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DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS ACT OF 1995
[[Page 109 STAT. 336]]
Public Law 104-39
104th Congress
An Act
To amend title 17, United States Code, to provide an exclusive right to
perform sound recordings publicly by means of digital transmissions, and
for other purposes. <<NOTE: Nov. 1, 1995 - [S. 227]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Digital
Performance Right in Sound Recordings Act of
1995. Copyrights. Communications.>>
SECTION 1. SHORT TITLE. <<NOTE: 17 USC 101 note.>>
This Act may be cited as the ``Digital Performance Right in Sound
Recordings Act of 1995''.
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
copyrighted work publicly by means of a digital audio
transmission.''.
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
audiovisual 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
performance 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
retransmission of a radio station's broadcast
transmission--
[[Page 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 broadcast 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
retransmitted on a nonsubscription basis
by a terrestrial broadcast station,
terrestrial translator, or terrestrial
repeater licensed by the Federal
Communications Commission; and
``(II) in the case of a subscription
retransmission of a nonsubscription
broadcast retransmission 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 retransmitter to deliver separate
and discrete signals; 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 station 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
following 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
establishment, confined to its premises or the
immediately surrounding vicinity;
``(iii) a retransmission by any retransmitter,
including a multichannel video programming
distributor as
[[Page 109 STAT. 338]]
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 retransmission 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
complement. 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
licensing, 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
recording performance complement;
``(C) the transmitting entity does not cause to be
published 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
automatically and intentionally cause any device
receiving the transmission 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 services.--
``(A) No interactive service shall be granted an
exclusive license under section 106(6) for the
performance of a sound recording publicly by means of
digital audio transmission for a period in excess of 12
months, except that with respect to an exclusive license
granted to an interactive 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.
[[Page 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 recording.
``(C) Notwithstanding the grant of an exclusive or
nonexclusive license of the right of public performance
under section 106(6), an interactive service may not
publicly perform 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 such license to publicly
perform the copyrighted musical work may be granted
either by a performing rights society representing the
copyright 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 copyright owner, such as the
American Society of Composers, 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--
[[Page 109 STAT. 340]]
``(i) the exclusive right to publicly perform
a musical work, including by means of a digital
audio transmission, 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 construed 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 remedies 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
negotiate 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.
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