Digital Performance Right in Sound Recordings Act of 1995
PL 104-39 (S.227), enacted 11/01/1995

109 STAT. 336 
PUBLIC LAW 104-39—NOV. 1, 1995 
Public Law 104-39 
104th Congress 
An Act 
Nov. 1, 1995 
To amend title 17, United States Code, to provide an exclusive right to perform 
[S. 227] 
sound recordings publicly by means of digital transmissions, and for other purposes. 
Be it enacted by the Senate and House of Representatives of 
Digital 
the United States of America in Congress assembled, 
Performance 
Right in Sound 
SECTION 1. SHORT TITLE. 
1995. ^"^^ '^ ° 
This Act may be cited as the "Digital Performance Right in 
Copyrights. 
Sound Recordings Act of 1995". 
Communications. 
17 u s e 101 note. 
SEC. 2. EXCLUSIVE RIGHTS IN COPYRIGHTED WORKS. 
Section 106 of title 17, United States Code, is amended— 
(1) in paragraph (4) by striking "and" after the semicolon; 
(2) in paragraph (5) by striking the period and inserting 
"; and"; and 
(3) by adding at the end the following: 
"(6) in the case of sound recordings, to perform the copy-
righted work publicly by means of a digital audio trans-
mission.". 
SEC. 3. SCOPE OF EXCLUSIVE RIGHTS IN SOUND RECORDINGS. 
Section 114 of title 17, United States Code, is amended— 
(1) in subsection (a) by striking "and (3)" and inserting 
"(3) and (6)"; 
(2) in subsection (b) in the first sentence by striking 
"phonorecords, or of copies of motion pictures and other audio-
visual works," and inserting "phonorecords or copies"; 
(3) by striking subsection (d) and inserting: 
"(d) LIMITATIONS ON EXCLUSIVE RIGHT.—Notwithstanding the 
provisions of section 106(6)— 
"(1) EXEMPT TRANSMISSIONS AND RETRANSMISSIONS.—^The 
performance of a sound recording publicly by means of a digital 
audio transmission, other than as a part of an interactive 
service, is not an infringement of section 106(6) if the perform-
ance is part of— 
"(A)(i) a nonsubscription transmission other than a 
retransmission; 
"(ii) an initial nonsubscription retransmission made 
for direct reception by members of the public of a prior 
or simultaneous incidental transmission that is not made 
for direct reception by members of the public; or 
"(iii) a nonsubscription broadcast transmission; 
"(B) a retransmission of a nonsubscription broadcast 
transmission: Provided, That, in the case of a retrans-
mission of a radio station's broadcast transmission— 
PUBLIC LAW 104-39—NOV. 1, 1995 
109 STAT. 337 
"(i) the radio station's broadcast transmission is 
not willfully or repeatedly retransmitted more than 
a radius of 150 miles from the site of the radio broad-
cast transmitter, however— 
"(I) the 150 mile limitation under this clause 
shall not apply when a nonsubscription broadcast 
transmission by a radio station licensed by the 
Federal Communications Commission is retrans-
mitted on a nonsubscription basis by a terrestrial 
broadcast station, terrestrial translator, or terres-
trial repeater licensed by the Federal Communica-
tions Commission; and 
"(11) in the case of a subscription retrans-
mission of a nonsubscription broadcast retrans-
mission covered by subclause (I), the 150 mile 
radius shall be measured from the transmitter 
site of such broadcast retransmitter; 
"(ii) the retransmission is of radio station broadcast 
transmissions that are— 
"(I) obtained by the retransmitter over the 
air; 
"(II) not electronically processed by the re-
transmitter to deliver separate and discrete sig-
nals; and 
"(III) retransmitted only within the local 
communities served by the retransmitter; 
"(iii) the radio station's broadcast transmission was 
being retransmitted to cable systems (as defined in 
section 111(f)) by a satellite carrier on January 1, 
1995, and that retransmission was being retransmitted 
by cable systems as a separate and discrete signal, 
and the satellite carrier obtains the radio station's 
broadcast transmission in an analog format: Provided, 
That the broadcast transmission being retransmitted 
may embody the programming of no more than one 
radio station; or 
"(iv) the radio station's broadcast transmission is 
made by a noncommercial educational broadcast sta-
tion funded on or after January 1, 1995, under section 
396(k) of the Communications Act of 1934 (47 U.S.C. 
396(k)), consists solely of noncommercial educational 
and cultural radio programs, and the retransmission, 
whether or not simultaneous, is a nonsubscription 
terrestrial broadcast retransmission; or 
"(C) a transmission that comes within any of the follow-
ing categories— 
"(i) a prior or simultaneous transmission incidental 
to an exempt transmission, such as a feed received 
by and then retransmitted by an exempt transmitter: 
Provided, That such incidental transmissions do not 
include any subscription transmission directly for 
reception by members of the public; 
"(ii) a transmission within a business establish-
ment, confined to its premises or the immediately 
surrounding vicinity; 
"(iii) a retransmission by any retransmitter, includ-
ing a multichannel video programming distributor as 
99-194 0-95-12:QL3Partl 
109 STAT. 338 
PUBLIC LAW 104-39—NOV. 1, 1995 
defined in section 602(12) of the Communications Act 
of 1934 (47 U.S.C. 522(12)), of a transmission by a 
transmitter licensed to publicly perform the sound 
recording as a part of that transmission, if the retrans-
mission is simultaneous with the licensed transmission 
and authorized by the transmitter; or 
"(iv) a transmission to a business establishment 
for use in the ordinary course of its business: Provided, 
That the business recipient does not retransmit the 
transmission outside of its premises or the immediately 
surrounding vicinity, and that the transmission does 
not exceed the sound recording performance com-
plement. Nothing in this clause shall limit the scope 
of the exemption in clause (ii). 
"(2) 
SUBSCRIPTION TRANSMISSIONS.—In the case of a 
subscription transmission not exempt under subsection (d)(1), 
the performance of a sound recording publicly by means of 
a digital audio transmission shall be subject to statutory licens-
ing, in accordance with subsection (f) of this section, if— 
"(A) the transmission is not part of an interactive 
service; 
"(B) the transmission does not exceed the sound record-
ing performance complement; 
"(C) the transmitting entity does not cause to be pub-
lished by means of an advance program schedule or prior 
announcement the titles of the specific sound recordings 
or phonorecords embodying such sound recordings to be 
transmitted; 
"(D) except in the case of transmission to a business 
establishment, the transmitting entity does not automati-
cally and intentionally cause any device receiving the trans-
mission to switch from one program channel to another; 
and 
"(E) except as provided in section 1002(e) of this title, 
the transmission of the sound recording is accompanied 
by the information encoded in that sound recording, if 
any, by or under the authority of the copyright owner 
of that sound recording, that identifies the title of the 
sound recording, the featured recording artist who performs 
on the sound recording, and related information, including 
information concerning the underlying musical work and 
its writer. 
"(3) LICENSES FOR TRANSMISSIONS BY INTERACTIVE SERV-
ICES.— 
"(A) No interactive service shall be granted an exclu-
sive license under section 106(6) for the performance of 
a sound recording publicly by means of digital audio trans-
mission for a period in excess of 12 months, except that 
with respect to an exclusive license granted to an inter-
active service by a licensor that holds the copyright to 
1,000 or fewer sound recordings, the period of such license 
shall not exceed 24 months: Provided, however. That the 
grantee of such exclusive license shall be ineligible to 
receive another exclusive license for the performance of 
that sound recording for a period of 13 months from the 
expiration of the prior exclusive license. 
PUBLIC LAW 104-39—NOV. 1, 1995 
109 STAT. 339 
"(B) The limitation set forth in subparagraph (A) of 
this paragraph shall not apply if— 
"(i) the licensor has granted and there remain 
in effect licenses under section 106(6) for the public 
performance of sound recordings by means of digital 
audio transmission by at least 5 different interactive 
services: Provided, however, That each such license 
must be for a minimum of 10 percent of the copyrighted 
sound recordings owned by the licensor that have been 
licensed to interactive services, but in no event less 
than 50 sound recordings; or 
"(ii) the exclusive license is granted to perform 
publicly up to 45 seconds of a sound recording and 
the sole purpose of the performance is to promote 
the distribution or performance of that sound record- -
ing. 
"(C) Notwithstanding the grant of an exclusive or non-
exclusive license of the right of public performance under 
section 106(6), an interactive service may not publicly per-
form a sound recording unless a license has been granted 
for the public performance of any copyrighted musical work 
contained in the sound recording: Provided, That ^ich 
license to publicly perform the copyrighted musical work 
may be granted either by a performing rights society rep-
resenting the copjndght owner or by the copyright owner. 
"(D) The performance of a sound recording by means 
of a retransmission of a digital audio transmission is not 
an infringement of section 106(6) if— 
"(i) the retransmission is of a transmission by an 
interactive service licensed to publicly perform the 
sound recording to a particular member of the public 
as part of that transmission; and 
"(ii) the retransmission is simultaneous with the 
licensed transmission, authorized by the transmitter, 
and limited to that particular member of the public 
intended by the interactive service to be the recipient 
of the transmission. 
"(E) For the purposes of this paragraph— 
"(i) a 'licensor* shall include the licensing entity 
and any other entity under any material degree of 
common ownership, management, or control that owns 
copyrights in sound recordings; and 
"(ii) a 'performing rights society' is an association 
or corporation that licenses the public performance 
of nondramatic musical works on behalf of the copy-
right owner, such as the American Society of Compos-
ers, Authors and Publishers, Broadcast Music, Inc., 
and SESAC, Inc. 
"(4) RIGHTS NOT OTHERWISE LIMITED.— 
"(A) Except as expressly provided in this section, this 
section does not limit or impair the exclusive right to 
perform a sound recording publicly by means of a digital 
audio transmission under section 106(6). 
"(B) Nothing in this section annuls or limits in any 
way— 
109 STAT. 340 
PUBLIC LAW 104-39—NOV. 1, 1995 
"(i) the exclusive right to publicly perform a musi-
cal work, including by means of a digital audio trans-
mission, under section 106(4); 
"(ii) the exclusive rights in a sound recording or 
the musical work embodied therein under sections 
106(1), 106(2) and 106(3); or 
"(iii) any other rights under any other clause of 
section 106, or remedies available under this title, 
as such rights or remedies exist either before or after 
the date of enactment of the Digital Performance Right 
in Sound Recordings Act of 1995. 
"(C) Any limitations in this section on the exclusive 
right under section 106(6) apply only to the exclusive right 
under section 106(6) and not to any other exclusive rights 
under section 106. Nothing in this section shall be con-
strued to annul, limit, impair or otherwise affect in any 
way the ability of the owner of a copyright in a sound 
recording to exercise the rights under sections 106(1), 
106(2) and 106(3), or to obtain the remedies available under 
this title pursuant to such rights, as such rights and rem-
edies exist either before or after the date of enactment 
of the Digital Performance Right in Sound Recordings Act 
of 1995."; and 
(4) by adding after subsection (d) the following: 
"(e) AUTHORITY FOR NEGOTIATIONS.— 
"(1) Notwithstanding any provision of the antitrust laws, 
in negotiating statutory licenses in accordance with subsection 
(f), any copyright owners of sound recordings and any entities 
performing sound recordings affected by this section may nego-
tiate and agree upon the royalty rates and license terms and 
conditions for the performance of such sound recordings and 
the proportionate division of fees paid among copyright owners, 
and may designate common agents on a nonexclusive basis 
to negotiate, agree to, pay, or receive payments. 
"(2) For licenses granted under section 106(6), other than 
statutory licenses, such as for performances by interactive serv-
ices or performances that exceed the sound recording perform-
ance complement— 
"(A) copyright owners of sound recordings affected by 
this section may designate common agents to act on their 
behalf to grant licenses and receive and remit royalty pay-
ments: Provided, That each copyright owner shall establish 
the royalty rates and material license terms and conditions 
unilaterally, that is, not in agreement, combination, or 
concert with other copyright owners of sound recordings; 
and 
"(B) entities performing sound recordings affected by 
this section may designate common agents to act on their 
behalf to obtain licenses and collect and pay royalty fees: 
Provided, That each entity performing sound recordings 
shall determine the royalty rates and material license 
terms and conditions unilaterally, that is, not in agreement, 
combination, or concert with other entities performing 
sound recordings. 
"(f) LICENSES FOR NONEXEMPT SUBSCRIPTION TRANSMISSIONS.— 
Federal Register, 
"(1) No later than 30 days after the enactment of the 
publication. 
Digital Performance Right in Sound Recordings Act of 1995, 
PUBLIC LAW 104-39—NOV. 1, 1995 
109 STAT. 341 
the Librarian of Congress shall cause notice to be published 
in the Federal Register of the initiation of voluntary negotiation 
proceedings for the purpose of determining reasonable terms 
and rates of royalty payments for the activities specified by 
subsection (d)(2) of this section during the period beginning 
on the effective date of such Act and ending on December 
31, 2000. Such terms and rates shall distinguish among the 
different types of digital audio transmission services then in 
operation. Any copyright owners of sound recordings or any 
entities performing sound recordings affected by this section 
may submit to the Librarian of Congress licenses covering 
such activities with respect to such sound recordings. The par-
ties to each negotiation proceeding shall bear their own costs. 
"(2) In the absence of license agreements negotiated under 
paragraph (1), during the 60-day period commencing 6 months 
after publication of the notice specified in paragraph (1), and 
upon the filing of a petition in accordance with section 803(a)(1), 
the Librarian of Congress shall, pursuant to chapter 8, convene 
a copyright arbitration royalty panel to determine and publish 
in the Federal Register a schedule of rates and terms which, 
subject to paragraph (3), shall be binding on all copyright 
owners of sound recordings and entities performing sound 
recordings. In addition to the objectives set forth in section 
801(b)(1), in establishing such rates and terms, the copyright 
arbitration royalty panel may consider the rates and terms 
for comparable types of digital audio transmission services and 
comparable circumstances under voluntary license agreements 
negotiated as provided in paragraph (1). The Librarian of Con- Records 
gress shall also establish requirements by which cop3n'ight own-
ers may receive reasonable notice of the use of their sound 
recordings under this section, and under which records of such 
use shall be kept and made available by entities performing 
sound recordings. 
"(3) License agreements voluntarily negotiated at any time 
between one or more copyright owners of sound recordings 
and one or more entities performing sound recordings shall 
be given effect in lieu of any determination by a copyright 
arbitration royalty panel or decision by the Librarian of Con-
gress. 
"(4)(A) Publication of a notice of the initiation of voluntary 
negotiation proceedings as specified in paragraph (1) shall be 
repeated, in accordance with regulations that the Librarian 
of Congress shall prescribe— 
"(i) no later than 30 days after a petition is filed 
by any copyright owners of sound recordings or any entities 
performing sound recordings affected by this section 
indicating that a new type of digital audio transmission 
service on which sound recordings are performed is or 
is about to become operational; and 
"(ii) in the first week of January, 2000 and at 5-
year intervals thereafter. 
"(B)(i) The procedures specified in paragraph (2) shall be 
repeated, in accordance with regulations that the Librarian 
of Congress shall prescribe, upon the filing of a petition in 
accordance with section 803(a)(1) during a 60-day period 
commencing— 
Federal Register, 
publication. 
Regulations. 
109 STAT. 342 
PUBLIC LAW 104-39—NOV. 1, 1995 
"(I) six months after publication of a notice of the 
initiation of voluntary negotiation proceedings under para-
graph (1) pursuant to a petition under paragraph (4)(A)(i); 
or 
"(11) on July 1, 2000 and at 5-year intervals thereafter, 
"(ii) The procedures specified in paragraph (2) shall be 
concluded in accordance with section 802. 
"(5)(A) Any person who wishes to perform a sound recording 
publicly by means of a nonexempt subscription transmission 
under this subsection may do so without infringing the exclusive 
right of the copyright owner of the sound recording— 
Regulations. 
"(i) by complying with such notice requirements as 
the Librarian of Congress shall prescribe by regulation 
and by paying royalty fees in accordance with this sub-
section; or 
"(ii) if such royalty fees have not been set, by agreeing 
to pay such royalty fees as shall be determined in accord-
ance with this subsection. 
"(B) Any royalty payments in arrears shall be made on 
or before the twentieth day of the month next succeeding the 
month in which the royalty fees are set. 
"(g) 
PROCEEDS FROM LICENSING OF SUBSCRIPTION TRANS-
MISSIONS.— 
"(1) Except in the case of a subscription transmission 
licensed in accordance with subsection (f) of this section— 
"(A) a featured recording artist who performs on a 
sound recording that has been licensed for a subscription 
transmission shall be entitled to receive payments from 
the copyright owner of the sound recording in accordance 
with the terms of the artist's contract; and 
"(B) a nonfeatured recording artist who performs on 
a sound recording that has been licensed for a subscription 
transmission shall be entitled to receive payments from 
the copyright owner of the sound recording in accordance 
with the terms of the nonfeatured recording artist's 
applicable contract or other applicable agreement. 
"(2) The copyright owner of the exclusive right under sec-
tion 106(6) of this title to publicly perform a sound recording 
by means of a digital audio transmission shall allocate to record-
ing artists in the following manner its receipts from the statu-
tory licensing of subscription transmission performances of the 
sound recording in accordance with subsection (f) of this section: 
"(A) 2^2 percent of the receipts shall be deposited in 
an escrow account managed by an independent adminis-
trator jointly appointed by copyright owners of sound 
recordings and the American Federation of Musicians (or 
any successor entity) to be distributed to nonfeatured 
musicians (whether or not members of the American Fed-
eration of Musicians) who have performed on sound record-
ings. 
"(B) 2V2 percent of the receipts shall be deposited in 
an escrow account managed by an independent adminis-
trator jointly appointed by cop3n-ight owners of sound 
recordings and the American Federation of Television and 
Radio Artists (or any successor entity) to be distributed 
to nonfeatured vocalists (whether or not members of the 
V**-
PUBLIC LAW 104-39—NOV. 1, 1995 
109 STAT. 343 
American Federation of Television and Radio Artists) who 
have performed on sound recordings. 
"(C) 45 percent of the receipts shall be allocated, on 
a per sound recording basis, to the recording artist or 
artists featured on such sound recording (or the persons 
conveying rights in the artists' performance in the sound 
recordings). 
"(h) LICENSING TO AFFILIATES.— 
"(1) If the copyright owner of a sound recording licenses 
an affiliated entity the right to publicly perform a sound record-
ing by means of a digital audio transmission under section 
106(6), the copyright owner shall make the licensed sound 
recording available under section 106(6) on no less favorable 
terms and conditions to all bona fide entities that offer similar 
services, except that, if there are material differences in the 
scope of the requested license with respect to the type of service, 
the particular sound recordings licensed, the frequency of use, 
the number of subscribers served, or the duration, then the 
copyright owner may establish different terms and conditions 
for such other services. 
"(2) The limitation set forth in paragraph (1) of this sub-
section shall not apply in the case where the copyright owner 
of a sound recording licenses— 
"(A) an interactive service; or 
"(B) an entity to perform publicly up to 45 seconds 
of the sound recording and the sole purpose of the perform-
ance is to promote the distribution or performance of that 
sound recording. 
"(i) 
No 
EFFECT ON ROYALTIES FOR UNDERLYING WORKS.— 
License fees payable for the public performance of sound recordings 
under section 106(6) shall not be taken into account in any adminis-
trative, judicial, or other governmental proceeding to set or adjust 
the royalties payable to copyright owners of musical works for 
the public performance of their works. It is the intent of Congress 
that royalties payable to copyright owners of musical works for 
the public performance of their works shall not be diminished 
in any respect as a result of the rights granted by section 106(6). 
"(j) DEFINITIONS.—^As used in this section, the following terms 
have the following meanings: 
"(1) An 'affiliated entity is an entity engaging in digital 
audio transmissions covered by section 106(6), other than an 
interactive service, in which the licensor has any direct or 
indirect partnership or any ownership interest amounting to 
5 percent or more of the outstanding voting or non-voting 
stock. 
"(2) A 'broadcast' transmission is a transmission made by 
a terrestrial broadcast station licensed as such by the Federal 
Communications Commission. 
"(3) A 'digital audio transmission' is a digital transmission 
as defined in section 101, that embodies the transmission of 
a sound recording. This term does not include the transmission 
of any audiovisual work. 
"(4) An 'interactive service' is one that enables a member 
of the public to receive, on request, a transmission of a particu-
lar sound recording chosen by or on behalf of the recipient. 
The ability of individuals to request that particular sound 
recordings be performed for reception by the public at large 
109 STAT. 344 
PUBLIC LAW 104-39—NOV. 1, 1995 
does not make a service interactive. If an entity offers both 
interactive and non-interactive services (either concurrently or 
at different times), the non-interactive component shall not 
be treated as part of an interactive service. 
"(5) A 'nonsubscription' transmission is any transmission 
that is not a subscription transmission. 
"(6) A 'retransmission' is a further transmission of an initial 
transmission, and includes any further retransmission of the 
same transmission. Except as provided in this section, a trans-
mission qualifies as a 'retransmission' only if it is simultaneous 
with the initial transmission. Nothing in this definition shall 
be construed to exempt a transmission that fails to satisfy 
a separate element required to qualify for an exemption under 
section 114(d)(1). 
"(7) The 'sound recording performance complement' is the 
transmission during any 3-hour period, on a particular channel 
used by a transmitting entity, of no more than— 
"(A) 3 different selections of sound recordings from 
any one phonorecord lawfully 
distributed for 
public 
performance or sale in the United States, if no more than 
2 such selections are transmitted consecutively; or 
"(B) 4 different selections of sound recordings— 
"(i) by the same featured recording artist; or 
"(ii) from any set or compilation of phonorecords 
lawfully distributed together as a unit for public 
performance or sale in the United States, 
if no more than three such selections are transmitted 
consecutively: 
Provided, That the transmission of selections in excess of the 
numerical limits provided for in clauses (A) and (B) from mul-
tiple phonorecords shall nonetheless qualify as a sound record-
ing performance complement if the programming of the multiple 
phonorecords was not willfully intended to avoid the numerical 
limitations prescribed in such clauses. 
"(8) A 'subscription' transmission is a transmission that 
is controlled and limited to particular recipients, and for which 
consideration is required to be paid or otherwise given by 
or on behalf of the recipient to receive the transmission or 
a package of transmissions including the transmission. 
"(9) A 'transmission' includes both an initial transmission 
and a retransmission.". 
SEC. 4. MECHANICAL ROYALTIES IN DIGITAL PHONORECORD DELIV-
ERIES. 
Section 115 of title 17, United States Code, is amended— 
(1) in subsection (a)(1)— 
(A) in the first sentence by striking out "any other 
person" and inserting in lieu thereof "any other person, 
including those who make phonorecords or digital phono-
record deliveries,"; and 
(B) in the second sentence by inserting before the 
period ", including by means of a digital phonorecord deliv-
ery"; 
(2) in subsection (c)(2) in the second sentence by inserting 
"and other than as provided in paragraph (3)," after "For this 
purpose,"; 
PUBLIC LAW 104-39—NOV. 1, 1995 
109 STAT. 345 
(3) by redesignating paragraphs (3), (4), and (5) of sub-
section (c) as paragraphs (4), (5), and (6), respectively, and 
by inserting after paragraph (2) the following new paragraph: 
"(3)(A) A compulsory license under this section includes 
the right of the compulsory licensee to distribute or authorize 
the distribution of a phonorecord of a nondramatic musical 
work by means of a digital transmission which constitutes 
a digital phonorecord delivery, regardless of whether the digital 
transmission is also a public performance of the sound recording 
under section 106(6) of this title or of any nondramatic musical 
work embodied therein under section 106(4) of this title. For 
every digital phonorecord delivery by or under the authority 
of the compulsory licensee— 
"(i) on or before December 31, 1997, the royalty payable 
by the compulsory licensee shall be the royalty prescribed 
under paragraph (2) and chapter 8 of this title; and 
"(ii) on or after January 1, 1998, the royalty payable 
by the compulsory licensee shall be the royalty prescribed 
under subparagraphs (B) through (F) and chapter 8 of 
this title. 
"(B) Notwithstanding any provision of the antitrust laws, 
any copyright owners of nondramatic musical works and any 
persons entitled to obtain a compulsory license under subsection 
(a)(1) may negotiate and agree upon the terms and rates of 
royalty payments under this paragraph and the proportionate 
division of fees paid among copyright owners, and may des-
ignate common agents to negotiate, agree to, pay or receive 
such royalty payments. Such authority to negotiate the terms 
and rates of royalty payments includes, but is not limited 
to, the authority to negotiate the year during which the royalty 
rates prescribed under subparagraphs (B) through (F) and chap-
ter 8 of this title shall next be determined. 
"(C) During the period of June 30, 1996, through December 
31, 1996, the Librarian of Congress shall cause notice to be 
published in the Federal Register of the initiation of voluntary 
negotiation proceedings for the purpose of determining reason-
able terms and rates of royalty pajmients for the activities 
specified by subparagraph (A) during the period beginning 
January 1, 1998, and ending on the effective date of any new 
terms and rates established pursuant to subparagraph (C), 
(D) or (F), or such other date (regarding digital phonorecord 
deliveries) as the parties may agree. Such terms and rates 
shall distinguish between (i) digital phonorecord deliveries 
where the reproduction or distribution of a phonorecord is 
incidental to the transmission which constitutes the digital 
phonorecord delivery, and (ii) digital phonorecord deliveries 
in general. Any copyright owners of nondramatic musical works 
and any persons entitled to obtain a compulsory license under 
subsection (a)(1) may submit to the Librarian of Congress 
licenses covering such activities. The parties to each negotiation 
proceeding shall bear their own costs. 
"(D) In the absence of license agreements negotiated under 
subparagraphs (B) and (C), upon the filing of a petition in 
accordance with section 803(a)(1), the Librarian of Congress 
shall, pursuant to chapter 8, convene a copyright arbitration 
royalty panel to determine and publish in the Federal Register 
a schedule of rates and terms which, subject to subparagraph 
Federal Register, 
publication. 
Federal Register, 
publication. 
109 STAT. 346 
PUBLIC LAW 104-39—NOV. 1, 1995 
Records. 
(E), shall be binding on all copyright owners of nondramatic 
musical works and persons entitled to obtain a compulsory 
license under subsection (a)(1) during the period beginning 
January 1, 1998, and ending on the effective date of any new 
terms and rates established pursuant to subparagraph (C), 
(D) or (F), or such other date (regarding digital phonorecord 
deliveries) as may be determined pursuant to subparagraphs 
(B) and (C). Such terms and rates shall distinguish between 
(i) digital phonorecord deliveries where the reproduction or 
distribution of a phonorecord is incidental to the transmission 
which constitutes the digital phonorecord delivery, and (ii) digi-
tal phonorecord deliveries in general. In addition to the objec-
tives set forth in section 801(b)(1), in establishing such rates 
and terms, the copyright arbitration royalty panel may consider 
rates and terms under voluntary license agreements negotiated 
as provided in subparagraphs (B) and (C). The royalty rates 
payable for a compulsory license for a digital phonorecord deliv-
ery under this section shall be established de novo and no 
precedential effect shall be given to the amount of the royalty 
payable by a compulsory licensee for digital phonorecord deliv-
eries on or before December 31, 1997. The Librarian of Congress 
shall also establish requirements by which copyright owners 
may receive reasonable notice of the use of their works under 
this section, and under which records of such use shall be 
kept and made available by persons making digital phonorecord 
deliveries. 
"(E)(i) License agreements voluntarily negotiated at any 
time between one or more copyright owners of nondramatic 
musical works and one or more persons entitled to obtain 
a compulsory license under subsection (a)(1) shall be given 
effect in lieu of any determination by the Librarian of Congress. 
Subject to clause (ii), the royalty rates determined pursuant 
to subparagraph (C), (D) or (F) shall be given effect in lieu 
of any contrary royalty rates specified in a contract pursuant 
to which a recording artist who is the author of a nondramatic 
musical work grants a license under that person's exclusive 
rights in the musical work under sections 106 (1) and (3) 
or commits another person to grant a license in that musical 
work under sections 106 (1) and (3), to a person desiring to 
fix in a tangible medium of expression a sound recording 
embodying the musical work. 
"(ii) The second sentence of clause (i) shall not apply to— 
"(I) a contract entered into on or before June 22, 1995, 
and not modified thereafter for the purpose of reducing 
the royalty rates determined pursuant to subparagraph 
(C), (D) or (F) or of increasing the number of musical 
works within the scope of the contract covered by the 
reduced rates, except if a contract entered into on or before 
June 22, 1995, is modified thereafter for the purpose of 
increasing the number of musical works within the scope 
of the contract, any contrary royalty rates specified in 
the contract shall be given effect in lieu of royalty rates 
determined pursuant to subparagraph (C), (D) or (F) for 
the number of musical works within the scope of the con-
tract as of June 22, 1995; and 
"(II) a contract entered into after the date that the 
sound recording is fixed in a tangible medium of expression 
PUBLIC LAW 104-39—NOV. 1, 1995 
109 STAT. 347 
substantially in a form intended for commercial release, 
if at the time the contract is entered into, the recording 
artist retains the right to grant licenses as to the musical 
work under sections 106(1) and 106(3), 
"(F) The procedures specified in subparagraphs (C) and Regulations. 
(D) shall be repeated and concluded, in accordance with regula-
tions that the Librarian of Congress shall prescribe, in each 
fifth calendar year after 1997, except to the extent that different 
years for the repeating and concluding of such proceedings 
may be determined in accordance with subparagraphs (B) and 
(C). 
"(G) Except as provided in section 1002(e) of this title, 
a digital phonorecord delivery licensed under this paragraph 
shall be accompanied by the information encoded in the sound 
recording, if any, by or under the authority of the copyright 
owner of that sound recording, that identifies the title of the 
sound recording, the featured recording artist who performs 
on the sound recording, and related information, including 
information concerning the underljdng musical work and its 
Avriter. 
"(H)(i) A digital phonorecord delivery of a sound recording 
is actionable as an act of infringement under section 501, 
and is fully subject to the remedies provided by sections 502 
through 506 and section 509, unless— 
"(I) the digital phonorecord delivery has been author-
ized by the copjTight owner of the sound recording; and 
"(II) the owner of the copyright in the sound recording 
or the entity making the digital phonorecord delivery has 
obtained a compulsory license under this section or has 
otherwise been authorized by the copyright owner of the 
musical work to distribute or authorize the distribution, 
by means of a digital phonorecord delivery, of each musical 
work embodied in the sound recording. 
"(ii) Any cause of action under this subparagraph shall 
be in addition to those available to the owner of the copyright 
in the nondramatic musical work under subsection (c)(6) and 
section 106(4) and the owner of the copyright in the sound 
recording under section 106(6). 
"(I) The liability of the cop3rright owner of a sound recording 
for infringement of the copyright in a nondramatic musical 
work embodied in the sound recording shall be determined 
in accordance with applicable law, except that the owner of 
a copyright in a sound recording shall not be liable for a 
digital phonorecord delivery by a third party if the owner 
of the copyright in the sound recording does not license the 
distribution of a phonorecord of the nondramatic musical work. 
"(J) Nothing in section 1008 shall be construed to prevent 
the exercise of the rights and remedies allowed by this para-
graph, paragraph (6), and chapter 5 in the event of a digital 
phonorecord delivery, except that no action alleging infringe-
ment of copyright may be brought under this title against 
a manufacturer, importer or distributor of a digital audio 
recording device, a digital audio recording medium, an analog 
recording device, or an analog recording medium, or against 
a consumer, based on the actions described in such section. 
"(K) Nothing in this section annuls or limits (i) the exclusive 
right to publicly perform a sound recording or the musical 
109 STAT. 348 
PUBLIC LAW 104-39—NOV. 1, 1995 
work embodied therein, including by means of a digital trans-
mission, under sections 106(4) and 106(6), (ii) except for compul-
sory licensing under the conditions specified by this section, 
the exclusive rights to reproduce and distribute the sound 
recording and the musical work embodied therein under sec-
tions 106(1) and 106(3), including by means of a digital phono-
record delivery, or (iii) any other rights under any other provi-
sion of section 106, or remedies available under this title, 
as such rights or remedies exist either before or after the 
date of enactment of the Digital Performance Right in Sound 
Recordings Act of 1995. 
"(L) The provisions of this section concerning digital phono-
record deliveries shall not apply to any exempt transmissions 
or retransmissions under section 114(d)(1). The exemptions cre-
ated in section 114(d)(1) do not expand or reduce the rights 
of copyright owners under section 106 (1) through (5) with 
respect to such transmissions and retransmissions."; and 
(5) by adding after subsection (c) the following: 
"(d) DEFINITION.—^As used in this section, the following term 
has the following meaning: A 'digital phonorecord delivery* is each 
individual delivery of a phonorecord by digital transmission of a 
sound recording which results in a specifically identifiable reproduc-
tion by or for any transmission recipient of a phonorecord of that 
sound recording, regardless of whether the digital transmission 
is also a public performance of the sound recording or any nondra-
matic musical work embodied therein. A digital phonorecord deliv-
ery does not result from a real-time, non-interactive subscription 
transmission of a sound recording where no reproduction of the 
sound recording or the musical work embodied therein is made 
from the inception of the transmission through to its receipt by 
the transmission recipient in order to make the sound recording 
audible.". 
SEC. 5. CONFORMING AMENDMENTS. 
(a) DEFINITIONS.—Section 101 of title 17, United States Code, 
is amended by inserting after the definition of "device", "machine", 
or "process" the following: 
"A 'digital transmission' is a transmission in whole or in 
part in a digital or other non-analog format.". 
(b) LIMITATIONS ON EXCLUSIVE RIGHTS: SECONDARY TRANS-
MISSIONS.—Section 111(c)(1) of title 17, United States Code, is 
amended in the first sentence by inserting "and section 114(d)" 
after "of this subsection". 
(c) LIMITATIONS ON EXCLUSIVE 
RIGHTS: SECONDARY 
TRANS-
MISSIONS OF SUPERSTATIONS AND NETWORK STATIONS FOR PRIVATE 
HOME VIEWING.— 
(1) Section 119(a)(1) of title 17, United States Code, is 
amended in the first sentence by inserting "and section 114(d)" 
S
-
f
t
f
^
T
* *
*
o
r tfiis subsGction 
(2) Section 119(a)(2)(A) of title 17, United States Code, 
is amended in the first sentence by inserting "and section 
114(d)" after "of this subsection". 
(d) COPYRIGHT ARBITRATION ROYALTY PANELS.— 
(1) Section 801(b)(1) of title 17, United States Code, is 
amended in the first and second sentences by striking "115" 
each place it appears and inserting "114, 115,". 
PUBLIC LAW 104-39—NOV. 1, 1995 
109 STAT. 349 
(2) Section 802(c) of title 17, United States Code, is amend-
ed in the third sentence by striking "section 111, 116, or 119," 
and inserting "section 111, 114, 116, or 119, any person entitled 
to a compulsory license under section 114(d), any person enti-
tled to a compulsory license under section 115,". 
(3) Section 802(g) of title 17, United States Code, is amend-
ed in the third sentence by inserting "114," after "111,". 
(4) Section 802(h)(2) of title 17, United States Code, is 
amended by inserting "114," after "111,". 
(5) Section 803(a)(1) of title 17, United States Code, is 
amended in the first sentence by striking "115" and inserting 
"114, 115" and by striking "and (4)" and inserting "(4) and 
(5)". 
(6) Section 803(a)(3) of title 17, United States Code, is 
amended by inserting before the period "or as prescribed in 
section 115(c)(3)(D)". 
(7) Section 803(a) of title 17, United States Code, is amend-
ed by inserting after paragraph (4) the following new para-
graph: 
"(5) With respect to proceedings under section 801(b)(1) 
concerning the determination of reasonable terms and rates 
of royalty payments as provided in section 114, the Librarian 
of Congress shall proceed when and as provided by that sec-
tion.". 
SEC. 6. EFFECTIVE DATE. 
17 USC 101 note. 
This Act and the amendments made by this Act shall take 
effect 3 months after the date of enactment of this Act, except 
that the provisions of sections 114(e) and 114(f) of title 17, United 
States Code (as added by section 3 of this Act) shall take effect 
immediately upon the date of enactment of this Act. 
Approved November 1, 1995. 
LEGISLATIVE HISTORY—S. 227 (H.R. 1506): 
HOUSE REPORTS: No. 104-274 accompanying H.R. 1506 (Comm. on the Judici-
ary). 
SENATE REPORTS: No. 104-128 (Comm. on the Judiciary). 
CONGRESSIONAL RECORD, Vol. 141 (1995): 
Aug. 8, considered and passed Senate. 
Oct. 17, H.R. 1506 and S. 227 considered and passed House.