I
105TH CONGRESS
1ST SESSION
H. R. 789
To amend title 17, United States Code, with respect to certain exemptions
from copyright, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 13, 1997
Mr. SENSENBRENNER (for himself, Mr. BURR of North Carolina, Mr.
CUNNINGHAM, Mr. GILLMOR, Mr. NORWOOD, Mr. MCHUGH, Mr. AN-
DREWS, Mr. ENSIGN, Mr. MASCARA, Mr. HERGER, Mr. LEWIS of Califor-
nia, Mr. BURTON of Indiana, Mr. PETRI, Mr. SMITH of New Jersey, Mr.
PARKER, Mr. MCDERMOTT, Mr. THORNBERRY, Mr. CHRISTENSEN, Mr.
INGLIS of South Carolina, Mr. DAVIS of Virginia, Mr. LATOURETTE, Mr.
EHLERS, Mr. EHRLICH, Mr. HOEKSTRA, Ms. JACKSON-LEE of Texas,
Mr. PETERSON of Minnesota, Mr. LOBIONDO, Mrs. SMITH of Washing-
ton, Mr. HOLDEN, Mr. SCHIFF, Mr. STUMP, Mr. WYNN, Mr. CALVERT,
Mr. BARTON of Texas, Mr. LEWIS of Kentucky, Mr. BAESLER, Mr.
SAXTON, Mr. WOLF, Mr. DOYLE, Mr. SPRATT, Mr. SKEEN, Mrs. CUBIN,
Mr. KNOLLENBERG, Mr. PORTER, Mr. BACHUS, Mr. HASTERT, Mr. COL-
LINS, Mr. PICKETT, Mr. DUNCAN, Mr. UPTON, Mr. WELLER, Mr.
POSHARD, Mr. CRANE, Mr. METCALF, Mr. PRYCE of Ohio, Mr. SALMON,
Mrs. EMERSON, Mr. YOUNG of Alaska, Mr. MCHALE, Mr. HORN, Mr.
KLUG, Mr. LATHAM, Mr. TALENT, Mr. FRANKS of New Jersey, Mr.
BARCIA, Mr. CHAMBLISS, Mr. BARTLETT of Maryland, Mr. MCINNIS, Mr.
OBERSTAR, Mr. TIAHRT, Mr. PACKARD, Mr. BONILLA, Mr. SKELTON,
Mr. KOLBE, Mr. MANZULLO, Mr. STEARNS, Mr. GEKAS, Mr. LIPINSKI,
Mr. COMBEST, Mr. QUINN, Mr. WALSH, Mr. SAM JOHNSON of Texas,
Mr. GILCHREST, Mr. DICKEY, Mr. STENHOLM, Mr. SESSIONS, and Mr.
HOBSON) introduced the following bill; which was referred to the Com-
mittee on the Judiciary
A BILL
To amend title 17, United States Code, with respect to
certain exemptions from copyright, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Fairness in Musical
Licensing Act of 1997’’.
SEC. 2. EXEMPTION OF CERTAIN MUSIC USES FROM COPY-
RIGHT PROTECTION.
(a) BUSINESS EXEMPTION.—Section 110(5) of title
17, United States Code, is amended to read as follows:
‘‘(5) communication by electronic device of a
transmission embodying a performance or display of
a nondramatic musical work by the reception of a
broadcast, cable, satellite, or other transmission, un-
less—
‘‘(A) an admission fee is charged specifi-
cally to see or hear the transmission at a par-
ticular time or on a particular date or dates, or
‘‘(B) the transmission is not properly li-
censed;’’.
(b) AGRICULTURAL EVENTS.—Section 110(6) of title
17, United States Code, is amended to read as follows:
‘‘(6) performance of a nondramatic musical
work by a governmental body or a nonprofit agricul-
tural or horticultural organization, in the course of
an agricultural or horticultural fair, convention,
meeting, event, or exhibition conducted by such body
or organization; the exception provided by this para-
graph shall extend to any liability for copyright in-
fringement that would otherwise be imposed on such
body or organization, including under the doctrines
of vicarious liability, contributory infringement, or
related infringement, for a performance by a conces-
sionaire, business establishment, or other person at
such fair, convention, meeting, event, or exhibition,
but shall not excuse any such person from liability
for the performance;’’.
(c) EXEMPTION RELATING TO PROMOTION.—Section
110(7) of title 17, United States Code, is amended—
(1) by striking ‘‘a vending’’ and inserting ‘‘an’’;
(2) by striking ‘‘sole’’;
(3) by inserting ‘‘or of the audio, video, or other
devices 
utilized 
in 
the 
performance,’’ 
after
‘‘phonorecords of the work,’’; and
(4) by striking ‘‘and is within the immediate
area where the sale is occurring’’.
(d) PERFORMANCES AT CHILDREN’S CAMPS.—Sec-
tion 110 of title 17, United States Code, is amended—
(1) by striking the periods at the end of para-
graphs (8) and (9) and inserting semicolons;
(2) in paragraph (10) by striking the period at
the end and inserting ‘‘; and’’; and
(3) by adding at the end thereof the following:
‘‘(11) performance of a nondramatic musical
work at an organized children’s camp, if children in
attendance sing all or a portion of the work, children
in attendance engage in games or dance to the ac-
companiment of all or a portion of the work, or the
performance is of an instructional nature.’’.
SEC. 3. BINDING ARBITRATION OF RATE DISPUTES INVOLV-
ING PERFORMING RIGHTS SOCIETIES.
(a) IN GENERAL.—Section 504 of title 17, United
States Code, is amended by adding at the end the follow-
ing new subsection:
‘‘(d) PERFORMING RIGHTS SOCIETIES; BINDING AR-
BITRATION.—
‘‘(1) ARBITRATION
OF
DISPUTES
PRIOR
TO
COURT ACTION.—
‘‘(A) ARBITRATION.—(i) If a general music
user and a performing rights society are unable
to agree on the appropriate fee to be paid for
the user’s past or future performance of musi-
cal works in the repertoire of the performing
rights society, the general music user shall, in
lieu of any other dispute-resolution mechanism
established by any judgment or decree govern-
ing the operation of the performing rights soci-
ety, be entitled to binding arbitration of such
disagreement pursuant to the rules of the
American Arbitration Association. The music
user may initiate such arbitration.
‘‘(ii) The arbitrator in such binding arbi-
tration shall determine a fair and reasonable fee
for the general music user’s past and future
performance of musical works in such society’s
repertoire and shall determine whether the
user’s past performances of such musical works,
if any, infringed the copyrights of works in the
society’s repertoire. If the arbitrator determines
that the general music user’s past performances
of such musical works infringed the copyrights
of works in the society’s repertoire, the arbitra-
tor shall impose a penalty for such infringe-
ment. Such penalty shall not exceed the arbitra-
tor’s determination of the fair and reasonable
license fee for the performances at issue.
‘‘(B) DEFINITIONS.—(i) For purposes of
this paragraph, a ‘general music user’ is any
person who performs musical works publicly but
is not engaged in the transmission of musical
works to the general public or to subscribers
through broadcast, cable, satellite, or other
transmission.
‘‘(ii) For purposes of this paragraph,
transmissions within a single commercial estab-
lishment or within establishments under com-
mon ownership or control are not transmissions
to the general public.
‘‘(iii) For purposes of clause (ii), an ‘estab-
lishment’ is a retail business, restaurant, bar,
inn, tavern, or any other place of business in
which the public may assemble.
‘‘(C) ENFORCEMENT
OF
ARBITRATOR’S
DETERMINATIONS.—An arbitrator’s determina-
tion under this paragraph is binding on the
parties and may be enforced pursuant to sec-
tions 9 through 13 of title 9.
‘‘(2) COURT-ANNEXED
ARBITRATION.—In any
civil action for infringement of the right granted in
section 106(4) involving a musical work that is in
the repertoire of a performing rights society, if the
defendant admits the prior public performance of
not less than 3 years nor more than 5 years after
the date of the arbitrator’s determination.’’.
(b) ACTIONS THAT SHALL BE REFERRED TO ARBI-
TRATION.—Section 652 of title 28, United States Code,
is amended by adding at the end the following:
‘‘(e) ACTIONS THAT SHALL BE REFERRED TO ARBI-
TRATION.—In any civil action for infringement of the
right granted in section 106(4) of title 17 involving a mu-
sical work that is in the repertoire of a performing rights
society, if the defendant admits the public performance of
any musical work in the repertoire of the performing
rights society but contests the amount of the license fee
demanded for such performance by the society, the district
court shall, if requested by the defendant, refer the dispute
to arbitration, which shall be conducted in accordance with
section 504(d)(2) of title 17. Each district court shall es-
tablish procedures by local rule authorizing the use of ar-
bitration under this subsection. The definitions set forth
in title 17 apply to the terms used in this subsection.’’.
SEC. 4. RADIO PER PROGRAMMING PERIOD LICENSE.
Section 504 of title 17, United States Code, as
amended by section 3 of this Act, is further amended by
adding at the end thereof the following new subsection:
‘‘(e) RADIO
PER
PROGRAMMING
PERIOD
LI-
CENSES.—
‘‘(1) IN GENERAL.—Each performing rights so-
ciety shall offer, to any radio broadcaster that so re-
quests, a per programming period license to perform
nondramatic musical works in the repertoire of the
performing rights society. Such license shall be of-
fered on reasonable terms and conditions that pro-
vide an economically and administratively viable al-
ternative to the society’s blanket license for all such
broadcasters.
‘‘(2) PRICE OF PER PROGRAMMING PERIOD LI-
CENSES.—(A) The total price of a per programming
period license described in paragraph (1)—
‘‘(i) shall include separate components for
incidental and feature performances, with the
incidental performance component to be inde-
pendent of the quantity of such performances
by the broadcaster and not to exceed the rel-
ative value that the performing rights society
assigns to such performances in its distribution
of royalties; and
‘‘(ii) shall not exceed the fee that would be
payable by the broadcaster under the lowest
price blanket license offered to radio broad-
casters, and shall vary between the incidental
performance component, for a broadcaster that
makes only incidental performances of music in
the society’s repertoire, and such blanket license
fee, in direct proportion to the percentage of
the broadcaster’s revenue attributable to pro-
gramming periods containing feature perform-
ances of musical works in the society’s rep-
ertoire compared to the industry average per-
centage of revenue attributable to programming
periods containing feature performances of such
musical works.
‘‘(B) Nondramatic musical works that have
been licensed directly or at the source, or whose per-
formance constitutes fair use or is otherwise exempt
from liability under this title, shall not be considered
in calculating any per programming period license
fee under this subsection.
‘‘(3) IMPLEMENTATION.—Any radio broad-
caster entitled to a per programming period license
under this subsection may bring an action to require
compliance with this subsection in an appropriate
United States district court, including any district
court established by court order or statute as a
court that resolves disputes, with respect to license
rates, that may arise between performing rights soci-
eties and persons who perform musical works in the
society’s repertoire.
‘‘(4) DEFINITIONS.—As used in this sub-
section—
‘‘(A) the term ‘blanket license’ means a li-
cense provided by a performing rights society
that authorizes the unlimited performance of
musical works in the society’s repertoire, for a
fee that does not vary with the quantity or type
of performances of musical works in the soci-
ety’s repertoire;
‘‘(B) the term ‘incidental’ refers to com-
mercial jingles not exceeding 60 seconds in du-
ration, bridges, themes or signatures, arrange-
ments of works in the public domain, and back-
ground music, including music used in conjunc-
tion with sporting events; and
‘‘(C) the term ‘programming period’ means
any 15-minute period of radio broadcasting
commencing on the hour, or at 15, 30, or 45
minutes past the hour.’’.
SEC. 5. ACCESS TO REPERTOIRE AND LICENSING INFORMA-
TION.
Section 504 of title 17, United States Code, as
amended by sections 3 and 4 of this Act, is further amend-
ed by adding at the end the following:
‘‘(f) ACCESS TO MUSICAL REPERTOIRE.—
‘‘(1) ONLINE COMPUTER ACCESS.—Each per-
forming rights society shall make available, free of
charge, to all interested persons, online computer ac-
cess to copyright and licensing information for each
work in its repertoire. Such access shall, for each
such musical work, identify the work by title of the
work, the name of the author and the copyright
owner, and the names of any artists known to have
performed the work. Such online computer access
shall permit the efficient review of multiple musical
works consistent with reasonably available tech-
nology.
‘‘(2) DIRECTORY OF TITLES.—Each performing
rights society shall make available at cost, not less
frequently than semiannually, a printed directory of
each title in its repertoire, as of the date which is
not more than 30 days before the date on which the
directory is published, containing the information set
forth in paragraph (1).
‘‘(3) DOCUMENTATION
OF
RIGHT
TO
LI-
CENSE.—A performing rights society shall, upon the
request of any person who performs or may perform
musical works in the society’s repertoire, provide to
that person copies of the documentation establishing
the society’s right to license the public performance
of such musical works.
‘‘(4) RESTRICTIONS
ON
INFRINGEMENT
AC-
TIONS.—
‘‘(A) RESTRICTIONS.—A performing rights
society may not institute or be a party to, or
pay the costs of another party in, any action al-
leging the infringement of the copyright in, or
charge a fee under any per programming period
license for, any work in that society’s repertoire
that is not identified and documented as re-
quired by paragraphs (1), (2), and (3).
‘‘(B) 
EXCEPTION.—Subparagraph 
(A)
shall not apply on the basis of a failure to com-
ply with paragraph (2) with respect to a musi-
cal work first entering the society’s repertoire
within the 6-month period beginning 30 days
before the date on which the society’s last direc-
tory was published under paragraph (2), if the
society establishes that such musical work was
included in the online database required by
paragraph (1) not less than 10 days before the
performance giving rise to the alleged infringe-
ment or charge.
‘‘(g) ACCESS TO LICENSING INFORMATION.—
‘‘(1) TERMS OF LICENSES.—Each performing
rights society shall provide, within 5 business days
after it receives a written request from a licensee of
any musical work in the society’s repertoire, or from
any person that is negotiating to become such a
licensee—
‘‘(A) the schedule of the society’s license
rates and terms of the license fees to be paid
under the license agreement, including any slid-
ing scale or schedule for any increase or de-
crease in rates for the duration of the license
agreement;
‘‘(B) the formulas by which the rates are
derived; and
‘‘(C) license terms under agreements exe-
cuted by the performing rights society and li-
censees described in subparagraph (A).
‘‘(2) COPIES
OF
LICENSES.—Any performing
rights society that receives a written request from an
entity that has been requested to enter into a license
agreement with the performing rights society on be-
half of persons who perform or may perform musical
works within that society’s repertoire, shall provide
to that entity, within 5 business days after receiving
that request, a schedule of fees for such perform-
ances by similar persons.’’.
SEC. 6. ANNUAL REPORTS.
Not later than March 1 of each year, the Attorney
General of the United States shall submit a written report
to the Congress on the activities of the Department of
Justice during the preceding calendar year relating to the
continuing supervision and enforcement by the Depart-
ment of the consent decree of the American Society of
Composers, Authors, and Publishers of March 14, 1950,
and the consent decree of Broadcast Music, Inc. of Decem-
ber 29, 1966. Such report shall include a description of
all issues raised or complaints filed with the Department
of Justice relating to the operations of those performing
rights societies, and a summary of the Department’s ac-
tions or investigations undertaken by the Department in
response to such issues and complaints.
SEC. 7. VICARIOUS LIABILITY PROHIBITED.
A landlord, an organizer or sponsor of a convention,
exposition, or meeting, a facility owner, or any other per-
son making space available to another party by contract,
shall not be liable under any theory of vicarious or con-
tributory infringement with respect to an infringing public
performance of a copyrighted work by a tenant, lessee,
subtenant, sublessee, licensee, exhibitor, or other user of
such space on the ground that—
(1) a contract for such space provides the land-
lord, organizer or sponsor, facility owner, or other
person a right or ability to control such space and
compensation for the use of such space; or
(2) the landlord, organizer or sponsor, facility
owner, or other person has or had at the time of the
infringing performance actual control over some as-
pects of the use of such space,
if the contract for the use of such space prohibits infring-
ing public performances and the landlord, organizer or
sponsor, facility owner, or other person does not exercise
control over the selection of works performed.
SEC. 8. CONFORMING AMENDMENTS.
Section 101 of title 17, United States Code, is
amended by inserting after the undesignated paragraph
relating to the definition of ‘‘perform’’ the following:
‘‘A ‘performing rights society’ is an association,
corporation, or other entity that licenses the public
performance of nondramatic musical works on behalf
of copyright owners of such works, such as the
American Society of Composers, Authors, and Pub-
lishers, Broadcast Music, Inc., and SESAC, Inc. The
‘repertoire’ of a performing rights society consists of
those works for which the society provides licenses
on behalf of the owners of copyright in the works.’’.
SEC. 9. CONSTRUCTION OF ACT.
Except as provided in section 504(d)(1) of title 17,
United States Code, as added by section 3(a) of this Act,
nothing in this Act shall be construed to relieve any per-
forming rights society (as defined in section 101 of title
17, United States Code) of any obligation under any con-
sent decree, State statute, or other court order governing
its operation, as such decree or order is in effect on the
date of the enactment of this Act, as it may be amended
after such date, or as it may be issued or agreed to after
such date.
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