copyright in the works.’’.

24 (b) GENERAL MUSIC USER.—Section 101 of title 17,

25 United States Code, is amended by inserting after the un-
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1 designated paragraph relating to the definition of ‘‘fixed’’

2 the following:

3 ‘‘A ‘general music user’ is any person who per4 forms musical works publicly but is not engaged in

5 the transmission of musical works to the general

6 public or to subscribers through broadcast, cable,

7 satellite, or other transmission. For purposes of this

8 paragraph, transmissions within a single commercial

9 establishment or within establishments under com10 mon ownership or control are not transmissions to

11 the general public.’’.

12 (c) LOUDSPEAKER.—Section 101 of title 17, United

13 States Code, is amended by inserting after the undesig14 nated paragraph relating to the definition of ‘‘Literary

15 works’’ the following:

16 ‘‘A ‘loudspeaker’ is any device or self contained

17 collection of devices that converts electronic signals

18 to audible sound.’’.

Æ