I
105TH CONGRESS
2D SESSION
H. R. 4712
To amend title 17, United States Code, to extend the term of copyright,
to provide for a music licensing exemption, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 7, 1998
Mr. SENSENBRENNER (for himself and Mr. MCCOLLUM) introduced the
following bill; which was referred to the Committee on the Judiciary
A BILL
To amend title 17, United States Code, to extend the term
of copyright, to provide for a music licensing exemption,
and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
TITLE I—COPYRIGHT TERM
EXTENSION
SEC. 101. SHORT TITLE.
This title may be referred to as the ‘‘Sonny Bono
Copyright Term Extension Act’’.
SEC. 102. DURATION OF COPYRIGHT PROVISIONS.
(a) PREEMPTION
WITH
RESPECT
TO
OTHER
LAWS.—Section 301(c) of title 17, United States Code,
is amended by striking ‘‘February 15, 2047’’ each place
it appears and inserting ‘‘February 15, 2067’’.
(b) DURATION OF COPYRIGHT: WORKS CREATED ON
OR AFTER JANUARY 1, 1978.—Section 302 of title 17,
United States Code, is amended—
(1) in subsection (a) by striking ‘‘fifty’’ and in-
serting ‘‘70’’;
(2) in subsection (b) by striking ‘‘fifty’’ and in-
serting ‘‘70’’;
(3) in subsection (c) in the first sentence—
(A) by striking ‘‘seventy-five’’ and insert-
ing ‘‘95’’; and
(B) by striking ‘‘one hundred’’ and insert-
ing ‘‘120’’; and
(4) in subsection (e) in the first sentence—
(A) by striking ‘‘seventy-five’’ and insert-
ing ‘‘95’’;
(B) by striking ‘‘one hundred’’ and insert-
ing ‘‘120’’; and
(C) by striking ‘‘fifty’’ each place it ap-
pears and inserting ‘‘70’’.
(c) DURATION
OF COPYRIGHT: WORKS CREATED
BUT NOT PUBLISHED OR COPYRIGHTED BEFORE JANU-
ARY 1, 1978.—Section 303 of title 17, United States
Code, is amended in the second sentence by striking ‘‘De-
cember 31, 2027’’ and inserting ‘‘December 31, 2047’’.
(d) DURATION OF COPYRIGHT: SUBSISTING COPY-
RIGHTS.—
(1) IN
GENERAL.—Section 304 of title 17,
United States Code, is amended—
(A) in subsection (a)—
(i) in paragraph (1)—
(I) in subparagraph (B) by strik-
ing ‘‘47’’ and inserting ‘‘67’’; and
(II) in subparagraph (C) by
striking ‘‘47’’ and inserting ‘‘67’’;
(ii) in paragraph (2)—
(I) in subparagraph (A) by strik-
ing ‘‘47’’ and inserting ‘‘67’’; and
(II) in subparagraph (B) by
striking ‘‘47’’ and inserting ‘‘67’’; and
(iii) in paragraph (3)—
(I) in subparagraph (A)(i) by
striking ‘‘47’’ and inserting ‘‘67’’; and
(II) in subparagraph (B) by
striking ‘‘47’’ and inserting ‘‘67’’;
(B) by amending subsection (b) to read as
follows:
‘‘(b) COPYRIGHTS IN THEIR RENEWAL TERM AT THE
TIME OF THE EFFECTIVE DATE OF THE SONNY BONO
COPYRIGHT TERM EXTENSION ACT.—Any copyright still
in its renewal term at the time that the Sonny Bono Copy-
right Term Extension Act becomes effective shall have a
copyright term of 95 years from the date copyright was
originally secured.’’;
(C) in subsection (c)(4)(A) in the first sen-
tence by inserting ‘‘or, in the case of a termi-
nation under subsection (d), within the five-year
period specified by subsection (d)(2),’’ after
‘‘specified by clause (3) of this subsection,’’;
and
(D) by adding at the end the following new
subsection:
‘‘(d) TERMINATION RIGHTS PROVIDED
IN SUB-
SECTION (c) WHICH HAVE EXPIRED ON OR BEFORE THE
EFFECTIVE DATE
OF
THE SONNY BONO COPYRIGHT
TERM EXTENSION ACT.—In the case of any copyright
other than a work made for hire, subsisting in its renewal
term on the effective date of the Sonny Bono Copyright
Term Extension Act for which the termination right pro-
vided in subsection (c) has expired by such date, where
the author or owner of the termination right has not pre-
viously exercised such termination right, the exclusive or
nonexclusive grant of a transfer or license of the renewal
copyright or any right under it, executed before January
1, 1978, by any of the persons designated in subsection
(a)(1)(C) of this section, other than by will, is subject to
termination under the following conditions:
‘‘(1) The conditions specified in subsection
(c)(1), (2), (4), (5), and (6) of this section apply to
terminations of the last 20 years of copyright term
as provided by the amendments made by the Sonny
Bono Copyright Term Extension Act.
‘‘(2) Termination of the grant may be effected
at any time during a period of 5 years beginning at
the end of 75 years from the date copyright was
originally secured.’’.
(2) COPYRIGHT AMENDMENTS ACT OF 1992.—
Section 102 of the Copyright Amendments Act of
1992 (Public Law 102–307; 106 Stat. 266; 17
U.S.C. 304 note) is amended—
(A) in subsection (c)—
(i) by striking ‘‘47’’ and inserting
‘‘67’’;
(ii) by striking ‘‘(as amended by sub-
section (a) of this section)’’; and
(iii) by striking ‘‘effective date of this
section’’ each place it appears and insert-
ing ‘‘effective date of the Sonny Bono
Copyright Term Extension Act’’; and
(B) in subsection (g)(2) in the second sen-
tence by inserting before the period the follow-
ing: ‘‘, except each reference to forty-seven
years in such provisions shall be deemed to be
67 years’’.
SEC. 103. TERMINATION OF TRANSFERS AND LICENSES
COVERING EXTENDED RENEWAL TERM.
Sections 203(a)(2) and 304(c)(2) of title 17, United
States Code, are each amended—
(1) by striking ‘‘by his widow or her widower
and his or her children or grandchildren’’; and
(2) by inserting after subparagraph (C) the fol-
lowing:
‘‘(D) In the event that the author’s widow
or widower, children, and grandchildren are not
living, the author’s executor, administrator, per-
sonal representative, or trustee shall own the
author’s entire termination interest.’’.
SEC. 104. REPRODUCTION BY LIBRARIES AND ARCHIVES.
Section 108 of title 17, United States Code, is
amended—
(1) by redesignating subsection (h) as sub-
section (i); and
(2) by inserting after subsection (g) the follow-
ing:
‘‘(h)(1) For purposes of this section, during the last
20 years of any term of copyright of a published work,
a library or archives, including a nonprofit educational in-
stitution that functions as such, may reproduce, distrib-
ute, display, or perform in facsimile or digital form a copy
or phonorecord of such work, or portions thereof, for pur-
poses of preservation, scholarship, or research, if such li-
brary or archives has first determined, on the basis of a
reasonable investigation, that none of the conditions set
forth in subparagraphs (A), (B), and (C) of paragraph
(2) apply.
‘‘(2) No reproduction, distribution, display, or per-
formance is authorized under this subsection if—
‘‘(A) the work is subject to normal commercial
exploitation;
‘‘(B) a copy or phonorecord of the work can be
obtained at a reasonable price; or
‘‘(C) the copyright owner or its agent provides
notice pursuant to regulations promulgated by the
Register of Copyrights that either of the conditions
set forth in subparagraphs (A) and (B) applies.
SEC. 202. EXEMPTIONS.
(a) EXEMPTIONS FOR CERTAIN ESTABLISHMENTS.—
Section 110 of title 17, United States Code is amended—
(1) in paragraph (5)—
(A) by striking ‘‘(5)’’ and inserting
‘‘(5)(A) except as provided in subparagraph
(B),’’; and
(B) by adding at the end the following:
‘‘(B) communication by an establishment
of a transmission or retransmission embodying
a performance or display of a nondramatic mu-
sical work intended to be received by the gen-
eral public, originated by a radio or television
broadcast station licensed as such by the Fed-
eral Communications Commission, or, if an
audiovisual transmission, by a cable system or
satellite carrier, if—
‘‘(i) in the case of an establishment
other than a food service or drinking es-
tablishment, either the establishment in
which the communication occurs has less
than 2000 gross square feet of space (ex-
cluding space used for customer parking
and for no other purpose), or the establish-
ment in which the communication occurs
has 2000 or more gross square feet of
space (excluding space used for customer
parking and for no other purpose) and—
‘‘(I) if the performance is by
audio means only, the performance is
communicated by means of a total of
not more than 6 loudspeakers, of
which not more than 4 loudspeakers
are located in any 1 room or adjoining
outdoor space; or
‘‘(II) if the performance or dis-
play is by audiovisual means, any vis-
ual portion of the performance or dis-
play is communicated by means of a
total of not more than 4 audiovisual
devices, of which not more than one
audiovisual device is located in any 1
room, and no such audiovisual device
has a diagonal screen size greater
than 55 inches, and any audio portion
of the performance or display is com-
municated by means of a total of not
more than 6 loudspeakers, of which
not more than 4 loudspeakers are lo-
cated in any 1 room or adjoining out-
door space;
‘‘(ii) in the case of a food service or
drinking establishment, either the estab-
lishment in which the communication oc-
curs has less than 3750 gross square feet
of space (excluding space used for cus-
tomer parking and for no other purpose),
or the establishment in which the commu-
nication occurs has 3750 gross square feet
of space or more (excluding space used for
customer parking and for no other pur-
pose) and—
‘‘(I) if the performance is by
audio means only, the performance is
communicated by means of a total of
not more than 6 loudspeakers, of
which not more than 4 loudspeakers
are located in any 1 room or adjoining
outdoor space; or
‘‘(II) if the performance or dis-
play is by audiovisual means, any vis-
ual portion of the performance or dis-
play is communicated by means of a
total of not more than 4 audiovisual
devices, of which not more than one
audiovisual device is located in any 1
room, and no such audiovisual device
has a diagonal screen size greater
than 55 inches, and any audio portion
of the performance or display is com-
municated by means of a total of not
more than 6 loudspeakers, of which
not more than 4 loudspeakers are lo-
cated in any 1 room or adjoining out-
door space;
‘‘(iii) no direct charge is made to see
or hear the transmission or retransmission;
‘‘(iv) the transmission or retrans-
mission is not further transmitted beyond
the establishment where it is received; and
‘‘(v) the transmission or retrans-
mission is licensed by the copyright owner
of the work so publicly performed or dis-
played;’’; and
(2) by adding after paragraph (10) the follow-
ing:
‘‘The exemptions provided under paragraph (5) shall not
be taken into account in any administrative, judicial, or
other governmental proceeding to set or adjust the royal-
ties payable to copyright owners for the public perform-
ance or display of their works. Royalties payable to copy-
right owners for any public performance or display of their
works other than such performances or displays as are ex-
empted under paragraph (5) shall not be diminished in
any respect as a result of such exemption’’.
(b) EXEMPTION RELATING TO PROMOTION.—Section
110(7) of title 17, United States Code, is amended by in-
serting ‘‘or of the audiovisual or other devices utilized in
such performance,’’ after ‘‘phonorecords of the work,’’.
SEC. 203. LICENSING BY PERFORMING RIGHTS SOCIETIES.
(a) IN GENERAL.—Chapter 5 of title 17, United
States Code, is amended by adding at the end the follow-
ing:
‘‘§ 512. Determination of reasonable license fees for
individual proprietors
‘‘In the case of any performing rights society subject
to a consent decree which provides for the determination
of reasonable license rates or fees to be charged by the
performing rights society, notwithstanding the provisions
of that consent decree, an individual proprietor who owns
or operates fewer than 7 non-publicly traded establish-
ments in which nondramatic musical works are performed
publicly and who claims that any license agreement offered
by that performing rights society is unreasonable in its
license rate or fee as to that individual proprietor, shall
be entitled to determination of a reasonable license rate
or fee as follows:
‘‘(1) The individual proprietor may commence
such proceeding for determination of a reasonable li-
cense rate or fee by filing an application in the ap-
plicable district court under paragraph (2) that a
rate disagreement exists and by serving a copy of
the application on the performing rights society.
Such proceeding shall commence in the applicable
district court within 90 days after the service of
such copy, except that such 90-day requirement shall
be subject to the administrative requirements of the
court.
‘‘(2) The proceeding under paragraph (1) shall
be held, at the individual proprietor’s election, in the
judicial district of the district court with jurisdiction
over the applicable consent decree or in that place
of holding court of a district court that is the seat
of the Federal circuit (other than the Court of Ap-
peals for the Federal Circuit) in which the propri-
etor’s establishment is located.
‘‘(3) Such proceeding shall be held before the
judge of the court with jurisdiction over the consent
decree governing the performing rights society. At
the discretion of the court, the proceeding shall be
(b) TECHNICAL AND CONFORMING AMENDMENT.—
The table of sections for chapter 5 of title 17, United
States Code, is amended by adding after the item relating
to section 511 the following:
‘‘512. Determination of reasonable license fees for individual proprietors.’’.
SEC. 204. PENALTIES.
Section 504 of title 17, United States Code, is
amended by adding at the end the following:
‘‘(d) ADDITIONAL DAMAGES IN CERTAIN CASES.—In
any case in which the court finds that a defendant propri-
etor of an establishment who claims as a defense that its
activities were exempt under section 110(5) did not have
reasonable grounds to believe that its use of a copyrighted
work was exempt under such section, the plaintiff shall
be entitled to, in addition to any award of damages under
this section, an additional award of two times the amount
of the license fee that the proprietor of the establishment
concerned should have paid the plaintiff for such use dur-
ing the preceding period of up to 3 years.’’.
SEC. 205. DEFINITIONS.
Section 101 of title 17, United States Code, is
amended—
(1) by inserting after the definition of ‘‘display’’
the following:
‘‘An ‘establishment’ is a store, shop, or any
similar place of business open to the general public
for the primary purpose of selling goods or services
in which the majority of the gross square feet of
space that is nonresidential is used for that purpose,
and in which nondramatic musical works are per-
formed publicly.
‘‘A ‘food service or drinking establishment’ is a
restaurant, inn, bar, tavern, or any other similar
place of business in which the public or patrons as-
semble for the primary purpose of being served food
or drink, in which the majority of the gross square
feet of space that is nonresidential is used for that
purpose, and in which nondramatic musical works
are performed publicly.’’;
(2) by inserting after the definition of ‘‘fixed’’
the following:
‘‘The ‘gross square feet of space’ of an estab-
lishment means the entire interior space of that es-
tablishment, and any adjoining outdoor space used
to serve patrons, whether on a seasonal basis or oth-
erwise.’’;
(3) by inserting after the definition of ‘‘per-
form’’ 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 (ASCAP), Broadcast Music, Inc. (BMI), and
SESAC, Inc.’’; and
(4) by inserting after the definition of ‘‘pic-
torial, graphic and sculptural works’’ the following:
‘‘A ‘proprietor’ is an individual, corporation,
partnership, or other entity, as the case may be, that
owns an establishment or a food service or drinking
establisment, except that no owner or operator of a
radio or television station licensed by the Federal
Communications Commission, cable system or sat-
ellite carrier, cable or satellite carrier service or pro-
grammer, provider of online services or network ac-
cess or the operator of facilities therefor, tele-
communications company, or any other such audio
or audiovisual service or programmer now known or
as may be developed in the future, commercial sub-
scription music service, or owner or operator of any
other transmission service, shall under any cir-
cumstances be deemed to be a proprietor.’’.
SEC. 206. CONSTRUCTION OF TITLE.
Except as otherwise provided in this title, nothing in
this title shall be construed to relieve any performing
rights society of any obligation under any State or local
statute, ordinance, or law, or consent decree or other court
order governing its operation, as such statute, ordinance,
law, decree, or order is in effect on the date of the enact-
ment of this Act, as it may be amended after such date,
or as it may be issued or agreed to after such date.
SEC. 207. EFFECTIVE DATE.
This title and the amendments made by this title
shall take effect 90 days after the date of the enactment
of this Act.
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