Calendar No. 670

105TH CONGRESS

2D SESSION S. 1720

A BILL

To amend title 17, United States Code, to reform

O

purposes.transmissions of broadcast signals, and for otherthe copyright law with respect to satellite reCTOBER 1 (legislative day, SEPTEMBER 29), 1998

Reported with an amendment
II

Calendar No. 670

105TH CONGRESS

2D SESSION S. 1720

To amend title 17, United States Code, to reform the copyright law with

respect to satellite retransmissions of broadcast signals, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 5, 1998

Mr. HATCH (for himself, Mr. LEAHY, Mr. KOHL, and Mr. JEFFORDS), introduced the following bill; which was read twice and referred to the Committee on the Judiciary

OCTOBER 1 (legislative day, SEPTEMBER 29), 1998

Reported by Mr. HATCH, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

To amend title 17, United States Code, to reform the copyright law with respect to satellite retransmissions of

broadcast signals, 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 ‘‘Copyright Compulsory

5 License Improvement Act’’.
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1 SEC. 2. SECONDARY TRANSMISSIONS BY SATELLITE CAR2 RIERS.

3 Section 119 of title 17, United States Code, is

4 amended—

5 (1) by amending the section heading to read as

6 follows:

7 ‘‘§ 119. Limitations on exclusive rights: Secondary

8 transmissions by satellite carriers’’;

9 and

10 (2) by striking subsection (a) and inserting the

11 following:

12 ‘‘(a) SECONDARY TRANSMISSIONS BY SATELLITE

13 CARRIERS FOR PRIVATE HOME VIEWING.—

14 ‘‘(1) SECONDARY TRANSMISSIONS OF DISTANT

15 AND LOCAL BROADCAST SIGNALS SUBJECT TO STAT16 UTORY LICENSING.—Subject to the provisions of

17 subsections (b) and (c) of this section and section

18 114(d), a secondary transmission of a primary

19 transmission made by a television broadcast station

20 licensed by the Federal Communications Commission

21 or by the Public Broadcasting Service satellite feed

22 and embodying a performance or display of a work

23 shall be subject to statutory licensing under this sec24 tion if—

25 ‘‘(A) the secondary transmission is permis26 sible under the rules, regulations, and author-
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1 izations of the Federal Communications Com2 mission and is made by a satellite carrier to the

3 public for private home viewing; and

4 ‘‘(B) the carrier makes a direct or indirect

5 charge for each retransmission service to each

6 household receiving the secondary transmission

7 or to a distributor that has contracted with the

8 carrier for direct or indirect delivery of the sec9 ondary transmission to the public for private

10 home viewing.

11 ‘‘(2) SUBMISSION OF SUBSCRIBER LISTS TO

12 TELEVISION BROADCAST STATIONS.—

13 ‘‘(A) INITIAL LISTS.—A satellite carrier

14 that makes secondary transmissions of a pri15 mary transmission of a television broadcast sta16 tion pursuant to paragraph (1) shall, within 90

17 days after commencing such secondary trans18 missions, submit to that television broadcast

19 station—

20 ‘‘(i) a list identifying all subscribers

21 within the designated market area of that

22 television broadcast station to whom the

23 satellite carrier has made such secondary

24 transmissions; and
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1 ‘‘(ii) a list of all television broadcast

2 stations whose primary transmissions have

3 been transmitted by the satellite carrier to

4 those subscribers during that 90-day pe5 riod.

6 ‘‘(B) SUBSEQUENT LISTS.—After the sub7 mission of the lists under subparagraph (A),

8 the satellite carrier shall, on the 15th day of

9 each month, submit to each television broadcast

10 station—

11 ‘‘(i) a list, which shall be dated, that

12 identifies the name of any subscriber de13 scribed in subparagraph (A) who has been

14 added or dropped since the last submission

15 under this paragraph; and

16 ‘‘(ii) a list of all television broadcast

17 stations whose primary transmissions have

18 been added or dropped by the satellite car19 rier since the last submission under this

20 paragraph

21 ‘‘(C) IDENTIFYING INFORMATION.—(i)

22 Each list of subscribers under this paragraph

23 shall include the name of each subscriber, to24 gether with the subscriber’s home address,

25 which shall include the street address or rural
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1 route as the case may be, city, county, State,

2 and zip code and, if different from the subscrib3 er’s home address, the location of the subscrib4 er’s satellite receiving dish to which the second5 ary transmissions are made, identified by street

6 address or rural route as the case may be, city,

7 county, State, and zip code.

8 ‘‘(ii) Each list of television broadcast sta9 tions under this paragraph shall include the

10 station’s call letters and community of license.

11 ‘‘(iii) Subscriber information submitted

12 under this paragraph may be used only for pur13 poses of monitoring compliance by the satellite

14 carrier with this section.

15 ‘‘(3) PENALTIES FOR NONCOMPLIANCE WITH

16 ACCOUNTING AND ROYALTY REQUIREMENTS.—Not17 withstanding the provisions of paragraph (1), the

18 willful or repeated secondary transmission to the

19 public by a satellite carrier of a primary trans20 mission made by a television broadcast station li21 censed by the Federal Communications Commission

22 or by the Public Broadcasting Service satellite feed

23 and embodying a performance or display of a work

24 is actionable as an act of infringement under section

25 501, and is fully subject to the remedies provided by
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1 sections 502 through 506 and 509, if the satellite

2 carrier has not deposited the statement of account

3 and royalties fees required by subsection (b), or has

4 failed to make the submissions to networks required

5 by paragraph (2).

6 ‘‘(4) PENALTIES FOR WILLFUL ALTERATIONS

7 OF PROGRAMMING.—Notwithstanding the provisions

8 of paragraph (1), the secondary transmission to the

9 public by a satellite carrier of a primary trans10 mission made by a television broadcast station li11 censed by the Federal Communications Commission

12 or by the Public Broadcasting Service satellite feed

13 and embodying a performance or display of a work

14 is actionable as an act of infringement under section

15 501, and is fully subject to the remedies provided by

16 section 502 through 506 and sections 509 and 510,

17 if the content of the particular program in which the

18 performance or display is embodied, or any commer19 cial advertising or station announcement transmitted

20 by the primary transmitter during, or immediately

21 before or after, the transmission of such program, is

22 in any way willfully altered by the satellite carrier

23 through changes, deletions, or additions, or is com24 bined with programming from any other broadcast

25 signal.
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1 ‘‘(5) PENALTIES FOR DISCRIMINATION AGAINST

2 DISTRIBUTOR.—Notwithstanding the provisions of

3 paragraph (1), the willful or repeated secondary

4 transmission to the public by a satellite carrier of

5 a primary transmission made by a television broad6 cast station licensed by the Federal Communications

7 Commission or by the Public Broadcasting Service

8 satellite feed and embodying the performance or dis9 play of a work is actionable as an act of infringe10 ment under section 501, and is fully subject to the

11 remedies provided by sections 502 through 506 and

12 509, if the satellite carrier unlawfully discriminates

13 against a distributor.

14 ‘‘(6) LICENSE LIMITED TO SECONDARY TRANS15 MISSIONS TO HOUSEHOLDS IN THE UNITED

16 STATES.—The statutory license created by this sec17 tion shall apply only to secondary transmissions to

18 households located in the United States.’’.

19 SEC. 3. STATUTORY LICENSE FOR SATELLITE CARRIERS.

20 Section 119 of title 17, United States Code, is

21 amended by striking subsection (b) and inserting the fol22 lowing:

23 ‘‘(b) STATUTORY LICENSE FOR SECONDARY TRANS24 MISSIONS FOR PRIVATE HOME VIEWING.—
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1 ‘‘(1) DEPOSIT OF ACCOUNTS AND FEES WITH

2 REGISTER OF COPYRIGHTS.—A satellite carrier

3 whose secondary transmissions are subject to statu4 tory licensing under subsection (a) shall, on a semi5 annual basis, deposit with the Register of Copy6 rights, in accordance with requirements that the

7 Register shall prescribe by regulation—

8 ‘‘(A) a statement of account, covering the

9 preceding 6-month period, specifying the names

10 and locations of all television broadcast stations

11 whose signals were retransmitted, and listing

12 the Public Broadcasting Service satellite feed, if

13 carried, at any time during that period, to sub14 scribers for private home viewing, the total

15 number of subscribers that received such re16 transmissions, and other such data as the Reg17 ister of Copyrights may from time to time pre18 scribe by regulation; and

19 ‘‘(B) a royalty fee for that 6-month period

20 for each television broadcast station whose pri21 mary transmission was retransmitted beyond

22 the local market of the station, and for the

23 Public Broadcasting Service satellite feed, if

24 carried, computed by multiplying the total num25 ber of subscribers receiving the secondary
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1 transmission, and the number of subscribers re2 ceiving a secondary transmission of the Public

3 Broadcasting Service satellite feed, during each

4 calendar month by the rate in effect for tele5 vision broadcast stations as determined under

6 chapter 8 of this title and section 8(c) of the

7 Copyright Compulsory License Improvement

8 Act.

9 ‘‘(2) INVESTMENT OF FEES.—The Register of

10 Copyrights shall receive all fees deposited under this

11 section and, after deducting the reasonable costs in12 curred by the Copyright Office under this section

13 (other than the costs deducted under paragraph

14 (4)), shall deposit the balance in the Treasury of the

15 United States, in such manner as the Secretary of

16 the Treasury directs. All funds held by the Secretary

17 of the Treasury shall be invested in interest-bearing

18 securities of the United States for later distribution

19 with interest by the Copyright Royalty Adjudication

20 Board as provided in this title. The Register may,

21 four or more years after the close of any calendar

22 year, close out the account for royalty payments

23 made under this section for that calendar year (in24 cluding payments made under this section as in ef25 fect before the effective date of the Copyright Com-
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1 pulsory License Improvement Act), and may treat

2 any funds remaining in such account and any subse3 quent deposits that would otherwise be attributable

4 to that calendar year as attributable to the calendar

5 year in which the account is closed.

6 ‘‘(3) PERSONS TO WHOM FEES ARE DISTRIB7 UTED.—The royalty fees deposited under paragraph

8 (2) shall, in accordance with the procedures provided

9 in paragraph (4), be distributed to those copyright

10 owners whose works were included in a secondary

11 transmission for private home viewing made by a

12 satellite carrier during the applicable 6-month ac13 counting period and who file a claim with the Board

14 under paragraph (4).

15 ‘‘(4) PROCEDURES FOR DISTRIBUTION.—The

16 royalty fees deposited under paragraph (2) shall be

17 distributed in accordance with the following proce18 dures:

19 ‘‘(A) FILING OF CLAIMS FOR FEES.—Dur20 ing the month of July in each year, each person

21 claiming to be entitled to statutory license fees

22 for secondary transmissions for private home

23 viewing shall file a claim with the Copyright

24 Royalty Adjudication Board, in accordance with

25 requirements that the Board shall prescribe by
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1 regulation. For purposes of this paragraph, any

2 claimants may agree among themselves as to

3 the proportionate division of statutory license

4 fees among them, may lump their claims to5 gether and file them jointly or as a single claim,

6 or may designate a common agent to receive

7 payment on their behalf.

8 ‘‘(B) DETERMINATION OF CONTROVERSY;

9 DISTRIBUTIONS.—After the first day of August

10 of each year, the Copyright Royalty Adjudica11 tion Board shall determine whether there exists

12 a controversy concerning the distribution of roy13 alty fees. If the Board determines that no such

14 controversy exists, the Board shall, after de15 ducting reasonable administrative costs under

16 this paragraph, distribute such fees to the copy17 right owners entitled to receive them, or to their

18 designated agents. If the Board finds the exist19 ence of a controversy, the Board shall, pursuant

20 to chapter 8 of this title, conduct a proceeding

21 to determine the distribution of royalty fees.

22 ‘‘(C) WITHHOLDING OF FEES DURING

23 CONTROVERSY.—During the pendency of any

24 proceeding under this subsection, the Copyright

25 Royalty Adjudication Board shall withhold from
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1 distribution an amount sufficient to satisfy all

2 claims with respect to which a controversy ex3 ists, but shall have discretion to proceed to dis4 tribute any amounts that are not in con5 troversy. The action of the Board to distribute

6 royalty fees may precede the declaration of a

7 controversy if all parties to the proceeding file

8 a petition with the Board requesting such dis9 tribution, except that such amount may not ex10 ceed 50 percent of the amounts on hand at the

11 time of the request.’’.

12 SEC. 4. DEFINITIONS.

13 Section 119 of title 17, United States Code, is

14 amended by striking subsection (d) and inserting the fol15 lowing:

16 ‘‘(d) DEFINITIONS.—As used in this section—

17 ‘‘(1) DESIGNATED MARKET AREA.—The term

18 ‘designated market area’ has the meaning given that

19 term in section 337(g) of the Communications Act

20 of 1934.

21 ‘‘(2) DISTRIBUTOR.—The term ‘distributor’

22 means an entity which contracts to distribute sec23 ondary transmissions from a satellite carrier and, ei24 ther as a single channel or in a package with other

25 programming, provides the secondary transmission
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1 either directly to individual subscribers for private

2 home viewing or indirectly through other program

3 distribution entities.

4 ‘‘(3) LOCAL MARKET.—The ‘local market’ for a

5 television broadcast station has the meaning given

6 that term in section 337(g) of the Communications

7 Act of 1934.

8 ‘‘(4) PRIMARY TRANSMISSION.—The term ‘pri9 mary transmission’ has the meaning given that term

10 in section 111(f) of this title.

11 ‘‘(5) PRIVATE HOME VIEWING.—The term ‘pri12 vate home viewing’ means the viewing, for private

13 use in a household by means of satellite reception

14 equipment which is operated by an individual in that

15 household and which serves only such household, of

16 a secondary transmission delivered by a satellite car17 rier of a primary transmission of a television station

18 licensed by the Federal Communications Commission

19 or of the Public Broadcasting Service satellite feed.

20 ‘‘(6) PUBLIC BROADCASTING SERVICE SAT21 ELLITE FEED.—The term ‘Public Broadcasting

22 Service satellite feed’ means the national satellite

23 feed distributed by the Public Broadcasting Service

24 (other than the transmissions that may not be

25 encrypted under section 705(c) of the Communica-
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1 tions Act of 1934), consisting of educational and in2 formational programming intended for private home

3 viewing, to which the Public Broadcasting Service

4 holds national terrestrial broadcast rights.

5 ‘‘(7) SATELLITE CARRIER.—The term ‘satellite

6 carrier’ means an entity that uses the facilities of a

7 satellite or satellite service licensed by the Federal

8 Communications Commission, and operates in the

9 Fixed-Satellite Service under part 25 of title 47,

10 Code of Federal Regulations (as in effect on Feb11 ruary 1, 1998), or the Direct Broadcast Satellite

12 Service under part 100 of title 47, Code of Federal

13 Regulations (as in effect on February 1, 1998), to

14 establish and operate a channel of communications

15 for point-to-multipoint distribution of television sta16 tion signals, and that owns or leases a capacity or

17 service on a satellite in order to provide such point18 to-multipoint distribution, except to the extent that

19 such entity provides such distribution pursuant to

20 tariff under the Communications Act of 1934, other

21 than for private home viewing.

22 ‘‘(8) SECONDARY TRANSMISSION.—The term

23 ‘secondary transmission’ means the further trans24 mitting of a primary transmission simultaneously

25 with the primary transmission.
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1 ‘‘(9) SUBSCRIBER.—The term ‘subscriber’

2 means an individual who receives a secondary trans3 mission service for private home viewing by means

4 of a secondary transmission from a satellite carrier

5 and pays a fee for the service, directly or indirectly,

6 to the satellite carrier or to a distributor.

7 ‘‘(10) TELEVISION BROADCAST STATION.—The

8 term ‘television broadcast station’ means an over9 the-air, commercial or noncommercial television

10 broadcast station licensed by the Federal Commu11 nications Commission under subpart E of part 73 of

12 title 47, Code of Federal Regulations.’’.

13 SEC. 5. EXCLUSIVITY OF SECTION 119 OF TITLE 17, UNITED

14 STATES CODE.

15 Section 119 of title 17, United States Code, is

16 amended by adding at the end the following:

17 ‘‘(e) EXCLUSIVITY FOR THIS SECTION WITH RE18 SPECT TO SECONDARY TRANSMISSIONS OF TELEVISION

19 STATIONS BY SATELLITE TO MEMBERS OF THE PUB20 LIC.—No provision of section 111 of this title or any other

21 law (other than this section) shall be construed to contain

22 any authorization, exemption, or license through which

23 secondary transmissions by satellite carriers for private

24 home viewing of programming contained in a primary
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1 transmission may be made without obtaining the consent

2 of the copyright owner.’’.

3 SEC. 6. CONFORMING AMENDMENT.

4 The table of contents for chapter 1 of title 17, United

5 States Code, is amended by striking the item relating to

6 section 119 and inserting the following:

‘‘119. Limitations on exclusive rights: Secondary transmissions by satellite carriers.’’.

7 SEC. 7. COPYRIGHT ROYALTY ADJUDICATION BOARD.

8 (a) ESTABLISHMENT AND FUNCTIONS.—Chapter 8

9 of title 17, United States Code, is amended to read as

10 follows:

11 ‘‘CHAPTER 8—COPYRIGHT ROYALTY

12 ADJUDICATION BOARD

‘‘Sec.

‘‘801. Copyright Royalty Adjudication Board: establishment.

‘‘802. Membership and qualifications of the Board.

‘‘803. Selection of administrative copyright judges.

‘‘804. Independence of the Board.

‘‘805. Removal and sanction of administrative copyright judges.

‘‘806. Functions.

‘‘807. Factors for determining royalty fees.

‘‘808. Institution of proceedings.

‘‘809. Conduct of proceedings.

‘‘810. Judicial review.

‘‘811. Administrative matters.

‘‘812. Rule of construction.

13 ‘‘§ 801. Copyright Royalty Adjudication Board: estab14 lishment

15 ‘‘There is hereby established within the Copyright Of16 fice the Copyright Royalty Adjudication Board (herein17 after referred to in this chapter as the ‘Board’).
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1 ‘‘§ 802. Membership and qualifications of the Board

2 ‘‘(a) MEMBERSHIP.—

3 ‘‘(1) IN GENERAL.—The Board shall consist of

4 1 full-time chief administrative copyright judge, and

5 such part-time administrative copyright judges as

6 the Librarian of Congress, upon the recommendation

7 of the Register of Copyrights, finds necessary to

8 conduct the business of the Board in a timely man9 ner. At no time shall the number of authorized ad10 ministrative copyright judges be less than 3 or more

11 than 5.

12 ‘‘(2) PART-TIME ADMINISTRATIVE COPYRIGHT

13 JUDGES.—Chapter 34 of title 5 shall not apply to a

14 part-time administrative copyright judge. For pur15 poses of this subsection the Librarian of Congress

16 shall promulgate regulations relating to part-time

17 employment of administrative copyright judges.

18 ‘‘(b) QUALIFICATIONS.—

19 ‘‘(1) CHIEF ADMINISTRATIVE COPYRIGHT

20 JUDGE.—The chief administrative copyright judge

21 shall be an attorney with 10 or more years of legal

22 practice with demonstrated experience in administra23 tive hearings or court trials and demonstrated

24 knowledge of copyright law.

25 ‘‘(2) OTHER ADMINISTRATIVE COPYRIGHT

26 JUDGES.—Each administrative copyright judge,
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1 other than the chief administrative copyright judge,

2 shall be an individual with expertise in the business

3 and economics of industries affected by the actions

4 taken by the Board to carry out its functions.

5 ‘‘(c) TERMS.—(1) The term of each administrative

6 copyright judge (including the chief administrative copy7 right judge) shall be 5 years, except that, of the first ad8 ministrative copyright judges appointed, the Librarian of

9 Congress, upon the recommendation of the Register of

10 Copyrights, shall appoint all but one of them to lesser

11 terms to establish a staggering of terms such that in any

12 calendar year no more than one term is due to expire.

13 ‘‘(2) The term of each administrative copyright judge

14 (including the chief administrative copyright judge) shall

15 begin when the term of the predecessor of that member

16 ends. An individual appointed to fill the vacancy occurring

17 before the expiration of the term for which the predecessor

18 of that individual was appointed shall be appointed for the

19 remainder of that term. When the term of office of a mem20 ber ends, the member may continue to serve until a succes21 sor is selected.

22 ‘‘(d) COMPENSATION.—The compensation of the ad23 ministrative copyright judges shall be governed solely by

24 the provisions of section 5376 of title 5 and such regula25 tions as the Librarian of Congress may adopt that are not
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1 inconsistent with that section. The compensation of the

2 administrative copyright judges shall not be subject to any

3 regulations adopted by the Office of Personnel Manage4 ment pursuant to its authority under section 5376(b)(1)

5 of title 5.

6 ‘‘§ 803. Selection of administrative copyright judges

7 ‘‘(a) SELECTION.—(1) The Librarian of Congress,

8 upon the recommendation of the Register of Copyrights,

9 shall select the administrative copyright judges (including

10 the chief administrative copyright judge) among individ11 uals found qualified under section 802(b) who meet the

12 financial conflict of interest under section 805(a). Not13 withstanding any other provision of law and at the discre14 tion of the Librarian, the Librarian shall determine the

15 method of selecting the members.

16 ‘‘(2) Administrative copyright judges previously se17 lected by the Librarian of Congress may be selected to

18 serve additional terms. There shall be no limit on the num19 ber of terms any individual may serve.

20 ‘‘(b) EFFECT OF VACANCY.—In no event shall a va21 cancy in the Board impair the right of the remaining ad22 ministrative copyright judges to exercise all of the powers

23 of the Board.
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1 ‘‘§ 804. Independence of the Board

2 ‘‘(a) IN GENERAL.—The Board shall have independ3 ence in reaching its determinations concerning the adjust4 ment of copyright royalty rates, the distribution of copy5 right royalties, the acceptance or rejection of royalty

6 claims and rate adjustment petitions, and such rulemaking

7 functions as are delegated to it under this title.

8 ‘‘(b) PERFORMANCE APPRAISALS.—Notwithstanding

9 any other provision of law or any regulation of the Library

10 of Congress, no administrative copyright judge shall re11 ceive an annual performance appraisal.

12 ‘‘(c) INCONSISTENT DUTIES BARRED.—No adminis13 trative copyright judge may be assigned duties inconsist14 ent with his or her duties and responsibilities as a admin15 istrative copyright judge.

16 ‘‘§ 805. Removal and sanction of administrative copy17 right judges

18 ‘‘(a) STANDARDS OF CONDUCT.—The Librarian of

19 Congress, upon the recommendation of the Register of

20 Copyrights, shall adopt regulations regarding the stand21 ards of conduct, including financial conflict of interest and

22 restrictions against ex parte communications, which shall

23 govern the administrative copyright judges and the pro24 ceedings under this chapter.

25 ‘‘(b) REMOVAL OR SANCTION.—The Librarian of

26 Congress, upon the recommendation of the Register of
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1 Copyrights, may remove or sanction an administrative

2 copyright judge for violation of the standards of conduct

3 adopted under subsection (a), misconduct, neglect of duty,

4 or any disqualifying physical or mental disability. Any

5 such removal or sanction may be made only after notice

6 and opportunity for hearing, but the Librarian of Con7 gress, upon the recommendation of the Register of Copy8 rights, may suspend the administrative copyright judge

9 during the pendency of such hearing.

10 ‘‘§ 806. Functions

11 ‘‘Subject to the provisions of this chapter, the func12 tions of the Board shall be—

13 ‘‘(1) to make determinations concerning the ad14 justment of reasonable copyright royalty rates for—

15 ‘‘(A) secondary transmissions to the public

16 by a cable system of a primary transmission as

17 provided in section 111;

18 ‘‘(B) the making and distributing of

19 phonorecords by means other than digital pho20 norecord delivery, as provided in section 115;

21 ‘‘(C) secondary transmissions to the public

22 by a satellite carrier of a primary transmission

23 made by a television broadcast station and the

24 Public Broadcasting Service satellite feed as

25 provided in section 119; and
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1 ‘‘(D) each digital audio recording device

2 imported into and distributed in the United

3 States or manufactured and distributed into the

4 United States as provided in section 1004;

5 ‘‘(2) to make determinations as to reasonable

6 rates and terms of royalty payments for—

7 ‘‘(A) the public performance of a sound re8 cording by means of a digital audio trans9 mission as provided in section 114;

10 ‘‘(B) the making and distribution of

11 phonorecords by means of a digital phonorecord

12 delivery as provided in section 115;

13 ‘‘(C) the public performance of nondra14 matic musical works by means of coin-operated

15 phonorecord players as provided in section 116;

16 and

17 ‘‘(D) the use of nondramatic musical works

18 and pictorial, graphic, and sculptural works by

19 public broadcasting entities as provided in sec20 tion 118;

21 ‘‘(3) to accept or reject royalty claims filed

22 under sections 111, 119, and 1007, on the basis of

23 timeliness or the failure to establish the basis for a

24 claim;
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1 ‘‘(4) to determine, in cases where controversy

2 exists, the distribution of royalty fees deposited with

3 the Register of Copyrights under sections 111, 119,

4 and 1003;

5 ‘‘(5) to determine the status of a digital audio

6 recording device or a digital audio interface device

7 under sections 1002 and 1003, as provided in sec8 tion 1010; and

9 ‘‘(6) to engage in such rulemaking as is ex10 pressly provided in sections 111, 114, 115, 118, and

11 119.

12 ‘‘§ 807. Factors for determining royalty fees

13 ‘‘(a) FOR CABLE RATES.—The rates applicable

14 under section 111 shall be calculated solely in accordance

15 with the following provisions:

16 ‘‘(1) The rates established by section

17 111(d)(1)(B) may be adjusted to reflect—

18 ‘‘(A) national monetary inflation or defla19 tion, or

20 ‘‘(B) changes in the average rates charged

21 cable subscribers for the basic service of provid22 ing secondary transmissions to maintain the

23 real constant dollar level of the royalty fee per

24 subscriber which existed as of October 19,

25 1976, except that—
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1 ‘‘(i) if the average rates charged cable

2 system subscribers for the basic service of

3 providing secondary transmissions are

4 changed so that the average rates exceed

5 national monetary inflation, no change in

6 the rates established by section

7 111(d)(1)(B) shall be permitted; and

8 ‘‘(ii) no increase in the royalty fee

9 shall be permitted based on any reduction

10 in the average number of distant signal

11 equivalents per subscriber.

12 The Board may consider all factors relating to the

13 maintenance of such level of payments including, as

14 an extenuating factor, whether the cable industry

15 has been restrained by subscriber rate regulating au16 thorities from increasing the rates for the basic serv17 ice of providing secondary transmissions.

18 ‘‘(2) In the event that the rules and regulations

19 of the Federal Communications Commission are

20 amended at any time after April 15, 1976, to permit

21 the carriage by cable systems of additional television

22 broadcasting signals beyond the local service area of

23 the primary transmitters of such signals, the royalty

24 rates established by section 111(d)(1)(B) may be ad25 justed to insure that the rates for the additional dis-
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1 tant signal equivalents resulting from such carriage

2 are reasonable in light of the changes effected by the

3 amendment to such rules and regulations. In deter4 mining the reasonableness of rates proposed follow5 ing an amendment of Federal Communications Com6 mission rules and regulations, the Board shall con7 sider, among other factors, the economic impact on

8 copyright owners and users, except that no adjust9 ment in royalty rates shall be made under this para10 graph with respect to any distant signal equivalent

11 or fraction thereof represented by—

12 ‘‘(A) carriage of any signal permitted

13 under the rules and regulations of the Federal

14 Communications Commission in effect on April

15 15, 1976, or the carriage of a signal of the

16 same type (that is, independent, network, or

17 noncommercial educational) substituted for

18 such permitted signal, or

19 ‘‘(B) a television broadcast signal first car20 ried after April 15 1976, pursuant to an indi21 vidual waiver of the rules and regulations of the

22 Federal Communications Commission, as such

23 rules and regulations were in effect on April 15,

24 1976.
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1 ‘‘(3) In the event of any change in the rules

2 and regulations of the Federal Communications

3 Commission with respect to syndicated and sport

4 program exclusivity after April 15, 1976, the rates

5 established by section 111(d)(1)(B) may be adjusted

6 to assure that such rates are reasonable in light of

7 the changes to such rules and regulations, but any

8 such adjustment shall apply only to the affected tele9 vision broadcast signals carried on those systems af10 fected by the change.

11 ‘‘(4) The gross receipts limitations established

12 by section 111(d)(1)(C) and (D) shall be adjusted to

13 reflect national monetary inflation or deflation or

14 changes in the average rates charged cable system

15 subscribers for the basic service of providing second16 ary transmissions to maintain the real constant dol17 lar value of the exemption provided by such section,

18 and the royalty rate specified therein shall not be

19 subject to adjustment.

20 ‘‘(b) FOR RATES OTHER THAN CABLE OR SAT21 ELLITE CARRIERS.—The rates applicable under sections

22 114, 115, and 116 shall be calculated to achieve the fol23 lowing objectives:

24 ‘‘(1) To maximize the availability of creative

25 works to the public.
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1 ‘‘(2) To afford the copyright owner a fair re2 turn for his or her creative work and the copyright

3 user a fair income under existing economic condi4 tions.

5 ‘‘(3) To reflect the relative roles of the copy6 right owner and the copyright user in the product

7 made available to the public with respect to relative

8 creative contribution, technological contribution, cap9 ital investment, cost, risk, and contribution to the

10 opening of new markets for creative expression and

11 media for their communications.

12 ‘‘(4) To minimize any disruptive impact on the

13 structure of the industries involved and on generally

14 prevailing industry practices.

15 ‘‘(c) FOR RATES FOR NONCOMMERCIAL BROADCAST16 ING.—The rates applicable under section 118 shall be cal17 culated to achieve reasonable rates. In determining rea18 sonable rates, the Board shall base its decision so as to—

19 ‘‘(1) assure a fair return to copyright owners;

20 ‘‘(2) encourage the growth and development of

21 public broadcasting; and

22 ‘‘(3) encourage musical and artistic creation.

23 ‘‘(d) RATES FOR SATELLITE CARRIERS.—The rates

24 applicable under section 119 shall be calculated to rep25 resent most clearly the fair market value of secondary
28

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1 transmissions. In determining the fair market value, the

2 Board shall base its decision on economic, competitive,

3 and programming information presented by the parties,

4 including—

5 ‘‘(1) the competitive environment in which such

6 programming is distributed, the cost for similar sig7 nals in similar private and compulsory license mar8 ketplaces, and any special features and conditions of

9 the retransmission marketplace;

10 ‘‘(2) the economic impact of such fees on copy11 right owners and satellite carriers; and

12 ‘‘(3) the impact on the continued availability of

13 secondary transmissions to the public.

14 ‘‘§ 808. Institution of proceedings

15 ‘‘(a) PETITION REQUIRED TO INSTITUTE PROCEED16 INGS.—With respect to proceedings concerning the adjust17 ment of royalty rates as provided in sections 111, 114,

18 115, 116, and 119, during the calendar years or under

19 the circumstances specified in the schedule set forth in

20 subsection (c), any owner or user of a copyrighted work

21 whose royalty rates are to be established or adjusted by

22 the Board may file a petition with the Board declaring

23 that the petitioner requests an adjustment of the rate. The

24 Board shall make a determination as to whether the peti25 tioner has a significant interest in the royalty rate in
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1 which an adjustment is requested. If the Board determines

2 that the petitioner has a significant interest, the Board

3 shall cause notice of this determination, with the reasons

4 therefor, to be published in the Federal Register, together

5 with the notice of commencement of proceedings under

6 this chapter. With respect to proceedings concerning the

7 adjustment of royalty rates under section 1004, any inter8 ested copyright party may petition the Board as provided

9 in that section.

10 ‘‘(b) PETITION NOT REQUIRED TO INSTITUTE PRO11 CEEDINGS.—With respect to proceedings concerning the

12 adjustment of royalty rates as provided in section 118 and

13 the distribution of royalties as provided in section 111,

14 119, and 1007, no petition is required to institute proceed15 ings. All proceedings concerning the adjustment of rates

16 under section 118 shall commence as provided in section

17 118(c) of this title. All proceedings concerning the dis18 tribution of royalties under section 111, 119, or 1007 shall

19 commence as provided in such sections and in subsection

20 (c)(8) of this section.

21 ‘‘(c) SCHEDULE OF PROCEEDINGS.—

22 ‘‘(1) SECTION 111 PROCEEDINGS.—In proceed23 ings concerning the adjustment of royalty rates as

24 provided in section 111, a petition described in sub25 section (a) may be filed during the year 2000 and
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1 in each subsequent fifth calendar year, except that

2 in the event that the rules and regulations of the

3 Federal Communications Commission are amended

4 with respect to distant signal importation, or to syn5 dicated and sports program exclusivity, any owner or

6 user of a copyrighted work subject to the royalty

7 rates established or adjusted pursuant to section

8 111 may, within 12 months after such amendments

9 take effect, file a petition with the Board to institute

10 proceedings to insure that the rates are reasonable

11 in light of the changes to such rules and regulations.

12 Any such adjustments shall apply only to the af13 fected television broadcast signals carried on those

14 systems affected by the change. Any change in roy15 alty rates made pursuant to this subsection may be

16 reconsidered in the year 2000, and each fifth cal17 endar year thereafter, as the case may be.

18 ‘‘(2) SECTION 114 PROCEEDINGS.—In proceed19 ings concerning the adjustment of royalty rates and

20 terms as provided in section 114, the Board shall

21 proceed when and as provided by that section.

22 ‘‘(3) SECTION 115 PROCEEDINGS.—In proceed23 ings concerning the adjustment of royalty rates and

24 terms as provided in section 115, a petition de25 scribed in subsection (a) may be filed in the year
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1 2007 and in each subsequent tenth calendar year or

2 as prescribed in section 115(c)(3).

3 ‘‘(4) SECTION 116 PROCEEDINGS.—(A) In pro4 ceedings concerning the adjustment of royalty rates

5 as provided in section 116, a petition described in

6 subsection (a) may be filed at any time within 1

7 year after negotiated licenses authorized by section

8 116 are terminated or expire or are not replaced by

9 subsequent agreements.

10 ‘‘(B) If a negotiated license authorized by sec11 tion 116 is terminated or expires and is not replaced

12 by another such license agreement which provides

13 permission to use a quantity of musical works not

14 substantially smaller than the quantity of such

15 works performed on coin-operated phonorecord play16 ers during the 1-year period ending March 1, 1989,

17 the Board, upon petition filed under subsection (a)

18 within 1 year after such termination or expiration,

19 shall promptly establish an interim royalty rate or

20 rates for the public performance by means of a coin21 operated phonorecord player of nondramatic musical

22 works embodied in phonorecords which had been

23 subject to the terminated or expired negotiated li24 cense agreement. Such rate or rates shall be the

25 same as the last such rate or rates and shall remain
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1 in force until the conclusion of the proceedings to

2 adjust the royalty rates applicable to such works, or

3 until superseded by a new negotiated license agree4 ment, as provided in section 116(b).

5 ‘‘(5) SECTION 118 PROCEEDINGS.—In proceed6 ings concerning the adjustment of royalty rates and

7 terms as provided in section 118, the Board shall

8 proceed when and as provided by that section.

9 ‘‘(6) SECTION 119 PROCEEDINGS.—In proceed10 ings concerning the adjustment of royalty rates gov11 erning secondary transmissions of as provided in

12 section 119, a petition described in subsection (a)

13 may be filed during the year 2001 and in each sub14 sequent fifth calendar year.

15 ‘‘(7) PROCEEDINGS CONCERNING DISTRIBUTION

16 OF ROYALTY FEES.—In proceedings concerning the

17 distribution of royalty fees under section 111, 119,

18 or 1007, the Board shall, upon a determination that

19 a controversy exists concerning such distribution,

20 cause to be published in the Federal Register notice

21 of commencement of proceedings under this chapter.

22 ‘‘§ 809. Conduct of proceedings

23 ‘‘(a) BOARD PROCEEDINGS.—The Board shall, for

24 the purposes of making its determinations in carrying out
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1 the functions set forth in section 806, conduct proceedings

2 subject to subchapter II of chapter 5 of title 5.

3 ‘‘(b) PROCEDURES.—Subject to the approval of the

4 Register of Copyrights, the Board, shall adopt regulations

5 to govern the conduct of the proceedings of the Board.

6 The regulations shall include, but not be limited to, provi7 sions for—

8 ‘‘(1) public access to and inspection of the

9 records of the Board pursuant to section 706;

10 ‘‘(2) the right of the public to attend the pro11 ceedings of the Board;

12 ‘‘(3) the procedures to apply when formal hear13 ings are conducted; and

14 ‘‘(4) the procedures to apply and the basis upon

15 which distribution or royalty controversies may be

16 decided on the basis of written pleadings.

17 ‘‘(c) PARTICIPATION OF COPYRIGHT OFFICE.—Dur18 ing the conduct of proceedings, the Register of Copyrights

19 may file formally with the Board the position of the Copy20 right Office on any matter before the Board. Such filings

21 shall be served on all parties to the proceeding. The Board

22 may accept or reject the position of the Copyright Office.

23 ‘‘(d) MAJORITY RULE.—The Board shall act in all

24 procedural and substantive matters on the basis of major25 ity rule.
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1 ‘‘(e) NUMBER OF PRESIDING JUDGES.—The Board

2 shall decide, in its discretion, whether 1 or 3 administra3 tive copyright judges shall preside in a royalty distribution

4 or rate adjustment proceeding. In no event shall the num5 ber of presiding administrative copyright judges be more

6 than 3.

7 ‘‘(f) PARTICIPATION OF PARTIES.—Any copyright

8 owner who has filed an acceptable claim claiming entitle9 ment to the distribution of royalties, or any copyright

10 owner or user who would be affected by a royalty rate to

11 be established or adjusted by the Board, may submit rel12 evant information and proposals to the Board in proceed13 ings applicable to the interest of the copyright owner or

14 user.

15 ‘‘(g) TIME LIMITS FOR INITIAL DECISION.—Proceed16 ings under section 118 operate under the time limits es17 tablished in that section. For all other proceedings, if 1

18 administrative copyright judge is presiding in a proceed19 ing, the Board shall issue its initial decision to the parties

20 to the proceeding and the Register of Copyrights within

21 6 months after the declaration of a controversy in the pro22 ceeding. If more than 1 administrative copyright judge is

23 presiding in a proceeding, the Board shall issue its initial

24 decision to the parties to the proceeding and the Register
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1 of Copyrights within 1 year after the declaration of a con2 troversy in the proceeding.

3 ‘‘(h) REQUIREMENTS FOR INITIAL DECISIONS.—The

4 initial decision under subsection (g) shall include a state5 ment of findings and conclusions and the reasons or basis

6 therefor, on all the material issues of fact, law, or discre7 tion presented on the record. The initial decision shall take

8 into account prior decisions of the Copyright Royalty Tri9 bunal, prior decisions of copyright arbitration royalty pan10 els, as adopted or modified by the Librarian of Congress,

11 and the procedural and evidentiary rulings the Librarian

12 of Congress made that were applicable to the proceedings

13 of the copyright arbitration royalty panels. Notwithstand14 ing any provision of section 603 or 604 of title 5, neither

15 the initial decision nor the final decision is required to in16 clude a regulatory flexibility analysis.

17 ‘‘(i) PETITIONS FOR RECONSIDERATION AND FINAL

18 AGENCY ACTION.—Any party to the proceeding concerned

19 or the Register of Copyrights may petition the Board to

20 reconsider its initial decision in the proceeding. If there

21 are no petitions for reconsideration, the initial decision be22 comes the final decision of the Board without further pro23 ceedings. If there are petitions for reconsideration, the

24 Board shall issue a final decision to the parties to the pro25 ceeding and the Register of Copyrights which shall con-
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1 stitute final agency action. The time period by which par2 ties to the proceeding or the Register of Copyrights may

3 file a petition for reconsideration and the time period by

4 which the Board shall render its final decision shall be

5 established by regulation by the Board, subject to the ap6 proval of the Register of Copyrights.

7 ‘‘§ 810. Judicial review

8 ‘‘(a) APPEALS.—Within 1 week after the Board

9 issues a final decision under section 809, or, if there are

10 no petitions for reconsideration, within 1 week after the

11 time the initial decision of the Board under section 809

12 becomes the final decision, the Board shall cause to be

13 published in the Federal Register the decision of the rate

14 adjustment or the royalty distribution, as the case may

15 be. Any aggrieved party who would be bound by the final

16 decision may appeal the decision to the United States

17 Court of Appeals for the Federal Circuit within 30 days

18 after the publication of the decision in the Federal Reg19 ister. In any appeal to which the Board is a party, the

20 chief administrative copyright judge shall refer the con21 duct of the litigation in defense of the Board’s decision

22 to the Department of Justice which shall have the author23 ity to represent the Board under section 516 of title 28.

24 If no appeal is brought within such 30-day period, the de25 cision of the Board is final, and the royalty fee or deter-
37

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1 mination with respect to the distribution of fees, as the

2 case may be, shall take effect as set forth in the decision.

3 The pendency of an appeal under this subsection shall not

4 relieve persons who would be affected by the determina5 tions on appeal under section 111, 114, 115, 116, 118,

6 119, or 1003, of the obligation to deposit the statement

7 of account or to pay royalty fees specified in those sec8 tions.

9 ‘‘(b) REVIEW SUBJECT TO CHAPTER 7 OF TITLE

10 5.—The judicial review of the Board’s final decision shall

11 be had, in accordance with chapter 7 of title 5, on the

12 basis of the record before the Board.

13 ‘‘§ 811. Administrative matters

14 ‘‘(a) ADMINISTRATIVE SUPPORT.—The Library of

15 Congress, upon the recommendation of the Register of

16 Copyrights, shall provide the Board with the necessary ad17 ministrative services and personnel related to proceedings

18 under this title.

19 ‘‘(b) AUTHORITY TO PUBLISH IN FEDERAL REG20 ISTER.—The actions of the Board which may be published

21 in the Federal Register by and under the authority of the

22 Board include—

23 ‘‘(1) actions of the Board required to be pub24 lished in the Federal Register under this title;
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1 ‘‘(2) actions of the Board required to be pub2 lished in the Federal Register under regulations

3 adopted by the Board upon the approval of the Reg4 ister of Copyrights; and

5 ‘‘(3) regulations of the Board required to be

6 published in the Federal Register to which the

7 Board has been delegated the exclusive right to

8 adopt.

9 ‘‘(c) COLLECTION AND USE OF FEES.—

10 ‘‘(1) DEDUCTION OF COSTS FROM FEES.—The

11 Librarian of Congress and the Register of Copy12 rights may, to the extent not otherwise provided

13 under this title, deduct from the royalty fees depos14 ited or fees collected under this title the reasonable

15 costs incurred by the Library of Congress and the

16 Copyright Office under this chapter. Such deduction

17 may be made before the fees are distributed to any

18 copyright owner.

19 ‘‘(2) COLLECTION OF FEES.—The Register of

20 Copyrights may impose and collect fees in advance

21 to carry out the ratemaking proceedings. All fees re22 ceived under this section shall be deposited by the

23 Register of Copyrights in the Treasury of the United

24 States and shall be credited to the appropriations for

25 necessary expenses of the Copyright Office. Such
39

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1 fees that are collected shall remain available until

2 expended. The Register may refund any sum paid by

3 mistake or in excess of the fee required under this

4 section.

5 ‘‘(d) POSITIONS REQUIRED FOR ADMINISTRATION OF

6 COMPULSORY LICENSING.—Section 307 of the Legislative

7 Branch Appropriations Act of 1994 shall not apply to the

8 members of the Board, employee positions in the Board,

9 or employee positions in the Library of Congress that are

10 required to be filled in order to carry out section 111, 114,

11 115, 116, 118, or 119 or chapter 10.

12 ‘‘(e) BUDGET.—In each annual request for appro13 priations, the Register of Copyrights shall identify the por14 tion thereof intended for the support of the Board and

15 a statement which shall include an assessment of the

16 budgetary needs of the Board.

17 ‘‘(f) ANNUAL REPORT.—The Board shall prepare an

18 annual report of its work and accomplishments during

19 each fiscal year, which the Register of Copyrights shall

20 include in the annual report required under section 701(c).

21 ‘‘§ 812. Rule of construction

22 ‘‘Nothing in this chapter shall be construed to affect

23 the authority of the Register of Copyrights to establish

24 regulations under sections 701 and 702.’’.

25 (b) TECHNICAL AND CONFORMING AMENDMENTS.—
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1 (1) TABLE OF CHAPTERS.—The item relating

2 to chapter 8 in the table of chapters for title 17,

3 United States Code, is amended to read as follows:

‘‘8. Copyright Royalty Adjudication Board ............................. 801’’.

4 (2) JURISDICTION OF FEDERAL CIRCUIT.—Sec5 tion 1295(a) of title 28, United States Code, is

6 amended—

7 (A) in paragraph (13) by striking ‘‘and’’

8 after the semicolon;

9 (B) in paragraph (14) by striking the pe10 riod and inserting a semicolon and ‘‘and ’’; and

11 (C) by adding at the end the following new

12 paragraph:

13 ‘‘(15) of an appeal from a final decision of the

14 Copyright Royalty Adjudication Board under sec15 tions 809(i) and 810 of title 17.’’.

16 SEC. 8. TRANSITION PROVISIONS.

17 (a) TRANSITIONAL PROCEDURES.—During the pe18 riod beginning on the date of the enactment of this Act

19 and ending on the effective date of this Act, the Register

20 of Copyrights shall adopt regulations to govern proceed21 ings under chapter 8 of title 17, United States Code, as

22 amended by section 7 of this Act. Such regulations shall

23 remain in effect unless and until the Copyright Royalty

24 Adjudication Board, upon the approval of the Register of

25 Copyrights, adopts supplemental or superseding regula-
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1 tions pursuant to section 809(b) of title 17, United States

2 Code.

3 (b) PROCEEDINGS IN PROGRESS.—

4 (1) COPYRIGHT ARBITRATION ROYALTY PANEL

5 PROCEEDINGS.—Unless the Register of Copyrights,

6 for good cause, finds otherwise, proceedings in which

7 a copyright arbitration royalty panel has been con8 vened by the Librarian of Congress under chapter 8

9 of title 17, United States Code, as in effect before

10 the effective date of this Act, shall continue in effect

11 and shall be governed under chapter 8 of such title,

12 and applicable regulations, as in effect prior to such

13 effective date, and proceedings in which a copyright

14 arbitration royalty panel has not been convened by

15 the Librarian of Congress under chapter 8 of title

16 17, United States Code, before the effective date of

17 this Act shall be suspended and recommenced under

18 the amendments made by section 7.

19 (2) CONTINUED PROCEEDINGS.—For those pro20 ceedings continued under paragraph (1), the func21 tions of the Librarian of Congress and the Register

22 of Copyrights relating to the report of the copyright

23 arbitration royalty panel under title 17, United

24 States Code, as in effect before the effective date of

25 this Act, may, in the Librarian’s discretion, upon the
42

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1 recommendation of the Register of Copyrights, be

2 delegated to the Copyright Royalty Adjudication

3 Board, when constituted.

4 (3) APPEALS.—In any appeal of a decision of

5 the Librarian of Congress adopting or rejecting a

6 determination of a copyright arbitration royalty

7 panel which is pending in the United States Court

8 of Appeals for the District of Columbia Circuit on

9 or after the effective date of this Act, if such case

10 is remanded by the court, the Librarian of Congress

11 shall not reconvene the copyright arbitration royalty

12 panel which rendered the determination, but shall

13 direct the Copyright Royalty Adjudication Board,

14 when constituted, to conduct proceedings in accord15 ance with the directions of the court. If the case is

16 remanded by the court after the enactment date of

17 this Act but before the effective date of this Act, the

18 Librarian of Congress shall have the discretion to re19 convene the copyright arbitration royalty panel

20 which rendered the determination, or direct the

21 Copyright Royalty Adjudication Board when con22 stituted, to conduct proceedings in accordance with

23 the directions of the court.

24 (c) EFFECTIVENESS OF EXISTING RATES AND DIS25 TRIBUTIONS.—All royalty rates and all determinations
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1 with respect to the proportionate division of compulsory

2 license fees among copyright claimants, whether made by

3 the Copyright Royalty Tribunal, copyright arbitration roy4 alty panels, or by voluntary agreement, before the effective

5 date of this Act, shall remain in effect until modified by

6 voluntary agreement or pursuant to the amendments

7 made by this Act.

8 (d) TRANSFER OF APPROPRIATIONS.—All unex9 pended balances of appropriations made by the Copyright

10 Office for the support of the copyright arbitration royalty

11 panels, as of the effective date of this Act, are transferred

12 on such effective date to the support of the Copyright Roy13 alty Arbitration Board for the purposes for which such

14 appropriations were made except that, in the event that

15 any copyright arbitration royalty panels continue to oper16 ate after the effective date of this Act, the Register of

17 Copyrights shall retain such portions of the unexpended

18 balances of appropriations as are necessary to support the

19 continuing copyright arbitration royalty panels.

20 SEC. 9. AMENDMENTS TO OTHER PROVISIONS OF TITLE 17,

21 UNITED STATES CODE.

22 (a) SECONDARY TRANSMISSIONS BY CABLE SYS23 TEMS.—Section 111(d) of title 17, United States Code,

24 is amended—
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1 (1) in paragraph (2) in the last sentence by

2 striking ‘‘Librarian of Congress’’ and all that follows

3 through the end of the sentence and inserting the

4 following: ‘‘Copyright Royalty Adjudication Board as

5 provided in this title. The Register of Copyrights

6 may, 4 or more years after the close of any calendar

7 year, close out the account for royalty payments

8 made for that calendar year, and may treat any

9 funds remaining the such account and any subse10 quent deposits that would otherwise be attributable

11 to that calendar year as attributable to the succeed12 ing calendar year.’’; and

13 (2) in paragraph (4)—

14 (A) in subparagraph (A)—

15 (i) by striking ‘‘Librarian of Con16 gress’’ the first place it appears and insert17 ing ‘‘Copyright Royalty Adjudication

18 Board’’; and

19 (ii) by striking ‘‘Librarian of Con20 gress’’ the second place it appears and in21 serting ‘‘Board’’;

22 (B) in subparagraph (B)—

23 (i) by striking ‘‘Librarian of Congress

24 shall, upon the recommendation of the

25 Register of Copyrights’’ and inserting
45

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1 ‘‘Copyright Royalty Adjudication Board

2 shall’’;

3 (ii) by striking ‘‘Librarian’’ each sub4 sequent place it appears and inserting

5 ‘‘Board’’; and

6 (iii) in the last sentence by striking

7 ‘‘convene a copyright royalty arbitration

8 panel’’ and inserting ‘‘conduct a proceed9 ing’’; and

10 (C) in subparagraph (C)—

11 (i) by striking ‘‘Librarian of Con12 gress’’ and inserting ‘‘Copyright Royalty

13 Adjudication Board’’; and

14 (ii) by adding at the end the follow15 ing: ‘‘The action of the Board to distribute

16 royalty fees may precede the declaration of

17 a controversy if all parties to the proceed18 ing file a petition with the Board request19 ing such distribution, except that such

20 amount may not exceed 50 percent of the

21 amounts on hand at the time of the re22 quest.’’.

23 (b) SCOPE OF EXCLUSIVE RIGHTS IN SOUND RE24 CORDINGS.—Section 114(f) of title 17, United States

25 Code, is amended—
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1 (1) in paragraph (1)—

2 (A) by amending the first sentence to read

3 as follows: ‘‘During the first week of January,

4 2000, the Copyright Royalty Adjudication

5 Board shall cause notice to be published in the

6 Federal Register of the initiation of voluntary

7 negotiation proceedings for the purpose of de8 termining or adjusting reasonable terms and

9 rates of royalty payments for the activities spec10 ified in subsection (d)(2) of this section.’’; and

11 (B) in the third sentence by striking ‘‘Li12 brarian of Congress’’ and inserting ‘‘Copyright

13 Royalty Adjudication Board’’;

14 (2) by striking paragraphs (2), (3), and (4) and

15 inserting the following:

16 ‘‘(2) In the absence of license agreements nego17 tiated under paragraph (1), during the 60-day pe18 riod beginning 6 months after publication of the no19 tice specified in paragraph (1), and upon the filing

20 of a petition in accordance with section 808(a), the

21 Copyright Royalty Adjudication Board shall, pursu22 ant to chapter 8, conduct a proceeding to determine

23 and publish in the Federal Register a schedule of

24 rates and terms. In addition to the objectives set

25 forth in section 807(a) in establishing or adjusting
47

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1 such rates and terms, the Board may consider the

2 rates and terms for comparable types of digital

3 audio transmission services and comparable cir4 cumstances under voluntary license agreements ne5 gotiated as provided in paragraph (1). The Copy6 right Royalty Adjudication Board, upon the approval

7 of the Register of Copyrights, shall also establish re8 quirements by which copyright owners may receive

9 reasonable notice of the use of their sound record10 ings under this section, and under which records of

11 such use shall be kept and made available by entities

12 performing sound recordings.

13 ‘‘(3) License agreements voluntarily negotiated

14 at any time between 1 or more copyright owners of

15 sound recordings and 1 or more entities performing

16 sound recordings shall be given effect in lieu of any

17 determination by the Copyright Royalty Adjudica18 tion Board.

19 ‘‘(4) Publication of a notice of the initiation of

20 voluntary negotiation proceedings as specified in

21 paragraph (1) and the procedures specified in para22 graph (2) shall be repeated, in accordance with regu23 lations that the Copyright Royalty Adjudication

24 Board, upon the approval of the Register of Copy25 rights, shall prescribe—
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1 ‘‘(A) no later than 30 days after a petition

2 is filed by any copyright owners of sound re3 cordings or any entities performing sound re4 cordings affected by this section indicating that

5 a new type of digital audio transmission service

6 on which sound recordings are performed is or

7 is about to become operational; and

8 ‘‘(B) during the first week of January

9 2005 and at 5-year intervals thereafter.’’; and

10 (3) in paragraph (5)(A)(i) by striking ‘‘Librar11 ian of Congress’’ and inserting ‘‘Copyright Royalty

12 Adjudication Board, upon the approval of the Reg13 ister of Copyrights,’’.

14 (c) COMPULSORY LICENSE FOR MAKING AND DIS15 TRIBUTING PHONORECORDS.—Section 115(c)(3) of title

16 17, United States Code, is amended—

17 (1) in subparagraph (C)—

18 (A) by amending the first sentence to read

19 as follows: ‘‘At the times established in sub20 paragraph (F), the Copyright Royalty Adjudica21 tion Board shall cause notice to be published in

22 the Federal Register of the initiation of vol23 untary negotiation proceedings for the purpose

24 of determining reasonable terms and rates of

25 royalty payments for the activities specified in
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1 subparagraph (A) until the effective date of any

2 new terms and rates established pursuant to

3 this subparagraph or subparagraph (D) or (F),

4 or such other date (regarding digital phono5 record deliveries) as the parties may agree.’’;

6 (B) in the third sentence by striking ‘‘Li7 brarian of Congress’’ and inserting ‘‘Copyright

8 Royalty Adjudication Board’’;

9 (2) by amending subparagraph (D) to read as

10 follows:

11 ‘‘(D) In the absence of license agreements nego12 tiated under subparagraphs (B) and (C), upon the

13 filing of a petition in accordance with section 808(a),

14 the Copyright Royalty Adjudication Board shall,

15 pursuant to chapter 8, conduct a proceeding to de16 termine and publish in the Federal Register a sched17 ule of rates and terms. Such rates and terms shall

18 distinguish between—

19 ‘‘(i) digital phonorecord deliveries where

20 the reproduction or distribution of a phono21 record is incidental to the transmission which

22 constitute the digital phonorecord delivery, and

23 ‘‘(ii) digital phonorecord deliveries in gen24 eral.
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1 In addition to the objectives set forth in section 807(a),

2 in establishing or adjusting rates and terms, the Board

3 may consider rates and terms under voluntary license

4 agreements negotiated as provided in subparagraphs (B)

5 and (C). The Board, upon the approval of the Register

6 of Copyrights, shall also establish requirements by which

7 copyright owners may receive reasonable notice of the use

8 of their works under this section, and under which records

9 of such use shall be kept and made available by persons

10 making digital phonorecord deliveries.’’;

11 (3) in subparagraph (E)(i) in the first sentence

12 by striking ‘‘Librarian of Congress’’ and inserting

13 ‘‘Copyright Royalty Adjudication Board’’; and

14 (4) in subparagraph (F) by striking ‘‘Librarian

15 of Congress’’ and inserting ‘‘ Copyright Royalty Ad16 judication Board, upon the approval of the Register

17 of Copyrights,’’.

18 (d) NEGOTIATED LICENSES FOR PUBLIC PERFORM19 ANCES BY MEANS OF COIN-OPERATED PHONORECORD

20 PLAYERS.—Section 116 of title 17, United States Code,

21 is amended—

22 (1) by amending subsection (b)(2) to read as

23 follows:

24 ‘‘(2) RATE ADJUSTMENT PROCEEDING.—Par25 ties not subject to such a negotiation may determine,
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1 by a rate adjustment proceeding in accordance with

2 the provisions of chapter 8, the terms and rates and

3 the division of fees described in paragraph (1).’’; and

4 (2) in subsection (c)—

5 (A) in the subsection heading by

6 striking ‘‘COPYRIGHT ROYALTY ARBITRA7 TION PANEL’’ and inserting ‘‘COPYRIGHT

8 ROYALTY ADJUDICATION BOARD’’; and

9 (B) by striking ‘‘a copyright arbitration

10 royalty panel and inserting ‘‘the Copyright Roy11 alty Adjudication Board’’.

12 (e) USE OF CERTAIN WORKS IN CONNECTION WITH

13 NONCOMMERCIAL BROADCASTING.—Section 118 of title

14 17, United States Code, is amended—

15 (1) in subsection (b)—

16 (A) by striking paragraph (1) and redesig17 nating paragraphs (2) and (3) as paragraphs

18 (1) and (2), respectively;

19 (B) in paragraph (1), as so redesignated,

20 by striking ‘‘Librarian of Congress’’ and insert21 ing ‘‘Copyright Royalty Adjudication Board’’;

22 (C) in paragraph (2), as so redesignated—

23 (i) by striking ‘‘paragraph (2)’’ each

24 place it appears and inserting ‘‘paragraph

25 (1)’’;
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1 (ii) by striking ‘‘Librarian of Con2 gress’’ the first place it appears and insert3 ing ‘‘Copyright Royalty Adjudication

4 Board’’;

5 (iii) by striking ‘‘Librarian of Con6 gress’’ the second and third places it ap7 pears and inserting ‘‘Board’’; and

8 (iv) by striking ‘‘Librarian of Con9 gress’’ the last place it appears and insert10 ing ‘‘Board, upon the approval of the Reg11 ister of Copyrights,’’;

12 (2) in subsection (c)—

13 (A) by striking ‘‘1997’’ and inserting

14 ‘‘2002’’; and

15 (B) by striking ‘‘Librarian of Congress’’

16 and inserting ‘‘Copyright Royalty Adjudication

17 Board, upon the approval of the Register of

18 Copyrights,’’;

19 (3) in subsection (d)—

20 (A) by striking ‘‘(b)(2)’’ and inserting

21 ‘‘(b)(1)’’; and

22 (B) by striking ‘‘a copyright arbitration

23 royalty panel under subsection (b)(3)’’ and in24 serting ‘‘the Copyright Royalty Adjudication

25 Board under subsection (b)(2)’’; and
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1 (4) in subsection (e), by striking paragraphs (1)

2 and (2).

3 (f) DIGITAL AUDIO RECORDING DEVICES AND

4 MEDIA.—

5 (1) ROYALTY PAYMENTS.—Section 1004(a)(3)

6 of title 17, United States Code, is amended in the

7 third sentence—

8 (A) by striking ‘‘the 6th year after the ef9 fective date of this chapter’’ and inserting

10 ‘‘1998’’;

11 (B) by striking ‘‘Librarian of Congress’’

12 the first place it appears and inserting ‘‘Copy13 right Royalty Adjudication Board’’; and

14 (C) by striking ‘‘Librarian of Congress’’

15 the second place it appears and inserting

16 ‘‘Board’’.

17 (2) ENTITLEMENT TO ROYALTY PAYMENTS.—

18 Section 1006(c) of title 17, United States Code, is

19 amended by striking ‘‘Librarian of Congress shall

20 convene a copyright arbitration royalty panel which’’

21 and inserting ‘‘Copyright Royalty Adjudication

22 Board’’.

23 (3) PROCEDURES FOR DISTRIBUTING ROYALTY

24 PAYMENTS.—Section 1007 of title 17, United States

25 Code, is amended—
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1 (A) in subsection (a)(1)—

2 (i) by striking ‘‘after the calendar

3 year in which this chapter takes effect’’;

4 (ii) by striking ‘‘Librarian of Con5 gress’’ the first place it appears and insert6 ing ‘‘Copyright Royalty Adjudication

7 Board’’; and

8 (iii) by striking ‘‘Librarian of Con9 gress’’ the second place it appears and in10 serting ‘‘Board’’;

11 (B) in subsection (b)—

12 (i) by amending the first sentence to

13 read as follows: ‘‘After the first day of

14 March of each year, the Copyright Royalty

15 Adjudication Board shall determine wheth16 er there exists a controversy concerning

17 the distribution of royalty payments under

18 section 1006(c).’’; and

19 (ii) by striking ‘‘Librarian of Con20 gress’’ each place it appears and inserting

21 ‘‘Board’’; and

22 (C) in subsection (c)—

23 (i) by amending the first sentence to

24 read as follows: ‘‘If the Copyright Royalty

25 Adjudication Board finds the existence of a
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1 controversy, the Board shall, pursuant to

2 chapter 8 of this title, conduct a proceed3 ing to determine the distribution of royalty

4 payments.’’;

5 (ii) by striking ‘‘Librarian of Con6 gress’’ each place it appears and inserting

7 ‘‘Board’’; and

8 (iii) by striking ‘‘Librarian under this

9 section’’ and inserting ‘‘Board under this

10 section. The action of the Board to distrib11 ute royalty fees may precede the declara12 tion of a controversy if all parties to the

13 proceeding file a petition with the Board

14 requesting such distribution, except that

15 such amount may not exceed 50 percent of

16 the amounts on hand at the time of the re17 quest.’’.

18 (4) ADJUDICATION OF CERTAIN DIS19 PUTES.—Section 1010 of title 17, United

20 States Code, is amended—

21 (A) by amending the section heading

22 to read as follows:

23 ‘‘§ 1010. Adjudication of certain disputes’’;

24 (B) in subsection (a)—
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1 (i) in the subsection heading by

2 striking ‘‘ARBITRATION’’ and inserting

3 ‘‘ADJUDICATION’’; and

4 (ii) by striking ‘‘mutually agree

5 to binding arbitration for the purpose

6 of determining’’ and inserting ‘‘peti7 tion the Copyright Royalty Adjudica8 tion Board to determine’’;

9 (C) by striking subsection (b) and re10 designating subsections (c) and (d) as sub11 sections (b) and (c), respectively;

12 (D) in subsection (b), as so redesig13 nated, by striking ‘‘arbitration’’ each place

14 it appears and inserting ‘‘adjudication’’;

15 (E) by amending subsection (c), as so

16 redesignated, to read as follows:

17 ‘‘(c) ADJUDICATION PROCEEDING.—The Copyright

18 Royalty Adjudication Board shall conduct an adjudication

19 proceeding with respect to the matter concerned, pursuant

20 to chapter 8 of this title. The parties to the proceeding

21 shall bear the entire costs thereof in such manner and pro22 portion as the Board shall direct.’’; and

23 (F) by striking subsections (e), (f),

24 and (g).
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1 SEC. 10. TECHNICAL AMENDMENTS.

2 (a) CLERICAL AMENDMENT TO CHAPTER 10 OF

3 TITLE 17, UNITED STATES CODE.—The item relating to

4 section 1010 in the table of contents for chapter 10 of

5 title 17, United States Code, is amended to read as fol6 lows:

‘‘1010. Adjudication of certain disputes.’’.

7 (b) CLERICAL AMENDMENT TO CHAPTER 9 OF TITLE

8 17, UNITED STATES CODE.—The item relating to section

9 903 in the table of contents for chapter 9 of title 17,

10 United States Code, is amended to read as follows:

‘‘903. Ownership, transfer, licensing, and recordation.’’.

11 (c) CLERICAL AMENDMENT TO TABLE OF CHAP12 TERS.—The item relating to chapter 6 in the table of

13 chapters for title 17, United States Code, is amended to

14 read as follows:

‘‘6. Manufacturing Requirements and Importation ............. 601’’.

15 SEC. 11. RETRANSMISSION CONSENT.

16 Section 325(b) of the Communications Act of 1934

17 (47 U.S.C. 325(b)) is amended—

18 (1) by striking paragraphs (1) and (2) and in19 serting the following:

20 ‘‘(b)(1) No cable system or other multichannel video

21 programming distributor shall retransmit the signal of a

22 broadcasting station, or any part thereof, except—

23 ‘‘(A) with the express authority of the station;
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1 ‘‘(B) pursuant to section 614, in the case of a

2 station electing, in accordance with this subsection,

3 to assert the right to carriage under such section; or

4 ‘‘(C) pursuant to section 337, in the case of a

5 station electing, in accordance with this subsection,

6 to assert the right to carriage under such section.

7 ‘‘(2) The provisions of this subsection shall not apply

8 to—

9 ‘‘(A) retransmission of the signal of a non10 commercial broadcasting station;

11 ‘‘(B) retransmission of the signal of a supersta12 tion by a satellite carrier to subscribers for private

13 home viewing if the originating station was a super14 station on January 1, 1998;

15 ‘‘(C) retransmission of the signal of a broad16 casting station that is owned or operated by, or af17 filiated with, a broadcasting network directly to a

18 home satellite antenna, if the household receiving

19 the signal is located in an area in which such station

20 may not assert its rights not to have its signal dupli21 cated under the Commission’s network nonduplica22 tion regulations; or

23 ‘‘(D) retransmission by a cable operator or

24 other multichannel video programming distributor of

25 the signal of a superstation if such signal was ob-
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1 tained from a satellite carrier and the originating

2 station was a superstation on January 1, 1998.’’;

3 (2) by adding at the end of paragraph (3) the

4 following new subparagraph:

5 ‘‘(C) Within 45 days after the effective date of the

6 Copyright Compulsory License Improvement Act, the

7 Commission shall commence a rulemaking proceeding to

8 revise the regulations governing the exercise by television

9 broadcast stations of the right to grant retransmission

10 consent under this subsection, and such other regulations

11 as are necessary to administer the limitation contained in

12 paragraph (2). Such regulations shall establish election

13 time periods that correspond with those regulations adopt14 ed under subparagraph (B). The rulemaking shall be com15 pleted within 180 days after the effective date of the Copy16 right Compulsory License Improvement Act.’’; and

17 (3) by adding at the end the following new

18 paragraph:

19 ‘‘(7) For purposes of this subsection:

20 ‘‘(A) The term ‘superstation’ means a television

21 broadcast station, other than a network station, li22 censed by the Commission that is secondarily trans23 mitted by a satellite carrier.
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1 ‘‘(B) The term ‘satellite carrier’ has the mean2 ing given that term in section 119(d) of title 17,

3 United States Code.’’.

4 SEC. 12. MUST-CARRY FOR SATELLITE CARRIERS RE5 TRANSMITTING TELEVISION BROADCAST SIG6 NALS.

7 Title III of the Communications Act of 1934 is

8 amended by inserting after section 336 the following new

9 section:

10 ‘‘SEC. 337. CARRIAGE OF LOCAL TELEVISION SIGNALS BY

11 SATELLITE CARRIERS.

12 ‘‘(a) CARRIAGE OBLIGATIONS.—Each satellite carrier

13 providing direct to home service of a network station to

14 subscribers located within the local market of such station

15 shall offer to carry all television broadcast stations located

16 within that local market, subject to section 325(b). Car17 riage of additional television broadcast stations within the

18 local market shall be at the discretion of the satellite car19 rier, subject to section 325(b).

20 ‘‘(b) DUPLICATION NOT REQUIRED.—Notwithstand21 ing subsection (a), a satellite carrier shall not be required

22 to offer to carry the signal of any local television broadcast

23 station that substantially duplicates the signal of another

24 local television broadcast station which is secondarily

25 transmitted by the satellite carrier, or to offer to carry
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1 the signals of more that one local television broadcast sta2 tion affiliated with a particular broadcast network (as the

3 term is defined by regulation).

4 ‘‘(c) CHANNEL POSITIONING.—Each signal carried in

5 fulfillment of the carriage obligations of a satellite carrier

6 under this section shall be carried on the satellite carrier

7 channel number on which the local television broadcast

8 station is broadcast over the air, or on the channel on

9 which it was broadcast on January 1, 1985, or on the

10 channel it was broadcast on January 1, 1998, at the elec11 tion of the station, or on such other channel number as

12 is mutually agreed upon by the station and the satellite

13 carrier. Any dispute regarding the positioning of local tele14 vision broadcast stations shall be resolved by the Commis15 sion.

16 ‘‘(d) COMPENSATION FOR CARRIAGE.—A satellite

17 carrier shall not accept or request monetary payment or

18 other valuable consideration in exchange either for car19 riage of local television broadcast stations in fulfillment

20 of the requirements of this section or for channel position21 ing rights provided to such stations under this section, ex22 cept that any such station may be required to bear the

23 costs associated with delivering a good quality signal to

24 the principal headend of the satellite carrier.

25 ‘‘(e) REMEDIES.—
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1 ‘‘(1) COMPLAINTS BY BROADCAST STATIONS.—

2 Whenever a local television broadcast station believes

3 that a satellite carrier has failed to meet its obliga4 tions under this section, such station shall notify the

5 carrier, in writing, of the alleged failure and identify

6 its reasons for believing that the satellite carrier is

7 obligated to offer to carry the signal of such station

8 or has otherwise failed to comply with the channel

9 positioning or repositioning or other requirements of

10 this section. The satellite carrier shall, within 30

11 days of such written notification, respond in writing

12 to such notification and either commence to carry

13 the signal of such station in accordance with the

14 terms requested or state its reasons for believing

15 that it is not obligated to carry such signal or is in

16 compliance with the channel positioning and reposi17 tioning or other requirements of this section. A local

18 television broadcast station that is denied carriage or

19 channel positioning or repositioning in accordance

20 with this section by a satellite carrier may obtain re21 view of such denial by filing a complaint with the

22 Commission. Such complaint shall allege the manner

23 in which such satellite carrier has failed to meet its

24 obligations and the basis for such allegations.
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1 ‘‘(2) OPPORTUNITY TO RESPOND.—The Com2 mission shall afford such satellite carrier and oppor3 tunity to present data and arguments to establish

4 that there has been no failure to meet its obligations

5 under this section.

6 ‘‘(3) REMEDIAL ACTIONS; DISMISSAL.—Within

7 120 days after the date a complaint is filed, the

8 Commission shall determine whether the satellite

9 carrier has met its obligations under this section. If

10 the Commission determines that the satellite carrier

11 has failed to meet such obligations, the Commission

12 shall order the satellite carrier to reposition the com13 plaining station or, in the case of an obligation to

14 carry a station, to commence carriage of the station

15 and to continue such carriage for at least 12

16 months. If the Commission determines that the sat17 ellite carrier has fully met the requirements of this

18 section, it shall dismiss the complaint.

19 ‘‘(f) REGULATIONS BY COMMISSION.—Within 180

20 days after the effective date of this section, the Commis21 sion shall, following a rulemaking proceeding, issue regula22 tions implementing the requirements imposed by this sec23 tion.

24 ‘‘(g) DEFINITIONS.—As used in this section:
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1 ‘‘(1) TELEVISION BROADCAST STATION.—The

2 term ‘television broadcast station’ means a full3 power television broadcast station, and does not in4 clude a low-power or translator television broadcast

5 station.

6 ‘‘(2) LOCAL MARKET.—The term ‘local market’

7 means the designated market area in which a station

8 is located and—

9 ‘‘(A) for a commercial television broadcast

10 station located in any of the 150 largest des11 ignated market areas, all commercial television

12 broadcast stations licensed to a community

13 within the same designated market area are

14 within the same local market;

15 ‘‘(B) for a commercial television broadcast

16 station that is located in a designated market

17 area that is not one of the 150 largest, the local

18 market includes, in addition to all commercial

19 television broadcast stations licensed to a com20 munity within the same designated market

21 area, any station that is significantly viewed, as

22 such term is defined in section 76.54 of the

23 Commission’s regulations (47 C.F.R. 76.54);

24 and
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1 ‘‘(C) for a noncommercial educational tele2 vision broadcast station, the local market in3 cludes any station that is licensed to a commu4 nity within the same designated market area as

5 the noncommercial educational television broad6 cast station.

7 ‘‘(3) DESIGNATED MARKET AREA.—The term

8 ‘designated market area’ means a designated market

9 area, as determined by the Nielsen Media Research

10 and published in the DMA Market and Demographic

11 Report.’’.

12 SEC. 13. NETWORK NONDUPLICATION; SYNDICATED EXCLU13 SIVITY AND SPORTS BLACKOUT.

14 (a) REGULATIONS.—

15 (1) IN GENERAL.—Within 45 days after the ef16 fective date of this Act, the Federal Communications

17 Commission shall commence a rulemaking to estab18 lish regulations that apply network nonduplication

19 protection, syndicated exclusivity protection, and

20 sports blackout protection to the retransmission of

21 broadcast signals by satellite carriers to subscribers

22 for private home viewing. To the extent possible,

23 such regulations shall, subject to paragraph (2), in24 clude the same level of protection accorded retrans25 missions of television broadcast signals by cable sys-
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1 tems for network nonduplication (47 C.F.R. 76.92),

2 syndicated exclusivity (47 C.F.R. 151), and sports

3 blackout (47 C.F.R. 76.67).

4 (2) NETWORK NONDUPLICATION.—The network

5 nonduplication regulations required under paragraph

6 (1) shall allow a television broadcast station in any

7 local market to assert nonduplication rights—

8 (A) against a satellite carrier throughout

9 such local market if that satellite carrier re10 transmits to subscribers for private home view11 ing in such local market the signal of another

12 television broadcast station located within such

13 local market; or

14 (B) against all satellite carriers within the

15 zone in which the television broadcast station

16 may be received over-the-air, using conventional

17 consumer television receiving equipment, as de18 termined under regulations prescribed by the

19 Federal Communications Commission, but such

20 zone shall not extend beyond such local market

21 of such station.

22 (3) LOCAL MARKET DEFINED.—The term ‘‘local

23 market’’ has the meaning provided in section 337(g)

24 of the Communications Act of 1934, as added by

25 section 12 of this Act.
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1 (b) DEFERRED APPLICABILITY OF AMENDMENTS TO

2 SECTION 119 OF TITLE 17, UNITED STATES CODE.—

3 Notwithstanding the amendments to section 119 of title

4 17, United States Code, made by this Act, until the regu5 lations regarding network nonduplication protection are

6 established under subsection (a), the statutory license

7 under subsection (a) of such section 119 for secondary

8 transmissions of primary transmissions of programming

9 contained in a primary transmission made by a network

10 station (as defined in section 119(d) of title 17, United

11 States Code, as in effect on the day before the effective

12 date of this Act) shall be limited to secondary trans13 missions to persons who reside in unserved households (as

14 defined in section 119(d) of title 17, United States Code,

15 as in effect on the day before the effective date of this

16 Act).

17 SEC. 14. EFFECTIVE DATE.

18 This Act and the amendments made by this Act shall

19 take effect on January 1, 1999.

20 SECTION 1. SHORT TITLE.

21 This Act may be cited as the ‘‘Copyright Compulsory

22 License Improvement Act’’.
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1 SEC. 2. LIMITATIONS ON EXCLUSIVE RIGHTS; SECONDARY

2 TRANSMISSIONS BY SATELLITE CARRIERS

3 WITHIN LOCAL MARKETS.

4 (a) IN GENERAL.—Chapter 1 of title 17, United States

5 Code, is amended by adding after section 121 the following

6 new section:

7 ‘‘§ 122. Limitations on exclusive rights; secondary

8 transmissions by satellite carriers within

9 local markets

10 ‘‘(a) SECONDARY TRANSMISSIONS OF TELEVISION

11 BROADCAST STATIONS BY SATELLITE CARRIERS.—A sec12 ondary transmission of a primary transmission of a tele13 vision broadcast station into the station’s local market shall

14 be subject to statutory licensing under this section if—

15 ‘‘(1) the secondary transmission is made by a

16 satellite carrier to the public;

17 ‘‘(2) the secondary transmission is permissible

18 under the rules, regulations, or authorizations of the

19 Federal Communications Commission; and

20 ‘‘(3) the satellite carrier makes a direct or indi21 rect charge for the secondary transmission to—

22 ‘‘(A) each subscriber receiving the secondary

23 transmission; or

24 ‘‘(B) a distributor that has contracted with

25 the satellite carrier for direct or indirect delivery

26 of the secondary transmission to the public.
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1 ‘‘(b) REPORTING REQUIREMENTS.—

2 ‘‘(1) INITIAL LISTS.—A satellite carrier that

3 makes secondary transmissions of a primary trans4 mission made by a network station under subsection

5 (a) shall, within 90 days after commencing such sec6 ondary transmissions, submit to that station a list

7 identifying (by name and street address, including

8 county and zip code) all subscribers to which the sat9 ellite carrier currently makes secondary transmissions

10 of that primary transmission.

11 ‘‘(2) SUBSEQUENT LISTS.—After the list is sub12 mitted under paragraph (1), the satellite carrier

13 shall, on the 15th of each month, submit to the station

14 a list identifying (by name and street address, includ15 ing county and zip code) any subscribers who have

16 been added or dropped as subscribers since the last

17 submission under this subsection.

18 ‘‘(3) USE OF SUBSCRIBER INFORMATION.—Sub19 scriber information submitted by a satellite carrier

20 under this subsection may be used only for the pur21 poses of monitoring compliance by the satellite carrier

22 with this section.

23 ‘‘(4) REQUIREMENTS OF STATIONS.—The sub24 mission requirements of this subsection shall apply to

25 a satellite carrier only if the station to whom the sub-
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1 missions are to be made places on file with the Reg2 ister of Copyrights a document identifying the name

3 and address of the person to whom such submissions

4 are to be made. The Register shall maintain for pub5 lic inspection a file of all such documents.

6 ‘‘(c) NO ROYALTY FEE REQUIRED.—A satellite carrier

7 whose secondary transmissions are subject to statutory li8 censing under subsection (a) shall have no royalty obliga9 tion for such secondary transmissions.

10 ‘‘(d) NONCOMPLIANCE WITH REPORTING REQUIRE11 MENTS.—Notwithstanding subsection (a), the willful or re12 peated secondary transmission to the public by a satellite

13 carrier of a television broadcast station and embodying a

14 performance or display of a work is actionable as an act

15 of infringement under section 501, and is fully subject to

16 the remedies provided under sections 502 through 506 and

17 509, if the satellite carrier has not complied with the report18 ing requirements of subsection (b).

19 ‘‘(e) WILLFUL ALTERATIONS.—Notwithstanding sub20 section (a), the secondary transmission to the public by a

21 satellite carrier into the local market of a television broad22 cast station of a primary transmission made by that tele23 vision broadcast station and embodying a performance or

24 display of a work is actionable as an act of infringement

25 under section 501, and is fully subject to the remedies pro-
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1 vided by sections 502 through 506 and sections 509 and

2 510, if the content of the particular program in which the

3 performance or display is embodied, or any commercial ad4 vertising or station announcement transmitted by the pri5 mary transmitter during, or immediately before or after,

6 the transmission of such program, is in any way willfully

7 altered by the satellite carrier through changes, deletions,

8 or additions, or is combined with programming from any

9 other broadcast signal.

10 ‘‘(f) VIOLATION OF TERRITORIAL RESTRICTIONS ON

11 STATUTORY LICENSE FOR TELEVISION BROADCAST STA12 TIONS.—

13 ‘‘(1) INDIVIDUAL VIOLATIONS.—The willful or re14 peated secondary transmission to the public by a sat15 ellite carrier of a primary transmission made by a

16 television broadcast station and embodying a per17 formance or display of a work to a subscriber who

18 does not reside in that station’s local market, and is

19 not subject to statutory licensing under section 119,

20 is actionable as an act of infringement under section

21 501 and is fully subject to the remedies provided by

22 sections 502 through 506 and 509, except that—

23 ‘‘(A) no damages shall be awarded for such

24 act of infringement if the satellite carrier took
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1 corrective action by promptly withdrawing serv2 ice from the ineligible subscriber; and

3 ‘‘(B) any statutory damages shall not exceed

4 $5 for such subscriber for each month during

5 which the violation occurred.

6 ‘‘(2) PATTERN OF VIOLATIONS.—If a satellite

7 carrier engages in a willful or repeated pattern or

8 practice of secondarily transmitting to the public a

9 primary transmission made by a television broadcast

10 station and embodying a performance or display of a

11 work to subscribers who do not reside in that station’s

12 local market, and are not subject to statutory licens13 ing under section 119, then in addition to the rem14 edies under paragraph (1)—

15 ‘‘(A) if the pattern or practice has been car16 ried out on a substantially nationwide basis, the

17 court shall order a permanent injunction barring

18 the secondary transmission by the satellite car19 rier of the primary transmissions of that tele20 vision broadcast station (and if such television

21 broadcast station is a network station, all other

22 television broadcast stations affiliated with such

23 network), and the court may order statutory

24 damages not exceeding $250,000 for each 6-
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1 month period during which the pattern or prac2 tice was carried out; and

3 ‘‘(B) if the pattern or practice has been car4 ried out on a local or regional basis with respect

5 to more than one television broadcast station

6 (and if such television broadcast station is a net7 work station, all other television broadcast sta8 tions affiliated with such network), the court

9 shall order a permanent injunction barring the

10 secondary transmission in that locality or region

11 by the satellite carrier of the primary trans12 missions of any television broadcast station, and

13 the court may order statutory damages not ex14 ceeding $250,000 for each 6-month period during

15 which the pattern or practice was carried out.

16 ‘‘(g) BURDEN OF PROOF.—In any action brought

17 under subsection (d), (e), or (f), the satellite carrier shall

18 have the burden of proving that its secondary transmission

19 of a primary transmission by a television broadcast station

20 is made only to subscribers located within that station’s

21 local market.

22 ‘‘(h) GEOGRAPHIC LIMITATIONS ON SECONDARY

23 TRANSMISSIONS.—The statutory license created by this sec24 tion shall apply to secondary transmissions to locations in
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1 the United States, and any commonwealth, territory, or

2 possession of the United States.

3 ‘‘(i) EXCLUSIVITY WITH RESPECT TO SECONDARY

4 TRANSMISSIONS OF BROADCAST STATIONS BY SATELLITE

5 TO MEMBERS OF THE PUBLIC.—No provision of section 111

6 or any other law (other than this section and section 119)

7 shall be construed to contain any authorization, exemption,

8 or license through which secondary transmissions by sat9 ellite carriers of programming contained in a primary

10 transmission made by a television broadcast station may

11 be made without obtaining the consent of the copyright

12 owner.

13 ‘‘(j) DEFINITIONS.—In this section—

14 ‘‘(1) The term ‘distributor’ means an entity

15 which contracts to distribute secondary transmissions

16 from a satellite carrier and, either as a single channel

17 or in a package with other programming, provides the

18 secondary transmission either directly to individual

19 subscribers or indirectly through other program dis20 tribution entities.

21 ‘‘(2) The term ‘local market’ for a television

22 broadcast station has the meaning given that term in

23 section 337(h)(2) of the Communications Act of 1934.
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1 ‘‘(3) The terms ‘network station’, ‘satellite car2 rier’ and ‘secondary transmission’ have the meaning

3 given such terms under section 119(d).’’.

4 ‘‘(4) The term ‘subscriber’ means an entity that

5 receives a secondary transmission service by means of

6 a secondary transmission from a satellite and pays a

7 fee for the service, directly or indirectly, to the sat8 ellite carrier or to a distributor.

9 ‘‘(5) The term ‘television broadcast station’

10 means an over-the-air, commercial or noncommercial

11 television broadcast station licensed by the Federal

12 Communications Commission under subpart E of

13 part 73 of title 47, Code of Federal Regulations.’’.

14 (b) TECHNICAL AND CONFORMING AMENDMENTS.—

15 The table of sections for chapter 1 of title 17, United States

16 Code, is amended by adding after the item relating to sec17 tion 121 the following:

‘‘122. Limitations on exclusive rights; secondary transmissions by satellite carriers within local market.’’.

18 SEC. 3. EXTENSION OF EFFECT OF AMENDMENTS TO SEC19 TION 119 OF TITLE 17, UNITED STATES CODE.

20 Section 4(a) of the Satellite Home Viewer Act of 1994

21 (17 U.S.C. 119 note; Public Law 103–369; 108 Stat. 3481)

22 is amended by striking ‘‘December 31, 1999’’ and inserting

23 ‘‘December 31, 2003’’.
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1 SEC. 4. TRANSITION.

2 Section 119(a)(5) of title 17, United States Code, is

3 amended by adding at the end the following:

4 ‘‘(E) TRANSITION.—Notwithstanding sub5 paragraphs (A) and (B), a satellite carrier shall

6 not be required to terminate service of a network

7 station to a subscriber until February 28,

8 1999.’’.

9 SEC. 5. COMPUTATION OF ROYALTY FEES FOR SATELLITE

10 CARRIERS.

11 Section 119(c) of title 17, United States Code, is

12 amended by adding at the end the following new paragraph:

13 ‘‘(4) REDUCTION.—

14 ‘‘(A) SUPERSTATION.—The rate of the roy15 alty fee payable in each case under subsection

16 (b)(1)(B)(i) as adjusted by a royalty fee estab17 lished under paragraph (2) or (3) of this sub18 section shall be reduced by 30 percent.

19 ‘‘(B) NETWORK.—The rate of the royalty fee

20 payable under subsection (b)(1)(B)(ii) as ad21 justed by a royalty fee established under para22 graph (2) or (3) of this subsection shall be re23 duced by 45 percent.

24 ‘‘(5) PUBLIC BROADCASTING SERVICE AS

25 AGENT.—For purposes of section 802, with respect to

26 royalty fees paid by satellite carriers for retransmit-
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1 ting the Public Broadcasting Service satellite feed, the

2 Public Broadcasting Service shall be the agent for all

3 public television copyright claimants and all Public

4 Broadcasting Service member stations.’’.

5 SEC. 6. DEFINITIONS.

6 Section 119(d) of title 17, United States Code, is

7 amended—

8 (1) by striking paragraph (10) and inserting the

9 following:

10 ‘‘(10) UNSERVED HOUSEHOLD.—The term

11 ‘unserved household’, with respect to a particular tele12 vision network, means a household that cannot re13 ceive, through the use of a conventional outdoor roof14 top receiving antenna, an over-the-air signal of grade

15 B intensity (as defined by the Federal Communica16 tions Commission) of a primary network station af17 filiated with that network.’’; and

18 (2) by adding at the end the following:

19 ‘‘(12) LOCAL NETWORK STATION.—The term

20 ‘local network station’ means a network station that

21 is secondarily transmitted to subscribers who reside

22 within the local market in which the network station

23 is located.’’.
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1 SEC. 7. PUBLIC BROADCASTING SERVICE SATELLITE FEED.

2 (a) SECONDARY TRANSMISSIONS.—Section 119(a)(1)

3 of title 17, United States Code, is amended—

4 (1) by striking the paragraph heading and in5 serting ‘‘(1) SUPERSTATIONS AND PBS SATELLITE

6 FEED.—’’;

7 (2) by inserting ‘‘or by the Public Broadcasting

8 Service satellite feed’’ after ‘‘superstation’’; and

9 (3) by adding at the end the following: ‘‘In the

10 case of the Public Broadcasting Service satellite feed,

11 subsequent to January 1, 2001, or the date on which

12 local retransmissions of broadcast signals are offered

13 to the public, whichever is earlier, the statutory li14 cense created by this section shall be conditioned on

15 the Public Broadcasting Service certifying to the

16 Copyright Office on an annual basis that its member17 ship supports the secondary transmission of the Pub18 lic Broadcasting Service satellite feed, and providing

19 notice to the satellite carrier of such certification.’’.

20 (b) DEFINITION.—Section 119(d) of title 17, United

21 States Code, is amended by adding at the end the following:

22 ‘‘(12) PUBLIC BROADCASTING SERVICE SAT23 ELLITE FEED.—The term ‘Public Broadcasting Serv24 ice satellite feed’ means the national satellite feed dis25 tributed by the Public Broadcasting Service consist26 ing of educational and informational programming
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1 intended for private home viewing, to which the Pub2 lic Broadcasting Service holds national terrestrial

3 broadcast rights.’’.

4 SEC. 8. APPLICATION OF FEDERAL COMMUNICATIONS COM5 MISSION REGULATIONS.

6 Section 119(a) of title 17, United States Code, is

7 amended—

8 (1) in paragraph (1), by inserting ‘‘is permis9 sible under the rules, regulations, and authorizations

10 of the Federal Communications Commission,’’ after

11 ‘‘satellite carrier to the public for private home view12 ing,’’; and

13 (2) in paragraph (2), by inserting ‘‘is permis14 sible under the rules, regulations, and authorizations

15 of the Federal Communications Commission,’’ after

16 ‘‘satellite carrier to the public for private home view17 ing,’’.

18 SEC. 9. EFFECTIVE DATE.

19 This Act and the amendments made by this Act shall

20 take effect on January 1, 1999, except section 4 shall take

21 effect on the date of enactment of this Act.