II

103D CONGRESS

2D SESSION S. 2515

To amend title 17, United States Code, to exempt business establishments

from copyright fees for the public performance of nondramatic musical

works, to provide for binding arbitration in royalty disputes involving

performing rights societies, to ensure computer access to music repertoire, and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 6 (legislative day, SEPTEMBER 12), 1994

Mr. BROWN 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, to exempt business

establishments from copyright fees for the public performance of nondramatic musical works, to provide for

binding arbitration in royalty disputes involving performing rights societies, to ensure computer access to music

repertoire, 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 ‘‘Fairness in Musical

5 Licensing Act of 1994’’.
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1 SEC. 2. BUSINESS EXEMPTION.

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

3 amended to read as follows:

4 ‘‘(5) communication of a transmission embody5 ing a performance or display of a work by electronic

6 players, or by the public reception of a broadcast,

7 cable or satellite transmission on a receiving appara8 tus, in any commercial establishment, the perform9 ance of which is incidental to the main purpose of

10 the commercial establishment, unless—

11 ‘‘(A) an admission charge is made to see

12 or hear the transmission; or

13 ‘‘(B) any other public performance or dis14 play of the works implicated in such trans15 mission are not properly licensed.’’.

16 SEC. 3. BINDING ARBITRATION OF RATE DISPUTES INVOLV17 ING PERFORMING RIGHTS SOCIETIES; AC18 CESS TO REPERTOIRE.

19 (a) IN GENERAL.—Section 504 of title 17, United

20 States Code, is amended by adding at the end thereof the

21 following new subsection:

22 ‘‘(d) PERFORMING RIGHTS SOCIETIES; BINDING AR23 BITRATION AND REPERTOIRE.—(1)(A) If a user of music

24 and a performing rights society are unable to agree on

25 the appropriate fee to be paid for the user’s past or future

26 performance of music in the performing rights society’s
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1 repertory, either party shall be entitled to binding arbitra2 tion of such disagreement pursuant to the rules of the

3 American Arbitration Association. The arbitrator in such

4 binding arbitration shall determine a fair and reasonable

5 fee for the user’s past or future performance of the music

6 in such society’s repertory.

7 ‘‘(B) In any civil action for infringement of the right

8 granted in section 106(4) involving a nondramatic musical

9 work that is licensed by a performing rights society, where

10 the defendant admits prior use of music licensed by the

11 performing rights society but contests the amount of the

12 license fee demanded for such use by such society, the dis13 pute may, if requested by either party, be submitted to

14 court annexed arbitration under section 652(e) of title 28.

15 In such arbitration proceeding, the arbitrator shall deter16 mine the full and entire amount owed by the defendant

17 to the performing rights society for all past use of music

18 licensed by such society. Such amount shall not exceed

19 what the arbitrator determines would have been a fair and

20 reasonable license fee for performance of the music at

21 issue, at the time such performance was made.

22 ‘‘(C) In any arbitration proceeding initiated under

23 this section, the arbitrator may also determine a fair and

24 reasonable license fee for performance by the music using

25 part of the music licensed by the performing rights society
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1 for a period not to exceed 5 years after the date of the

2 arbitrator’s determination.

3 ‘‘(2) Performing rights societies and other organiza4 tions authorized to license nondramatic musical works for

5 public performances shall make available, free of charge,

6 online computer access to their respective repertoires.

7 Such access shall include information regarding—

8 ‘‘(A) the title of the work;

9 ‘‘(B) the name, address, and telephone number

10 of the author and the copyright owner (if different);

11 ‘‘(C) the date the copyrighted work will enter

12 the public domain; and

13 ‘‘(D) the names of any artists known to have

14 performed the work.’’.

15 (b) ACTIONS THAT SHALL BE REFERRED TO ARBI16 TRATION.—Section 652 of title 28, United States Code,

17 is amended by adding the following:

18 ‘‘(e) ACTIONS THAT SHALL BE REFERRED TO ARBI19 TRATION.—In any civil action for infringement of the

20 right granted in section 106(4) of title 17 involving a

21 nondramatic musical work that is licensed by a performing

22 rights society, where the defendant admits prior use of

23 music licensed by the performing rights society but con24 tests the amount of the license fee demanded for such use

25 by such society, the district court may, if requested by ei-
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1 ther party, refer the dispute to arbitration. Each district

2 court shall establish procedures by local rule authorizing

3 the use of arbitration under this subsection.’’.

4 SEC. 4. PER PROGRAMMING PERIOD LICENSE.

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

6 amended by section 3 of this Act, is further amended by

7 adding at the end thereof the following new subsection:

8 ‘‘(e) PERIOD LICENSES.—

9 ‘‘(1) IN GENERAL.—In any case in which a

10 nondramatic musical work is licensed by a perform11 ing rights society, the performing rights society shall

12 offer a per programming period license to any radio

13 or television broadcaster that requests such a li14 cense. Such license shall be offered on terms and

15 conditions that provide an economically and adminis16 tratively viable alternative to blanket licenses.

17 ‘‘(2) PRICE OF PERIOD LICENSE.—(A) The

18 total price of a per programming period license de19 scribed in paragraph (1) shall—

20 ‘‘(i) include separate components for inci21 dental and feature performances;

22 ‘‘(ii) be no higher than the fee that would

23 be payable under a blanket license offered to

24 broadcasters in the same industry; and
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1 ‘‘(iii) be directly proportional to the broad2 caster’s actual use of the society’s repertoire.

3 ‘‘(B) The fee for incidental public performances

4 shall reflect the value of such uses to the broad5 caster and the relative value which the performing

6 rights society assigns in its distribution of royalties

7 for such incidental public performances.

8 ‘‘(C) Nondramatic musical compositions that

9 have been licensed directly or at the source, or whose

10 performance constitutes fair use, shall not be consid11 ered in calculating any per programming period li12 cense fee under this subsection.’’.

13 SEC. 5. ACCESS TO REPERTOIRE.

14 Section 504 of title 17, United States Code, is

15 amended by adding at the end the following:

16 ‘‘(e) COMPUTER ACCESS TO MUSICAL REP17 ERTOIRE.—Performing rights societies and other organi18 zations authorized to license nondramatic musical works

19 for public performances shall make available, free of

20 charge, to licenses or those negotiating licenses, online

21 computer access to its entire repertoire. Such access shall

22 include information regarding the title of the work, the

23 name, address, and telephone number of the author and

24 the copyright owner (if different), and the names of any

25 artists known to have performed the work.’’.
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1 SEC. 6. ANNUAL REPORT.

2 No later than March 1 of each year the Antitrust

3 Division of the Department of Justice shall submit a writ4 ten report to the Congress on the activities of the Depart5 ment during the preceding calendar year relating to the

6 Department’s continuing supervision and enforcement of

7 the American Society of Composers, Authors, and Publish8 ers and the Broadcast Music, Inc. consent decrees. Such

9 report shall include a description of all issues raised or

10 complaints filed with the Department relating to the oper11 ations of performing rights societies, and a summary of

12 the Department’s actions or investigations undertaken by

13 the Department in response.

14 SEC. 7. CONFORMING AMENDMENT.

15 Section 101 of title 17, United States Code, is

16 amended by inserting after the undesignated paragraph

17 relating to the definition of ‘‘perform’’ the following new

18 paragraph:

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

20 corporation or other entity that licenses the public

21 performance of nondramatic musical works on behalf

22 of copyright owners of such works, such as the

23 American Society of Composers, Authors, and Pub24 lishers; Broadcast Music, Inc.; and SESAC, Inc.’’.

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