IB 

Union Calendar No. 405 

111TH CONGRESS 

2D SESSION H. R. 848 

[Report No. 111–680] 

To provide parity in radio performance rights under title 17, United States 

Code, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 4, 2009 

Mr. CONYERS (for himself, Mr. ISSA, Mr. BERMAN, Mrs. BLACKBURN, Mr. 

HODES, Ms. WASSERMAN SCHULTZ, Mr. WEINER, Mr. COHEN, Mr. NADLER of New York, Mr. WEXLER, Mr. PETERSON, Mr. JOHNSON of Georgia, Mr. SCHIFF, Mr. SHERMAN, Mr. SHADEGG, Ms. JACKSON-LEE of 

Texas, Ms. LINDA T. SA ́NCHEZ of California, Ms. HARMAN, and Mr. 

WAXMAN) introduced the following bill; which was referred to the Committee on the Judiciary 

DECEMBER 14, 2010 

Additional sponsors: Ms. SLAUGHTER, Mr. COOPER, Mr. HIGGINS, Mr. POLIS

of Colorado, Mr. MORAN of Virginia, Mrs. CAPPS, Mr. TONKO, Mr. 

TOWNS, Mr. HOLT, Mr. ROTHMAN of New Jersey, Ms. CLARKE, Mr. 

ISRAEL, Mr. GUTIERREZ, Mr. CLEAVER, Mr. THOMPSON of Mississippi, 

Ms. FUDGE, Mr. GEORGE MILLER of California, Mr. WAMP, Mr. VAN

HOLLEN, Mr. INSLEE, Mr. CROWLEY, Ms. WATSON, Mr. GORDON of 

Tennessee, Ms. ESHOO, Mrs. MALONEY, Mr. TIERNEY, Mr. BRADY of 

Pennsylvania, Ms. SUTTON, Mr. GARAMENDI, Ms. SCHAKOWSKY, Ms. 

WOOLSEY, Mr. KENNEDY, Mr. DEUTCH, and Mr. ROONEY

DECEMBER 14, 2010 

Deleted sponsors: Mr. ADLER of New Jersey (added March 3, 2009; deleted 

July 30, 2009), Ms. EDDIE BERNICE JOHNSON of Texas (added March 

10, 2009; deleted May 14, 2009), and Ms. NORTON (added March 10, 

2009; deleted June 11, 2009) 


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DECEMBER 14, 2010 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

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

[For text of introduced bill, see copy of bill as introduced on February 4, 2009] 

A BILL 

To provide parity in radio performance rights under title 

17, United States Code, and for other purposes. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Performance Rights 

5 Act’’. 

6 SEC. 2. ESTABLISHING EQUITABLE TREATMENT FOR TER7 RESTRIAL, CABLE, SATELLITE, AND INTER8 NET SERVICES. 

9 (a) PERFORMANCE RIGHT APPLICABLE TO RADIO

10 TRANSMISSIONS GENERALLY.—Section 106(6) of title 17, 

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

12 ‘‘(6) in the case of sound recordings, to perform 

13 the copyrighted work publicly by means of an audio 

14 transmission.’’. 

15 (b) INCLUSION OF TERRESTRIAL BROADCASTS IN EX16 ISTING PERFORMANCE RIGHT.—Section 114(d)(1) of title 

17 17, United States Code, is amended— 


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1 (1) in the matter preceding subparagraph (A), 

2 by striking ‘‘a digital’’ and inserting ‘‘an’’; and 

3 (2) by striking subparagraph (A). 

4 (c) INCLUSION OF TERRESTRIAL BROADCASTS IN EX5 ISTING STATUTORY LICENSE SYSTEM.—Section 114(j)(6) of 

6 title 17, United States Code, is amended by striking ‘‘dig7 ital’’. 

8 (d) ENSURING PLATFORM PARITY.—Section 114(f) of 

9 title 17, United States Code, is amended— 

10 (1) by striking paragraph (1); 

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

12 and (5) as paragraphs (1), (2), (3), and (4), respec13 tively; and 

14 (3) in paragraph (1), as redesignated— 

15 (A) in subparagraph (A), by striking 

16 ‘‘under chapter 8’’ and all that follows through 

17 the end of the third sentence and inserting 

18 ‘‘under chapter 8 shall determine reasonable 

19 rates and terms of royalty payments for trans20 missions subject to statutory licensing under sub21 section (d)(2) during 5-year periods beginning 

22 on January 1 of the second year following the 

23 year in which the proceedings are to be com24 menced, except in the case of a different transi25 tional period provided under section 6(b)(3) of 


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1 the Copyright Royalty and Distribution Reform 

2 Act of 2004, or such other period as the parties 

3 may agree.’’; 

4 (B) in subparagraph (B)— 

5 (i) in the second sentence, by striking 

6 ‘‘eligible nonsubscription transmission’’; 

7 and 

8 (ii) in the third sentence, by striking 

9 ‘‘eligible nonsubscription services and new 

10 subscription’’ and all that follows through 

11 ‘‘subparagraph (A)’’ and inserting ‘‘services, 

12 in addition to the objectives set forth in sub13 paragraphs (A), (B), and (C) of section 

14 801(b)(1), the Copyright Royalty Judges 

15 may consider the rates and terms for com16 parable types of services and comparable 

17 circumstances under voluntary license 

18 agreements. Notwithstanding section 

19 801(b)(1), the provisions of section 

20 801(b)(1)(D) shall not be taken into account 

21 by the Copyright Royalty Judges in any 

22 proceeding under this section’’; 

23 (C) by striking subparagraph (C) and in24 serting the following: 


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1 ‘‘(C) The procedures under subparagraphs 

2 (A) and (B) shall also be initiated pursuant to 

3 a petition filed by any copyright owner of sound 

4 recordings or any transmitting entity indicating 

5 that a new type of service on which sound re6 cordings are performed is or is about to become 

7 operational, for the purpose of determining rea8 sonable terms and rates of royalty payments 

9 with respect to such new type of service for the 

10 period beginning with the inception of such new 

11 type of service and ending on the date on which 

12 the royalty rates and terms for preexisting serv13 ices most recently determined under subpara14 graph (A) or (B) and chapter 8 expire, or such 

15 other period as the parties may agree.’’. 

16 (e) TECHNICAL AND CONFORMING AMENDMENTS.— 

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

18 United States Code (as amended by subsection (d)), 

19 is further amended— 

20 (A) in paragraph (1)(B), in the first sen21 tence, by striking ‘‘paragraph (3)’’ and inserting 

22 ‘‘paragraph (2)’’; and 

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

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

25 paragraph (3)’’. 


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1 (2) SECTION 114(J).—Section 114(j)(6) of title 

2 17, United States Code, is amended by striking ‘‘re3 transmissions of broadcast transmissions’’ and insert4 ing ‘‘broadcast transmissions and retransmissions of 

5 broadcast transmissions’’. 

6 (3) SECTION 804.—Section 804(b)(3)(C) of title 

7 17, United States Code, is amended— 

8 (A) in clause (i), by striking ‘‘and 

9 114(f)(2)(C)’’; 

10 (B) in clause (iii)(II), by striking 

11 ‘‘114(f)(4)(B)(ii)’’ and inserting 

12 ‘‘114(f)(3)(B)(ii)’’; and 

13 (C) in clause (iv), by striking ‘‘or 

14 114(f)(2)(C), as the case may be’’. 

15 SEC. 3. TREATMENT FOR MINORITY, FEMALE, RELIGIOUS, 

16 RURAL, SMALL, NONCOMMERCIAL, PUBLIC, 

17 EDUCATIONAL, AND COMMUNITY STATIONS 

18 AND CERTAIN USES. 

19 (a) MINORITY, FEMALE, RELIGIOUS, RURAL, SMALL, 

20 NONCOMMERCIAL, PUBLIC, EDUCATIONAL, AND COMMUNITY

21 RADIO STATIONS.— 

22 (1) IN GENERAL.—Section 114(f)(1) of title 17, 

23 United States Code, as redesignated by section 2(d), 

24 is amended by adding at the end the following: 


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1 ‘‘(D)(i) Notwithstanding the provisions of 

2 subparagraphs (A) through (C), each individual 

3 terrestrial broadcast station that has gross reve4 nues within a range specified in clause (ii) may 

5 elect to pay for its over-the-air nonsubscription 

6 broadcast transmissions a royalty fee as pro7 vided in clause (ii), in lieu of the amount such 

8 station would otherwise be required to pay under 

9 this paragraph. Such royalty fee shall not be 

10 taken into account in determining royalty rates 

11 in a proceeding under chapter 8, or in any other 

12 administrative, judicial, or other Federal Gov13 ernment proceeding. 

14 ‘‘(ii) As provided in clause (i), each indi15 vidual terrestrial broadcast station that has gross 

16 revenues in any calendar year of— 

17 ‘‘(I) less than $100,000 may elect to 

18 pay for its over-the-air nonsubscription 

19 broadcast transmissions a royalty fee of 

20 $500 per year; 

21 ‘‘(II) at least $100,000 but less than 

22 $500,000 may elect to pay for its over-the23 air nonsubscription broadcast transmissions 

24 a royalty fee of $2,500 per year; and 


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1 ‘‘(III) at least $500,000 but less than 

2 $1,250,000 may elect to pay for its over-the3 air nonsubscription broadcast transmissions 

4 a royalty fee of $5,000 per year. 

5 ‘‘(E)(i) Notwithstanding the provisions of 

6 subparagraphs (A) through (C), each individual 

7 terrestrial broadcast station that is a public 

8 broadcasting entity as defined in section 118(f) 

9 and that has gross revenues within a range spec10 ified in clause (ii) may elect to pay for its over11 the-air nonsubscription broadcast transmissions 

12 a royalty fee as provided in clause (ii), in lieu 

13 of the amount such station would otherwise be 

14 required to pay under this paragraph. Such roy15 alty fee shall not be taken into account in deter16 mining royalty rates in a proceeding under 

17 chapter 8, or in any other administrative, judi18 cial, or other Federal Government proceeding. 

19 ‘‘(ii) As provided in clause (i), each indi20 vidual terrestrial broadcast station that is a 

21 public broadcasting entity as defined in section 

22 118(f) and has gross receipts in any calendar 

23 year of— 

24 ‘‘(I) less than $100,000 may elect to 

25 pay for its over-the-air nonsubscription 


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1 broadcast transmissions a royalty fee of 

2 $500 per year; and 

3 ‘‘(II) $100,000 or more may elect to 

4 pay for its over-the-air nonsubscription 

5 broadcast transmissions a royalty fee of 

6 $1,000 per year. 

7 ‘‘(F) Notwithstanding the provisions of sub8 paragraphs (A) through (E), each individual ter9 restrial broadcast station that had total gross 

10 revenues during the 4 full calendar quarters im11 mediately preceding the date of enactment of the 

12 Performance Rights Act of— 

13 ‘‘(i) less than $5,000,000 shall not be 

14 required to pay a royalty under this para15 graph during the 3 years immediately fol16 lowing the date of enactment of the Per17 formance Rights Act; and 

18 ‘‘(ii) $5,000,000 or more shall not be 

19 required to pay a royalty under this para20 graph during the 1 year immediately fol21 lowing the date of enactment of the Per22 formance Rights Act. 

23 The provisions of this subparagraph shall not be 

24 taken into account in determining royalty rates 

25 in a proceeding under chapter 8, or in any other 


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1 administrative, judicial, or other Federal Gov2 ernment proceeding.’’. 

3 (2) PAYMENT DATE.—A payment under subpara4 graph (D) or (E) of section 114(f)(1) of title 17, 

5 United States Code, as added by paragraph (1), shall 

6 not be due until the due date of the first royalty pay7 ments for nonsubscription broadcast transmissions 

8 that are determined, after the date of the enactment 

9 of this Act, under such section 114(f)(2) by reason of 

10 the amendment made by section 2(b)(2) of this Act. 

11 (b) TRANSMISSION OF RELIGIOUS SERVICES; INCI12 DENTAL USES OF MUSIC.—Section 114(d)(1) of title 17, 

13 United States Code, as amended by section 2(b), is further 

14 amended by inserting the following before subparagraph 

15 (B): 

16 ‘‘(A) an eligible nonsubscription trans17 mission of— 

18 ‘‘(i) services at a place of worship or 

19 other religious assembly; and 

20 ‘‘(ii) an incidental use of a musical 

21 sound recording;’’. 

22 SEC. 4. AVAILABILITY OF PER PROGRAM LICENSE. 

23 Section 114(f)(1)(B) of title 17, United States Code, 

24 as redesignated by section 2(d), is amended by inserting 

25 after the second sentence the following new sentence: ‘‘Such 


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1 rates and terms shall include a per program license option 

2 for terrestrial broadcast stations that make limited feature 

3 uses of sound recordings.’’ 

4 SEC. 5. NO HARMFUL EFFECTS ON SONGWRITERS. 

5 (a) NO ADVERSE AFFECT ON LICENSE FEES FOR UN6 DERLYING MUSICAL WORKS; NECESSITY FOR OTHER LI7 CENSES.— 

8 (1) IN GENERAL.—Section 114(i) of title 17, 

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

10 ‘‘(i) NO ADVERSE AFFECT ON LICENSE FEES FOR UN11 DERLYING MUSICAL WORKS; NECESSITY FOR OTHER LI12 CENSES.— 

13 ‘‘(1) NO ADVERSE AFFECT ON LICENSE FEES FOR

14 UNDERLYING MUSICAL WORKS.—License fees payable 

15 for the public performance of sound recordings under 

16 section 106(6) shall not be cited, taken into account, 

17 or otherwise used in any administrative, judicial, or 

18 other governmental forum or proceeding, or otherwise, 

19 to set or adjust the license fees payable to copyright 

20 owners of musical works or their representatives for 

21 the public performance of their works, for the purpose 

22 of reducing or adversely affecting such license fees. Li23 cense fees payable to copyright owners for the public 

24 performance of their musical works shall not be reVerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848

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1 duced or adversely affected in any respect as a result 

2 of the rights granted by section 106(6). 

3 ‘‘(2) NECESSITY FOR OTHER LICENSES.—Not4 withstanding the grant by an owner of copyright in 

5 a sound recording of an exclusive or nonexclusive li6 cense of the right under section 106(6) to perform the 

7 work publicly, a licensee of that sound recording may 

8 not publicly perform such sound recording unless a li9 cense has been granted for the public performance of 

10 any copyrighted musical work contained in the sound 

11 recording. Such license to publicly perform the copy12 righted musical work may be granted either by a per13 forming rights society representing the copyright 

14 owner or by the copyright owner.’’. 

15 (2) CONFORMING AMENDMENT.—Section 

16 114(d)(3)(C) of title 17, United States Code, is hereby 

17 repealed. 

18 (b) PUBLIC PERFORMANCE RIGHTS AND ROYAL19 TIES.—Nothing in this Act or the amendments made by this 

20 Act shall adversely affect in any respect the public perform21 ance rights of or royalties payable to songwriters or copy22 right owners of musical works. 

23 (c) PRESERVATION OF ROYALTIES ON UNDERLYING

24 WORKS PUBLICLY PERFORMED BY TERRESTRIAL BROAD25 CAST STATIONS.—Section 114(f) of title 17, United States 


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1 Code, (as amended by section 2(d)) is further amended by 

2 adding at the end the following new paragraph: 

3 ‘‘(5) Notwithstanding any other provision of this 

4 section, under no circumstances shall the rates estab5 lished by the Copyright Royalty Judges for the public 

6 performance of sound recordings be cited, taken into 

7 account, or otherwise used in any administrative, ju8 dicial, or other governmental forum or proceeding, or 

9 otherwise, to reduce or adversely affect the license fees 

10 payable to copyright owners of musical works or their 

11 representatives for the public performance of their 

12 works by terrestrial broadcast stations, and such li13 cense fees for the public performance of musical works 

14 shall be independent of license fees paid for the public 

15 performance of sound recordings.’’. 

16 SEC. 6. PAYMENT OF CERTAIN ROYALTIES. 

17 Section 114(g) of title 17, United States Code, is 

18 amended— 

19 (1) by amending paragraph (1) to read as fol20 lows: 

21 ‘‘(1) Except in the case of a transmission to 

22 which paragraph (5) applies or a transmission li23 censed under a statutory license in accordance with 

24 subsection (f) of this section, the following shall apply: 


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1 ‘‘(A) A featured recording artist who per2 forms on a sound recording that has been li3 censed for public performance by means of an 

4 audio transmission shall be entitled to receive 

5 payments from the copyright owner of the sound 

6 recording in accordance with the terms of the 

7 artist’s contract. 

8 ‘‘(B)(i) In a case in which the copyright 

9 owner of a sound recording has licensed the 

10 sound recording for the public performance of the 

11 sound recording by means of an audio trans12 mission, the copyright owner shall deposit 1 per13 cent of the receipts from the license with the 

14 American Federation of Musicians and Amer15 ican Federation of Television and Radio Artists 

16 Intellectual Property Rights Distribution Fund 

17 (or any successor entity) (in this subparagraph 

18 referred to as the ‘Fund’) to be distributed to 

19 nonfeatured performers who have performed on 

20 sound recordings. The sound recording copyright 

21 owner shall make such deposits for receipts re22 ceived during the first half of a calendar year by 

23 August 15 and for receipts received during the 

24 second half of a calendar year by February 15 

25 of the following calendar year. 


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1 ‘‘(ii) A sound recording copyright owner 

2 shall include with deposits under clause (i) in3 formation regarding the amount of such deposits 

4 attributable to each licensee and, subject to ob5 taining consent, if necessary, from such licensee, 

6 for each sound recording performed by means of 

7 an audio transmission by such licensee during 

8 the applicable time period, and to the extent in9 cluded in the accounting reports provided by the 

10 licensee to the sound recording copyright 

11 owner— 

12 ‘‘(I) the identity of the artist; 

13 ‘‘(II) the International Standard Re14 cording Code of the sound recording; 

15 ‘‘(III) the title of the sound recording; 

16 ‘‘(IV) the number of times the sound 

17 recording was transmitted; and 

18 ‘‘(V) the total amount of receipts col19 lected from that licensee. 

20 ‘‘(iii) The Fund shall make the distribu21 tions described in clause (i) as follows: 50 per22 cent shall be paid to nonfeatured musicians 

23 (whether or not members of the American Fed24 eration of Musicians) and 50 percent shall be 

25 paid to nonfeatured vocalists (whether or not 


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1 members of the American Federation of Tele2 vision and Radio Artists). The Fund may, prior 

3 to making such distributions, deduct the reason4 able costs related to making such distributions. 

5 ‘‘(iv) The sound recording copyright owner 

6 shall not be required to provide any additional 

7 information to the Fund other than what is re8 quired under this subparagraph. Sound record9 ing copyright owners shall use reasonable good 

10 faith efforts to include in all relevant licenses a 

11 requirement to report the information identified 

12 in subclauses (I) through (V) of clause (ii). 

13 Amounts required under clause (i) that are not 

14 paid by the date specified in such clause shall be 

15 subject to interest at the rate of 6 percent per 

16 annum for each day of nonpayment after the 

17 date the payment was due.’’; 

18 (2) in paragraph (2)(A), by striking ‘‘digital’’; 

19 and 

20 (3) by adding at the end the following new para21 graph: 

22 ‘‘(5) Notwithstanding paragraph (1), to the ex23 tent that a license granted by the copyright owner of 

24 a sound recording to a terrestrial broadcast station 

25 extends to such station’s nonsubscription broadcast 


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1 transmissions otherwise licensable under a statutory 

2 license in accordance with subsection (f), the station 

3 shall pay to the agent designated to distribute statu4 tory licensing receipts from the licensing of trans5 missions in accordance with subsection (f), 50 percent 

6 of the total royalties that the station is required to 

7 pay for such transmissions under the applicable li8 cense agreement. That agent shall distribute such pay9 ments in proportion to the distributions provided in 

10 subparagraphs (B) through (D) of paragraph (2), and 

11 such payments shall be the sole payments to which 

12 featured and nonfeatured artists are entitled by virtue 

13 of such transmissions under the direct license with 

14 that station.’’. 

15 SEC. 7. NO EFFECT ON LOCAL COMMUNITIES. 

16 Section 114(f) of title 17, United States Code, (as 

17 amended by section 5(c)) is further amended by adding at 

18 the end the following new paragraph: 

19 ‘‘(6) Neither this subsection nor the payment of 

20 royalties by broadcasters hereunder shall affect in any 

21 respect the public interest obligations of a broadcaster 

22 to its local community under part 73 of title 47 of 

23 the Code of Federal Regulations.’’. 


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1 SEC. 8. PRESERVATION OF DIVERSITY. 

2 Section 114(f) of title 17, United States Code, (as 

3 amended by section 7) is further amended by adding at the 

4 end the following new paragraph: 

5 ‘‘(7) PRESERVATION OF DIVERSITY.—The Copy6 right Royalty Judges shall, in making determinations 

7 or adjustments of rates and terms of copyright roy8 alty payments for public performances of sound re9 cordings, consider evidence on the effect of such rates 

10 and terms on— 

11 ‘‘(A) religious, minority-owned, female12 owned, small, and noncommercial broadcasters; 

13 ‘‘(B) non-music programming, including 

14 local news and information programming for 

15 stations that are part of station groups in which 

16 all stations within the group are located in one 

17 designated market area (as such term is defined 

18 in section 122(j)(2)(C)); and 

19 ‘‘(C) religious, minority or minority-owned, 

20 and female or female-owned royalty recipients.’’. 


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Union Calendar No. 405 

111TH CONGRESS 

2D SESSION H. R. 848 

[Report No. 111–680] 

A BILL 

To provide parity in radio performance rights under 

poses. title 17, United States Code, and for other purDECEMBER 14, 2010 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


hsrobinson on DSK69SOYB1PROD with BILLS