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‘‘(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, United States
Code.
‘‘(2) COURT-ANNEXED
ARBITRATION.—(A) In
any civil action brought against a general music
user, as defined in paragraph (1) for infringement of
the right granted in section 106(4) involving a musi-
cal work that is in the repertoire of a performing
rights society, if the general music user admits the
prior public performance of one or more works in
the repertoire of the performing rights society but
contests the rate or the amount of the license fee de-
manded by such society for such performance, the
dispute shall, if requested by the general music user,
be submitted to arbitration under section 652(e) of
title 28. In such arbitration proceeding, the arbitra-
tor shall determine the appropriate rate and amount
owed by the music user to the performing rights so-
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ciety for all past public performances of musical
works in the society’s repertoire. The amount of the
license fee shall not exceed two times the amount of
the blanket license fee that would be applied by the
society to the music user for the year or years in
which the performances occurred. In addition, the
arbitrator shall, if requested by the music user, de-
termine a fair and reasonable rate or license fee for
the music user’s future public performances of the
musical works in such society’s repertoire.
‘‘(B) As used in this paragraph, the term ‘blan-
ket license’ means a license provided by a perform-
ing rights society that authorizes the unlimited per-
formance of musical works in the society’s rep-
ertoire, for a fee that does not vary with the quan-
tity or type of performances of musical works in the
society’s repertoire.
‘‘(3) TERM
OF
LICENSE
FEE
DETERMINA-
TION.—In any arbitration proceeding initiated under
this subsection, the arbitrator’s determination of a
fair and reasonable rate or license fee for the per-
formance of the music in the repertoire of the per-
forming rights society concerned shall apply for a
period of not less than 3 years nor more than 5
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years after the date of the arbitrator’s determina-
tion.’’.
(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 against a general music
user for infringement of the right granted in section
106(4) of title 17 involving a musical work that is in the
repertoire of a performing rights society, if the general
music user admits the public performance of any musical
work in the repertoire of the performing rights society but
contests the rate or the amount of the license fee de-
manded by the society for such performance, the district
court shall, if requested by the general music user, refer
the dispute to arbitration, which shall be conducted in ac-
cordance with section 504(d)(2) of title 17. Each district
court shall establish procedures by local rule authorizing
the use of arbitration under this subsection. The defini-
tions set forth in title 17 apply to the terms used in this
subsection.’’.
SEC. 204. VICARIOUS LIABILITY PROHIBITED.
Section 501 of title 17, United States Code, is
amended by adding at the end the following:
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‘‘(f) A landlord, an organizer or sponsor of a conven-
tion, exposition, or meeting, a facility owner, or any other
person making space available to another party by con-
tract, shall not be liable under any theory of vicarious or
contributory infringement with respect to an infringing
public performance of a copyrighted work by a tenant, les-
see, subtenant, sublessee, licensee, exhibitor, or other user
of such space on the ground that—
‘‘(1) a contract for such space provides the
landlord, 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. 205. 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:
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‘‘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. 206. CONSTRUCTION OF TITLE.
Except as provided in section 504(d)(1) of title 17,
United States Code, as added by section 203(a) of this
Act, nothing in this title shall be construed to relieve any
performing 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 statute, 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 enacted, issued,
or agreed to after such date.
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SEC. 207. EFFECTIVE DATE.
This title and the amendments made by this title
shall take effect on the date of the enactment of this Act,
and shall apply to actions filed on or after such date.
Passed the House of Representatives March 25,
1998.
Attest:
ROBIN H. CARLE,
Clerk.