Performance Rights HR 848
Performance Rights HR 848
Performance Rights HR 848
To provide parity in radio performance rights under title 17, United States
Code, and for other purposes.
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H848.RH H848
2
DECEMBER 14, 2010
Reported with an amendment, committed to the Committee of the Whole
House on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
[For text of introduced bill, see copy of bill as introduced on February 4, 2009]
A BILL
To provide parity in radio performance rights under title
17, United States Code, and for other purposes.
8 NET SERVICES.
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
3
1 (1) in the matter preceding subparagraph (A),
2 by striking ‘‘a digital’’ and inserting ‘‘an’’; and
3 (2) by striking subparagraph (A).
4 (c) INCLUSION OF TERRESTRIAL BROADCASTS IN EX-
5 ISTING STATUTORY LICENSE SYSTEM.—Section 114(j)(6) of
6 title 17, United States Code, is amended by striking ‘‘dig-
7 ital’’.
8 (d) ENSURING PLATFORM PARITY.—Section 114(f) of
9 title 17, United States Code, is amended—
10 (1) by striking paragraph (1);
11 (2) by redesignating paragraphs (2), (3), (4),
12 and (5) as paragraphs (1), (2), (3), and (4), respec-
13 tively; and
14 (3) in paragraph (1), as redesignated—
15 (A) in subparagraph (A), by striking
16 ‘‘under chapter 8’’ and all that follows through
17 the end of the third sentence and inserting
18 ‘‘under chapter 8 shall determine reasonable
19 rates and terms of royalty payments for trans-
20 missions subject to statutory licensing under sub-
21 section (d)(2) during 5-year periods beginning
22 on January 1 of the second year following the
23 year in which the proceedings are to be com-
hsrobinson on DSK69SOYB1PROD with BILLS
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
4
1 the Copyright Royalty and Distribution Reform
2 Act of 2004, or such other period as the parties
3 may agree.’’;
4 (B) in subparagraph (B)—
5 (i) in the second sentence, by striking
6 ‘‘eligible nonsubscription transmission’’;
7 and
8 (ii) in the third sentence, by striking
9 ‘‘eligible nonsubscription services and new
10 subscription’’ and all that follows through
11 ‘‘subparagraph (A)’’ and inserting ‘‘services,
12 in addition to the objectives set forth in sub-
13 paragraphs (A), (B), and (C) of section
14 801(b)(1), the Copyright Royalty Judges
15 may consider the rates and terms for com-
16 parable types of services and comparable
17 circumstances under voluntary license
18 agreements. Notwithstanding section
19 801(b)(1), the provisions of section
20 801(b)(1)(D) shall not be taken into account
21 by the Copyright Royalty Judges in any
22 proceeding under this section’’;
23 (C) by striking subparagraph (C) and in-
hsrobinson on DSK69SOYB1PROD with BILLS
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
5
1 ‘‘(C) The procedures under subparagraphs
2 (A) and (B) shall also be initiated pursuant to
3 a petition filed by any copyright owner of sound
4 recordings or any transmitting entity indicating
5 that a new type of service on which sound re-
6 cordings are performed is or is about to become
7 operational, for the purpose of determining rea-
8 sonable terms and rates of royalty payments
9 with respect to such new type of service for the
10 period beginning with the inception of such new
11 type of service and ending on the date on which
12 the royalty rates and terms for preexisting serv-
13 ices most recently determined under subpara-
14 graph (A) or (B) and chapter 8 expire, or such
15 other period as the parties may agree.’’.
16 (e) TECHNICAL AND CONFORMING AMENDMENTS.—
17 (1) SECTION 114(F).—Section 114(f) of title 17,
18 United States Code (as amended by subsection (d)),
19 is further amended—
20 (A) in paragraph (1)(B), in the first sen-
21 tence, by striking ‘‘paragraph (3)’’ and inserting
22 ‘‘paragraph (2)’’; and
23 (B) in paragraph (4)(C), by striking
hsrobinson on DSK69SOYB1PROD with BILLS
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
6
1 (2) SECTION 114(J).—Section 114(j)(6) of title
2 17, United States Code, is amended by striking ‘‘re-
3 transmissions of broadcast transmissions’’ and insert-
4 ing ‘‘broadcast transmissions and retransmissions of
5 broadcast transmissions’’.
6 (3) SECTION 804.—Section 804(b)(3)(C) of title
7 17, United States Code, is amended—
8 (A) in clause (i), by striking ‘‘and
9 114(f)(2)(C)’’;
10 (B) in clause (iii)(II), by striking
11 ‘‘114(f)(4)(B)(ii)’’ and inserting
12 ‘‘114(f)(3)(B)(ii)’’; and
13 (C) in clause (iv), by striking ‘‘or
14 114(f)(2)(C), as the case may be’’.
15 SEC. 3. TREATMENT FOR MINORITY, FEMALE, RELIGIOUS,
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
7
1 ‘‘(D)(i) Notwithstanding the provisions of
2 subparagraphs (A) through (C), each individual
3 terrestrial broadcast station that has gross reve-
4 nues within a range specified in clause (ii) may
5 elect to pay for its over-the-air nonsubscription
6 broadcast transmissions a royalty fee as pro-
7 vided in clause (ii), in lieu of the amount such
8 station would otherwise be required to pay under
9 this paragraph. Such royalty fee shall not be
10 taken into account in determining royalty rates
11 in a proceeding under chapter 8, or in any other
12 administrative, judicial, or other Federal Gov-
13 ernment proceeding.
14 ‘‘(ii) As provided in clause (i), each indi-
15 vidual terrestrial broadcast station that has gross
16 revenues in any calendar year of—
17 ‘‘(I) less than $100,000 may elect to
18 pay for its over-the-air nonsubscription
19 broadcast transmissions a royalty fee of
20 $500 per year;
21 ‘‘(II) at least $100,000 but less than
22 $500,000 may elect to pay for its over-the-
23 air nonsubscription broadcast transmissions
hsrobinson on DSK69SOYB1PROD with BILLS
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
8
1 ‘‘(III) at least $500,000 but less than
2 $1,250,000 may elect to pay for its over-the-
3 air nonsubscription broadcast transmissions
4 a royalty fee of $5,000 per year.
5 ‘‘(E)(i) Notwithstanding the provisions of
6 subparagraphs (A) through (C), each individual
7 terrestrial broadcast station that is a public
8 broadcasting entity as defined in section 118(f)
9 and that has gross revenues within a range spec-
10 ified in clause (ii) may elect to pay for its over-
11 the-air nonsubscription broadcast transmissions
12 a royalty fee as provided in clause (ii), in lieu
13 of the amount such station would otherwise be
14 required to pay under this paragraph. Such roy-
15 alty fee shall not be taken into account in deter-
16 mining royalty rates in a proceeding under
17 chapter 8, or in any other administrative, judi-
18 cial, or other Federal Government proceeding.
19 ‘‘(ii) As provided in clause (i), each indi-
20 vidual terrestrial broadcast station that is a
21 public broadcasting entity as defined in section
22 118(f) and has gross receipts in any calendar
23 year of—
hsrobinson on DSK69SOYB1PROD with BILLS
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
9
1 broadcast transmissions a royalty fee of
2 $500 per year; and
3 ‘‘(II) $100,000 or more may elect to
4 pay for its over-the-air nonsubscription
5 broadcast transmissions a royalty fee of
6 $1,000 per year.
7 ‘‘(F) Notwithstanding the provisions of sub-
8 paragraphs (A) through (E), each individual ter-
9 restrial broadcast station that had total gross
10 revenues during the 4 full calendar quarters im-
11 mediately preceding the date of enactment of the
12 Performance Rights Act of—
13 ‘‘(i) less than $5,000,000 shall not be
14 required to pay a royalty under this para-
15 graph during the 3 years immediately fol-
16 lowing the date of enactment of the Per-
17 formance Rights Act; and
18 ‘‘(ii) $5,000,000 or more shall not be
19 required to pay a royalty under this para-
20 graph during the 1 year immediately fol-
21 lowing the date of enactment of the Per-
22 formance Rights Act.
23 The provisions of this subparagraph shall not be
hsrobinson on DSK69SOYB1PROD with BILLS
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
10
1 administrative, judicial, or other Federal Gov-
2 ernment proceeding.’’.
3 (2) PAYMENT DATE.—A payment under subpara-
4 graph (D) or (E) of section 114(f)(1) of title 17,
5 United States Code, as added by paragraph (1), shall
6 not be due until the due date of the first royalty pay-
7 ments for nonsubscription broadcast transmissions
8 that are determined, after the date of the enactment
9 of this Act, under such section 114(f)(2) by reason of
10 the amendment made by section 2(b)(2) of this Act.
11 (b) TRANSMISSION OF RELIGIOUS SERVICES; INCI-
12 DENTAL USES OF MUSIC.—Section 114(d)(1) of title 17,
13 United States Code, as amended by section 2(b), is further
14 amended by inserting the following before subparagraph
15 (B):
16 ‘‘(A) an eligible nonsubscription trans-
17 mission of—
18 ‘‘(i) services at a place of worship or
19 other religious assembly; and
20 ‘‘(ii) an incidental use of a musical
21 sound recording;’’.
22 SEC. 4. AVAILABILITY OF PER PROGRAM LICENSE.
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
11
1 rates and terms shall include a per program license option
2 for terrestrial broadcast stations that make limited feature
3 uses of sound recordings.’’
4 SEC. 5. NO HARMFUL EFFECTS ON SONGWRITERS.
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
12
1 duced or adversely affected in any respect as a result
2 of the rights granted by section 106(6).
3 ‘‘(2) NECESSITY FOR OTHER LICENSES.—Not-
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
13
1 Code, (as amended by section 2(d)) is further amended by
2 adding at the end the following new paragraph:
3 ‘‘(5) Notwithstanding any other provision of this
4 section, under no circumstances shall the rates estab-
5 lished by the Copyright Royalty Judges for the public
6 performance of sound recordings be cited, taken into
7 account, or otherwise used in any administrative, ju-
8 dicial, or other governmental forum or proceeding, or
9 otherwise, to reduce or adversely affect the license fees
10 payable to copyright owners of musical works or their
11 representatives for the public performance of their
12 works by terrestrial broadcast stations, and such li-
13 cense fees for the public performance of musical works
14 shall be independent of license fees paid for the public
15 performance of sound recordings.’’.
16 SEC. 6. PAYMENT OF CERTAIN ROYALTIES.
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
14
1 ‘‘(A) A featured recording artist who per-
2 forms on a sound recording that has been li-
3 censed for public performance by means of an
4 audio transmission shall be entitled to receive
5 payments from the copyright owner of the sound
6 recording in accordance with the terms of the
7 artist’s contract.
8 ‘‘(B)(i) In a case in which the copyright
9 owner of a sound recording has licensed the
10 sound recording for the public performance of the
11 sound recording by means of an audio trans-
12 mission, the copyright owner shall deposit 1 per-
13 cent of the receipts from the license with the
14 American Federation of Musicians and Amer-
15 ican Federation of Television and Radio Artists
16 Intellectual Property Rights Distribution Fund
17 (or any successor entity) (in this subparagraph
18 referred to as the ‘Fund’) to be distributed to
19 nonfeatured performers who have performed on
20 sound recordings. The sound recording copyright
21 owner shall make such deposits for receipts re-
22 ceived during the first half of a calendar year by
23 August 15 and for receipts received during the
hsrobinson on DSK69SOYB1PROD with BILLS
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
15
1 ‘‘(ii) A sound recording copyright owner
2 shall include with deposits under clause (i) in-
3 formation regarding the amount of such deposits
4 attributable to each licensee and, subject to ob-
5 taining consent, if necessary, from such licensee,
6 for each sound recording performed by means of
7 an audio transmission by such licensee during
8 the applicable time period, and to the extent in-
9 cluded in the accounting reports provided by the
10 licensee to the sound recording copyright
11 owner—
12 ‘‘(I) the identity of the artist;
13 ‘‘(II) the International Standard Re-
14 cording Code of the sound recording;
15 ‘‘(III) the title of the sound recording;
16 ‘‘(IV) the number of times the sound
17 recording was transmitted; and
18 ‘‘(V) the total amount of receipts col-
19 lected from that licensee.
20 ‘‘(iii) The Fund shall make the distribu-
21 tions described in clause (i) as follows: 50 per-
22 cent shall be paid to nonfeatured musicians
23 (whether or not members of the American Fed-
hsrobinson on DSK69SOYB1PROD with BILLS
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
16
1 members of the American Federation of Tele-
2 vision and Radio Artists). The Fund may, prior
3 to making such distributions, deduct the reason-
4 able costs related to making such distributions.
5 ‘‘(iv) The sound recording copyright owner
6 shall not be required to provide any additional
7 information to the Fund other than what is re-
8 quired under this subparagraph. Sound record-
9 ing copyright owners shall use reasonable good
10 faith efforts to include in all relevant licenses a
11 requirement to report the information identified
12 in subclauses (I) through (V) of clause (ii).
13 Amounts required under clause (i) that are not
14 paid by the date specified in such clause shall be
15 subject to interest at the rate of 6 percent per
16 annum for each day of nonpayment after the
17 date the payment was due.’’;
18 (2) in paragraph (2)(A), by striking ‘‘digital’’;
19 and
20 (3) by adding at the end the following new para-
21 graph:
22 ‘‘(5) Notwithstanding paragraph (1), to the ex-
23 tent that a license granted by the copyright owner of
hsrobinson on DSK69SOYB1PROD with BILLS
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
17
1 transmissions otherwise licensable under a statutory
2 license in accordance with subsection (f), the station
3 shall pay to the agent designated to distribute statu-
4 tory licensing receipts from the licensing of trans-
5 missions in accordance with subsection (f), 50 percent
6 of the total royalties that the station is required to
7 pay for such transmissions under the applicable li-
8 cense agreement. That agent shall distribute such pay-
9 ments in proportion to the distributions provided in
10 subparagraphs (B) through (D) of paragraph (2), and
11 such payments shall be the sole payments to which
12 featured and nonfeatured artists are entitled by virtue
13 of such transmissions under the direct license with
14 that station.’’.
15 SEC. 7. NO EFFECT ON LOCAL COMMUNITIES.
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
18
1 SEC. 8. PRESERVATION OF DIVERSITY.
•HR 848 RH
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
hsrobinson on DSK69SOYB1PROD with BILLS
VerDate Mar 15 2010 21:01 Dec 14, 2010 Jkt 099200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6203 E:\BILLS\H848.RH H848
Union Calendar No. 405
111TH CONGRESS
2D SESSION H. R. 848
[Report No. 111–680]
H848
A BILL
E:\BILLS\H848.RH
To provide parity in radio performance rights under
title 17, United States Code, and for other pur-
poses.
Sfmt 6651
DECEMBER 14, 2010
Reported with an amendment, committed to the Com-
mittee of the Whole House on the State of the Union,
Fmt 6651
and ordered to be printed
Frm 00020
PO 00000
Jkt 099200
21:01 Dec 14, 2010
VerDate Mar 15 2010
hsrobinson on DSK69SOYB1PROD with BILLS