II

Calendar No. 24

106TH CONGRESS

1ST SESSION S. 247

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

JANUARY 19, 1999

Mr. HATCH (for himself, Mr. LEAHY, Mr. MCCAIN, Mr. DEWINE, Mr. KOHL,

Mr. LOTT, Mr. JEFFORDS, Mr. COCHRAN, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

MARCH 2, 1999

Reported by Mr. HATCH, with amendments

[Omit the part struck through 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 ‘‘Satellite Home Viewers

5 Improvements Act’’.
2

S 247 RS

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

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

6 following 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

14 shall be subject to statutory licensing under this section

15 if—

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

17 satellite carrier to the public;

18 ‘‘(2) the secondary transmission is permissible

19 under the rules, regulations, or authorizations of the

20 Federal Communications Commission; and

21 ‘‘(3) the satellite carrier makes a direct or indi22 rect charge for the secondary transmission to—

23 ‘‘(A) each subscriber receiving the second24 ary transmission; or
3

S 247 RS

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

2 the satellite carrier for direct or indirect deliv3 ery of the secondary transmission to the public.

4 ‘‘(b) REPORTING REQUIREMENTS.—

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

6 makes secondary transmissions of a primary trans7 mission made by a network station under subsection

8 (a) shall, within 90 days after commencing such sec9 ondary transmissions, submit to that station a list

10 identifying (by name and street address, including

11 county and zip code) all subscribers to which the

12 satellite carrier currently makes secondary trans13 missions of that primary transmission.

14 ‘‘(2) SUBSEQUENT LISTS.—After the list is sub15 mitted under paragraph (1), the satellite carrier

16 shall, on the 15th of each month, submit to the sta17 tion a list identifying (by name and street address,

18 including county and zip code) any subscribers who

19 have been added or dropped as subscribers since the

20 last submission under this subsection.

21 ‘‘(3) USE OF SUBSCRIBER INFORMATION.—Sub22 scriber information submitted by a satellite carrier

23 under this subsection may be used only for the pur24 poses of monitoring compliance by the satellite car25 rier with this section.
4

S 247 RS

1 ‘‘(4) REQUIREMENTS OF STATIONS.—The sub2 mission requirements of this subsection shall apply

3 to a satellite carrier only if the station to whom the

4 submissions are to be made places on file with the

5 Register of Copyrights a document identifying the

6 name and address of the person to whom such sub7 missions are to be made. The Register shall main8 tain for public inspection a file of all such docu9 ments.

10 ‘‘(c) NO ROYALTY FEE REQUIRED.—A satellite car11 rier whose secondary transmissions are subject to statu12 tory licensing under subsection (a) shall have no royalty

13 obligation for such secondary transmissions.

14 ‘‘(d) NONCOMPLIANCE WITH REPORTING REQUIRE15 MENTS.—Notwithstanding subsection (a), the willful or

16 repeated secondary transmission to the public by a sat17 ellite carrier into the local market of a television broadcast

18 station of a primary transmission made by that television

19 broadcast station and embodying a performance or display

20 of a work is actionable as an act of infringement under

21 section 501, and is fully subject to the remedies provided

22 under sections 502 through 506 and 509, if the satellite

23 carrier has not complied with the reporting requirements

24 of subsection (b).
5

S 247 RS

1 ‘‘(e) WILLFUL ALTERATIONS.—Notwithstanding

2 subsection (a), the secondary transmission to the public

3 by a satellite carrier into the local market of a television

4 broadcast station of a primary transmission made by that

5 television broadcast station and embodying a performance

6 or display of a work is actionable as an act of infringement

7 under section 501, and is fully subject to the remedies pro8 vided by sections 502 through 506 and sections 509 and

9 510, if the content of the particular program in which the

10 performance or display is embodied, or any commercial ad11 vertising or station announcement transmitted by the pri12 mary transmitter during, or immediately before or after,

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

14 altered by the satellite carrier through changes, deletions,

15 or additions, or is combined with programming from any

16 other broadcast signal.

17 ‘‘(f) VIOLATION OF TERRITORIAL RESTRICTIONS ON

18 STATUTORY LICENSE FOR TELEVISION BROADCAST STA19 TIONS.—

20 ‘‘(1) INDIVIDUAL VIOLATIONS.—The willful or

21 repeated secondary transmission to the public by a

22 satellite carrier of a primary transmission made by

23 a television broadcast station and embodying a per24 formance or display of a work to a subscriber who

25 does not reside in that station’s local market, and is
6

S 247 RS

1 not subject to statutory licensing under section 119,

2 is actionable as an act of infringement under section

3 501 and is fully subject to the remedies provided by

4 sections 502 through 506 and 509, except that—

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

6 act of infringement if the satellite carrier took

7 corrective action by promptly withdrawing serv8 ice from the ineligible subscriber; and

9 ‘‘(B) any statutory damages shall not ex10 ceed $5 for such subscriber for each month dur11 ing which the violation occurred.

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

13 carrier engages in a willful or repeated pattern or

14 practice of secondarily transmitting to the public a

15 primary transmission made by a television broadcast

16 station and embodying a performance or display of

17 a work to subscribers who do not reside in that sta18 tion’s local market, and are not subject to statutory

19 licensing under section 119, then in addition to the

20 remedies under paragraph (1)—

21 ‘‘(A) if the pattern or practice has been

22 carried out on a substantially nationwide basis,

23 the court shall order a permanent injunction

24 barring the secondary transmission by the sat25 ellite carrier of the primary transmissions of
7

S 247 RS

1 that television broadcast station (and if such

2 television broadcast station is a network sta3 tion, all other television broadcast stations af4 filiated with such network), and the court may

5 order statutory damages not exceeding

6 $250,000 for each 6-month period during which

7 the pattern or practice was carried out; and

8 ‘‘(B) if the pattern or practice has been

9 carried out on a local or regional basis with re10 spect to more than one television broadcast sta11 tion (and if such television broadcast station is

12 a network station, all other television broadcast

13 stations affiliated with such network), the court

14 shall order a permanent injunction barring the

15 secondary transmission in that locality or re16 gion by the satellite carrier of the primary

17 transmissions of any television broadcast sta18 tion, and the court may order statutory dam19 ages not exceeding $250,000 for each 6-month

20 period during which the pattern or practice was

21 carried out.

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

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

24 have the burden of proving that its secondary transmission

25 of a primary transmission by a television broadcast station
8

S 247 RS

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

2 local market.

3 ‘‘(h) GEOGRAPHIC LIMITATIONS ON SECONDARY

4 TRANSMISSIONS.—The statutory license created by this

5 section shall apply to secondary transmissions to locations

6 in the United States, and any commonwealth, territory,

7 or possession of the United States.

8 ‘‘(i) EXCLUSIVITY WITH RESPECT TO SECONDARY

9 TRANSMISSIONS OF BROADCAST STATIONS BY SATELLITE

10 TO MEMBERS OF THE PUBLIC.—No provision of section

11 111 or any other law (other than this section and section

12 119) shall be construed to contain any authorization, ex13 emption, or license through which secondary transmissions

14 by satellite carriers of programming contained in a pri15 mary transmission made by a television broadcast station

16 may be made without obtaining the consent of the copy17 right owner.

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

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

20 which contracts to distribute secondary trans21 missions from a satellite carrier and, either as a sin22 gle channel or in a package with other programming,

23 provides the secondary transmission either directly

24 to individual subscribers or indirectly through other

25 program distribution entities.
9

S 247 RS

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

2 broadcast station has the meaning given that term

3 under rules, regulations, and authorizations of the

4 Federal Communications Commission relating to

5 carriage of television broadcast signals by satellite

6 carriers.

7 ‘‘(3) The terms ‘network station’, ‘satellite car8 rier’ and ‘secondary transmission’ have the meaning

9 given such terms under section 119(d).

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

11 receives a secondary transmission service by means

12 of a secondary transmission from a satellite and

13 pays a fee for the service, directly or indirectly, to

14 the satellite carrier or to a distributor.

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

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

17 television broadcast station licensed by the Federal

18 Communications Commission under subpart E of

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

20 (b) TECHNICAL AND CONFORMING AMENDMENTS.—

21 The table of sections for chapter 1 of title 17, United

22 States Code, is amended by adding after the item relating

23 to section 121 the following:

‘‘122. Limitations on exclusive rights; secondary transmissions by satellite carriers within local market.’’.
10

S 247 RS

1 SEC. 3. EXTENSION OF EFFECT OF AMENDMENTS TO SEC2 TION 119 OF TITLE 17, UNITED STATES CODE.

3 Section 4(a) of the Satellite Home Viewer Act of

4 1994 (17 U.S.C. 119 note; Public Law 103–369; 108

5 Stat. 3481) is amended by striking ‘‘December 31, 1999’’

6 and inserting ‘‘December 31, 2004’’.

7 SEC. 4. COMPUTATION OF ROYALTY FEES FOR SATELLITE

8 CARRIERS.

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

10 amended by adding at the end the following new para11 graph:

12 ‘‘(4) REDUCTION.—

13 ‘‘(A) SUPERSTATION.—The rate of the

14 royalty fee payable in each case under sub15 section (b)(1)(B)(i) as adjusted by a royalty fee

16 established under paragraph (2) or (3) of this

17 subsection shall be reduced by 30 percent.

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

19 fee payable under subsection (b)(1)(B)(ii) as

20 adjusted by a royalty fee established under

21 paragraph (2) or (3) of this subsection shall be

22 reduced by 45 percent.

23 ‘‘(A) SUPERSTATION.—The rate of the roy24 alty fee in effect on January 1, 1998 payble in

25 each case under subsection (b)(1)(B)(i) shall be

26 reduced by 30 percent.
11

S 247 RS

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

2 in effect on January 1, 1998 payable under

3 susection (b)(1)(B)(ii) shall be reduced by 45

4 percent.

5 ‘‘(5) PUBLIC BROADCASTING SERVICE AS

6 AGENT.—For purposes of section 802, with respect

7 to royalty fees paid by satellite carriers for re8 transmitting the Public Broadcasting Service sat9 ellite feed, the Public Broadcasting Service shall be

10 the agent for all public television copyright claimants

11 and all Public Broadcasting Service member sta12 tions.’’.

13 SEC. 5. DEFINITIONS.

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

15 amended—

16 (1) by striking paragraph (10) and inserting

17 the following:

18 SEC. 5. DEFINITIONS.

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

20 amended by striking paragraph (10) and inserting the fol21 lowing:

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

23 ‘unserved household’, with respect to a particular

24 television network, means a household that cannot

25 receive, through the use of a conventional outdoor
12

S 247 RS

1 rooftop receiving antenna, an over-the-air signal of

2 grade B intensity (as defined by the Federal Com3 munications Commission) of a primary network sta4 tion affiliated with that network.’’.; and

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

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

7 ‘local network station’ means a network station that

8 is secondarily transmitted to subscribers who reside

9 within the local market in which the network station

10 is located.’’.

11 SEC. 6. PUBLIC BROADCASTING SERVICE SATELLITE FEED.

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

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

14 (1) by striking the paragraph heading and in15 serting ‘‘(1) SUPERSTATIONS AND PBS SATELLITE

16 FEED.—’’;

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

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

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

20 case of the Public Broadcasting Service satellite

21 feed, subsequent to January 1, 2001, or the date on

22 which local retransmissions of broadcast signals are

23 offered to the public, whichever is earlier, the statu24 tory license created by this section shall be condi25 tioned on the Public Broadcasting Service certifying
13

S 247 RS

1 to the Copyright Office on an annual basis that its

2 membership supports the secondary transmission of

3 the Public Broadcasting Service satellite feed, and

4 providing notice to the satellite carrier of such cer5 tification.’’.

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

7 States Code, is amended by adding at the end the follow8 ing:

9 ‘‘(12) PUBLIC BROADCASTING SERVICE SAT10 ELLITE FEED.—The term ‘Public Broadcasting

11 Service satellite feed’ means the national satellite

12 feed distributed by the Public Broadcasting Service

13 consisting of educational and informational program14 ming intended for private home viewing, to which

15 the Public Broadcasting Service holds national ter16 restrial broadcast rights.’’.

17 SEC. 7. APPLICATION OF FEDERAL COMMUNICATIONS

18 COMMISSION REGULATIONS.

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

20 amended—

21 (1) in paragraph (1), by inserting ‘‘is permis22 sible under the rules, regulations, and authorizations

23 of the Federal Communications Commission,’’ after

24 ‘‘satellite carrier to the public for private home view25 ing,’’; and
14

S 247 RS

1 (2) in paragraph (2), by inserting ‘‘is permis2 sible under the rules, regulations, and authorizations

3 of the Federal Communications Commission,’’ after

4 ‘‘satellite carrier to the public for private home view5 ing,’’.

6 SEC. 8. EFFECTIVE DATE.

7 This Act and the amendments made by this Act shall

8 take effect on January 1, 1999, except the amendments

9 made by section 4 shall take effect on July 1, 1999.

Calendar No. 24

106TH CONGRESS

1ST SESSION S. 247

A BILL

To amend title 17, United States Code, to reform

purposes.transmissions of broadcast signals, and for otherthe copyright law with respect to satellite reMARCH 2, 1999

Reported with amendments