I 

109TH CONGRESS 

2D SESSION H. R. 5361 

To harmonize rate setting standards for copyright licenses under sections 

112 and 114 of title 17, United States Code, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 11, 2006 

Mr. BERMAN (for himself and Mrs. BONO) introduced the following bill; which 

was referred to the Committee on the Judiciary 

A BILL 

To harmonize rate setting standards for copyright licenses 

under sections 112 and 114 of title 17, United States 

Code, 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 ‘‘Platform Equality and 

5 Remedies for Rights Holders in Music Act of 2006’’ or 

6 the ‘‘Perform Act of 2006’’ . 

7 SEC. 2. RATE SETTING STANDARDS. 

8 (a) SECTION 112 LICENSES.—Section 112(e)(4) of 

9 title 17, United States Code, is amended in the third sen10 tence by striking ‘‘fees that would have been negotiated 


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1 in the marketplace between a willing buyer and a willing 

2 seller’’ and inserting ‘‘the fair market value of the rights 

3 licensed under this subsection’’. 

4 (b) SECTION 114 LICENSES.—Section 114(f) of title 

5 17, United States Code, is amended— 

6 (1) by striking paragraph (1); 

7 (2) by redesignating paragraphs (2), (3), (4), 

8 and (5) as paragraphs (1), (2), (3), and (4), respec9 tively; and 

10 (3) in paragraph (1) (as redesignated under 

11 this subsection)— 

12 (A) in subparagraph (A), by striking all 

13 after ‘‘Proceedings’’ and inserting ‘‘under chap14 ter 8 shall determine reasonable rates and 

15 terms of royalty payments for eligible trans16 missions during the 5-year period beginning on 

17 January 1 of the second year following the year 

18 in which the proceedings are to be commenced, 

19 and on January 1 of every 5-year period there20 after, except when a different transitional pe21 riod is provided under section 6(b)(3) of the 

22 Copyright Royalty and Distribution Reform Act 

23 of 2004, or such other period as the parties 

24 may agree.’’; 

25 (B) in subparagraph (B)— 


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1 (i) in the first sentence, by striking 

2 ‘‘affected by this paragraph’’ and inserting 

3 ‘‘under this section’’; 

4 (ii) in the second sentence, by striking 

5 ‘‘nonsubscription’’; and 

6 (iii) in the third sentence— 

7 (I) by striking ‘‘transmissions by 

8 eligible nonsubscription services and 

9 new subscription’’ and inserting ‘‘eli10 gible transmission’’; and 

11 (II) by striking ‘‘rates and terms 

12 that would have been negotiated in 

13 the marketplace between a willing 

14 buyer and a willing seller’’ and insert15 ing ‘‘the fair market value of the 

16 rights licensed under this section’’; 

17 (iv) in the fourth sentence, by striking 

18 ‘‘base its’’ and inserting ‘‘base their’’; 

19 (v) in clause (i), by striking ‘‘and’’ 

20 after the semicolon; 

21 (vi) in clause (ii), by striking the pe22 riod and inserting ‘‘; and’’; 

23 (vii) by inserting after clause (ii) the 

24 following: 


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1 ‘‘(iii) the degree to which reasonable 

2 recording affects the potential market for 

3 sound recordings, and the additional fees 

4 that are required to be paid by services for 

5 compensation.’’; and 

6 (viii) in the matter following clause 

7 (ii), by striking ‘‘described in subpara8 graph (A)’’; and 

9 (C) by striking subparagraph (C) and in10 serting the following: 

11 ‘‘(C) The procedures under subparagraphs (A) 

12 and (B) shall also be initiated pursuant to a petition 

13 filed by any copyright owners of sound recordings or 

14 any transmitting entity indicating that a new type of 

15 service on which sound recordings are performed is 

16 or is about to become operational, for the purpose 

17 of determining reasonable terms and rates of royalty 

18 payments with respect to that new type of service 

19 for the period beginning with the inception of such 

20 new type of service and ending on the date on which 

21 the royalty rates and terms for preexisting subscrip22 tion services, eligible nonsubscription services, or 

23 new subscription services, as the case may be, most 

24 recently determined under subparagraph (A) or (B) 


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1 and chapter 8 expire, or such other period as the 

2 parties may agree. 

3 ‘‘(D) In this paragraph, the term ‘eligible trans4 mission’ means— 

5 ‘‘(i) subscription transmissions by pre6 existing subscription services; 

7 ‘‘(ii) subscription transmissions by pre8 existing satellite digital audio radio services; 

9 ‘‘(iii) eligible nonsubscription trans10 missions; and 

11 ‘‘(iv) transmissions by new subscription 

12 services.’’. 

13 (c) CONTENT PROTECTION.—Section 114(d)(2) of 

14 title 17, United States Code, is amended— 

15 (1) in subparagraph (A)— 

16 (A) in clause (ii), by striking ‘‘and’’ after 

17 the semicolon; 

18 (B) in clause (iii), by adding ‘‘and’’ after 

19 the semicolon; and 

20 (C) by adding after clause (iii) the fol21 lowing: 

22 ‘‘(iv) the transmitting entity takes no 

23 affirmative steps to authorize, enable, 

24 cause, or induce the making of a copy or 

25 phonorecord by or for the transmission reVerDate Aug 31 2005 00:28 May 14, 2006 Jkt 049196 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5361.IH H5361

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1 cipient and uses technology that is reason2 ably available, technologically feasible, and 

3 economically reasonable to prevent the 

4 making of copies or phonorecords embody5 ing the transmission, in whole or in part, 

6 except for reasonable recording as defined 

7 in subsection (j)(10);’’; 

8 (2) in subparagraph (C)— 

9 (A) by striking clause (vi); and 

10 (B) by redesignating clauses (vii) through 

11 (ix) as clauses (vi) through (viii), respectively; 

12 and 

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

14 ‘‘For purposes of subparagraph (A)(iv), the mere offering 

15 of a transmission and accompanying metadata does not 

16 in itself enable the making of a copy or phonorecord. 

17 Nothing in subparagraph (A)(iv) shall preclude or prevent 

18 a performing rights society or a mechanical rights organi19 zation, or any entity owned in whole or in part by, or act20 ing on behalf of, such organizations, from monitoring pub21 lic performances or other uses of copyrighted works con22 tained in such transmissions. Any such organization or en23 tity shall be granted a license on either a gratuitous basis 

24 or for a de minimus fee to cover only the reasonable costs 

25 to the licensor of providing the license, and on reasonable, 


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1 nondiscriminatory terms, to access and retransmit as nec2 essary any content contained in such transmissions pro3 tected by content protection or similar technologies, if 

4 such licenses are for purposes of carrying out the activities 

5 of such organizations or entities in monitoring the public 

6 performance or other uses of copyrighted works, and such 

7 organizations or entities employ reasonable methods to 

8 protect any such content accessed from further distribu9 tion.’’. 

10 (d) DEFINITION.—Section 114(j) of title 17, United 

11 States Code, is amended— 

12 (1) by redesignating paragraphs (10) through 

13 (15) as paragraphs (11) through (16), respectively; 

14 and 

15 (2) by inserting after paragraph (9) the fol16 lowing: 

17 ‘‘(10)(A) A ‘reasonable recording’ means the 

18 making of a copy or phonorecord of a performance 

19 licensed under this section for private, noncommer20 cial use if technological measures used by the trans21 mitting entity and incorporated into a recording de22 vice— 

23 ‘‘(i) permit automated recording or play24 back based on specific programs, time periods, 

25 or channels as selected by or for the user; 


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1 ‘‘(ii) do not permit automated recording or 

2 playback based on specific sound recordings, al3 bums, or artists; 

4 ‘‘(iii) do not permit the separation of com5 ponent segments of the copyrighted material 

6 contained in the transmission program which 

7 results in the playback of a manipulated se8 quence; and 

9 ‘‘(iv) do not permit the redistribution, re10 transmission, or other exporting of a phono11 record embodying all or part of a performance 

12 licensed under this section from the device by 

13 digital outputs or removable media, unless the 

14 destination device is part of a secure in-home 

15 network that also complies with this paragraph. 

16 ‘‘(B) Nothing in this paragraph prevents a con17 sumer from engaging in non-automated manual re18 cording and playback in a manner that is not an in19 fringement of copyright.’’. 

20 (e) TECHNICAL AND CONFORMING AMENDMENTS.— 

21 (1) SECTION 114.—Section 114(f) of title 17, 

22 United States Code (as amended by subsection (b) 

23 of this section), is further amended— 


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1 (A) in paragraph (1)(B), in the first sen2 tence, by striking ‘‘paragraph (3)’’ and insert3 ing ‘‘paragraph (2)’’; and 

4 (B) in paragraph (4)(C), by striking 

5 ‘‘under paragraph (4)’’ and inserting ‘‘under 

6 paragraph (3)’’. 

7 (2) CHAPTER 8.—(A) Section 801(b) of title 

8 17, United States Code, is amended— 

9 (i) in paragraph (1), by striking 

10 ‘‘114(1)(B), 115,’’ and inserting ‘‘115’’; and 

11 (ii) in paragraph (7)(B), by striking 

12 ‘‘114(f)(3)’’ and inserting ‘‘114(f)(2)’’. 

13 (B) Section 803(c)(2)(E)(i)(II) of title 17, 

14 United States Code, is amended— 

15 (i) by striking ‘‘or 114(f)(2)(C)’’; and 

16 (ii) by striking ‘‘114(f)(4)(B)’’ and insert17 ing ‘‘114(f)(3)(B)’’. 

18 (C) Section 804(b)(3)(C) of title 17, United 

19 States Code, is amended— 

20 (i) in clause (i), by striking ‘‘and 

21 114(f)(2)(C)’’; and 

22 (ii) in clause (iv), by striking ‘‘or 

23 114(f)(2)(C), as the case may be’’. 


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1 SEC. 3. REGISTER OF COPYRIGHTS MEETING AND REPORT. 

2 (a) MEETING.—Not later than 60 days after the 

3 Copyright Royalty Judges make their final determination 

4 in Docket No. 2005–1 CRB DTRA, the Register of Copy5 rights shall convene a meeting among affected parties to 

6 discuss whether to recommend creating a new category of 

7 limited interactive services, including an appropriate pre8 mium rate for such services, within the statutory license 

9 contained in section 114 of title 17, United States Code. 

10 (b) REPORT.—Not later than 90 days after the con11 vening of the meeting under subsection (a), the Register 

12 of Copyrights shall submit a report on the discussions at 

13 that meeting to the Committee on the Judiciary of the 

14 Senate and the Committee on the Judiciary of the House 

15 of Representatives. 

Æ 


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