§ 114. — Scope of exclusive rights in sound recordings.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC114]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 114. Scope of exclusive rights in sound recordings
(a) The exclusive rights of the owner of copyright in a sound
recording are limited to the rights specified by clauses (1), (2), (3)
and (6) of section 106, and do not include any right of performance
under section 106(4).
(b) The exclusive right of the owner of copyright in a sound
recording under clause (1) of section 106 is limited to the right to
duplicate the sound recording in the form of phonorecords or copies that
directly or indirectly recapture the actual sounds fixed in the
recording. The exclusive right of the owner of copyright in a sound
recording under clause (2) of section 106 is limited to the right to
prepare a derivative work in which the actual sounds fixed in the sound
recording are rearranged, remixed, or otherwise altered in sequence or
quality. The exclusive rights of the owner of copyright in a sound
recording under clauses (1) and (2) of section 106 do not extend to the
making or duplication of another sound recording that consists entirely
of an independent fixation of other sounds, even though such sounds
imitate or simulate those in the copyrighted sound recording. The
exclusive rights of the owner of copyright in a sound recording under
clauses (1), (2), and (3) of section 106 do not apply to sound
recordings included in educational television and radio programs (as
defined in section 397 of title 47) distributed or transmitted by or
through public broadcasting entities (as defined by section 118(g)):
Provided, That copies or phonorecords of said programs are not
commercially distributed by or through public broadcasting entities to
the general public.
(c) This section does not limit or impair the exclusive right to
perform publicly, by means of a phonorecord, any of the works specified
by section 106(4).
(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) 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--
(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 defined in
section 602(12) \1\ 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
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(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) Statutory licensing of certain transmissions.--The
performance of a sound recording publicly by means of a subscription
digital audio transmission not exempt under paragraph (1), an
eligible nonsubscription transmission, or a transmission not exempt
under paragraph (1) that is made by a preexisting satellite digital
audio radio service shall be subject to statutory licensing, in
accordance with subsection (f) if--
(A)(i) the transmission is not part of an interactive
service;
(ii) except in the case of a 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
(iii) except as provided in section 1002(e), the
transmission of the sound recording is accompanied, if
technically feasible, 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;
(B) in the case of a subscription transmission not exempt
under paragraph (1) that is made by a preexisting subscription
service in the same transmission medium used by such service on
July 31, 1998, or in the case of a transmission not exempt under
paragraph (1) that is made by a preexisting satellite digital
audio radio service--
(i) the transmission does not exceed the sound recording
performance complement; and
(ii) 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; and
(C) in the case of an eligible nonsubscription transmission
or a subscription transmission not exempt under paragraph (1)
that is made by a new subscription service or by a preexisting
subscription service other than in the same transmission medium
used by such service on July 31, 1998--
(i) the transmission does not exceed the sound recording
performance complement, except that this requirement shall
not apply in the case of a retransmission of a broadcast
transmission if the retransmission is made by a transmitting
entity that does not have the right or ability to control
the programming of the broadcast station making the
broadcast transmission, unless--
(I) the broadcast station makes broadcast
transmissions--
(aa) in digital format that regularly exceed the
sound recording performance complement; or
(bb) in analog format, a substantial portion of
which, on a weekly basis, exceed the sound recording
performance complement; and
(II) the sound recording copyright owner or its
representative has notified the transmitting entity in
writing that broadcast transmissions of the copyright
owner's sound recordings exceed the sound recording
performance complement as provided in this clause;
(ii) the transmitting entity does not cause to be
published, or induce or facilitate the publication, by means
of an advance program schedule or prior announcement, the
titles of the specific sound recordings to be transmitted,
the phonorecords embodying such sound recordings, or, other
than for illustrative purposes, the names of the featured
recording artists, except that this clause does not
disqualify a transmitting entity that makes a prior
announcement that a particular artist will be featured
within an unspecified future time period, and in the case of
a retransmission of a broadcast transmission by a
transmitting entity that does not have the right or ability
to control the programming of the broadcast transmission,
the requirement of this clause shall not apply to a prior
oral announcement by the broadcast station, or to an advance
program schedule published, induced, or facilitated by the
broadcast station, if the transmitting entity does not have
actual knowledge and has not received written notice from
the copyright owner or its representative that the broadcast
station publishes or induces or facilitates the publication
of such advance program schedule, or if such advance program
schedule is a schedule of classical music programming
published by the broadcast station in the same manner as
published by that broadcast station on or before September
30, 1998;
(iii) the transmission--
(I) is not part of an archived program of less than
5 hours duration;
(II) is not part of an archived program of 5 hours
or greater in duration that is made available for a
period exceeding 2 weeks;
(III) is not part of a continuous program which is
of less than 3 hours duration; or
(IV) is not part of an identifiable program in which
performances of sound recordings are rendered in a
predetermined order, other than an archived or
continuous program, that is transmitted at--
(aa) more than 3 times in any 2-week period that
have been publicly announced in advance, in the case
of a program of less than 1 hour in duration, or
(bb) more than 4 times in any 2-week period that
have been publicly announced in advance, in the case
of a program of 1 hour or more in duration,
except that the requirement of this subclause shall not
apply in the case of a retransmission of a broadcast
transmission by a transmitting entity that does not have
the right or ability to control the programming of the
broadcast transmission, unless the transmitting entity
is given notice in writing by the copyright owner of the
sound recording that the broadcast station makes
broadcast transmissions that regularly violate such
requirement;
(iv) the transmitting entity does not knowingly perform
the sound recording, as part of a service that offers
transmissions of visual images contemporaneously with
transmissions of sound recordings, in a manner that is
likely to cause confusion, to cause mistake, or to deceive,
as to the affiliation, connection, or association of the
copyright owner or featured recording artist with the
transmitting entity or a particular product or service
advertised by the transmitting entity, or as to the origin,
sponsorship, or approval by the copyright owner or featured
recording artist of the activities of the transmitting
entity other than the performance of the sound recording
itself;
(v) the transmitting entity cooperates to prevent, to
the extent feasible without imposing substantial costs or
burdens, a transmission recipient or any other person or
entity from automatically scanning the transmitting entity's
transmissions alone or together with transmissions by other
transmitting entities in order to select a particular sound
recording to be transmitted to the transmission recipient,
except that the requirement of this clause shall not apply
to a satellite digital audio service that is in operation,
or that is licensed by the Federal Communications
Commission, on or before July 31, 1998;
(vi) the transmitting entity takes no affirmative steps
to cause or induce the making of a phonorecord by the
transmission recipient, and if the technology used by the
transmitting entity enables the transmitting entity to limit
the making by the transmission recipient of phonorecords of
the transmission directly in a digital format, the
transmitting entity sets such technology to limit such
making of phonorecords to the extent permitted by such
technology;
(vii) phonorecords of the sound recording have been
distributed to the public under the authority of the
copyright owner or the copyright owner authorizes the
transmitting entity to transmit the sound recording, and the
transmitting entity makes the transmission from a
phonorecord lawfully made under the authority of the
copyright owner, except that the requirement of this clause
shall not apply to a retransmission of a broadcast
transmission by a transmitting entity that does not have the
right or ability to control the programming of the broadcast
transmission, unless the transmitting entity is given notice
in writing by the copyright owner of the sound recording
that the broadcast station makes broadcast transmissions
that regularly violate such requirement;
(viii) the transmitting entity accommodates and does not
interfere with the transmission of technical measures that
are widely used by sound recording copyright owners to
identify or protect copyrighted works, and that are
technically feasible of being transmitted by the
transmitting entity without imposing substantial costs on
the transmitting entity or resulting in perceptible aural or
visual degradation of the digital signal, except that the
requirement of this clause shall not apply to a satellite
digital audio service that is in operation, or that is
licensed under the authority of the Federal Communications
Commission, on or before July 31, 1998, to the extent that
such service has designed, developed, or made commitments to
procure equipment or technology that is not compatible with
such technical measures before such technical measures are
widely adopted by sound recording copyright owners; and
(ix) the transmitting entity identifies in textual data
the sound recording during, but not before, the time it is
performed, including the title of the sound recording, the
title of the phonorecord embodying such sound recording, if
any, and the featured recording artist, in a manner to
permit it to be displayed to the transmission recipient by
the device or technology intended for receiving the service
provided by the transmitting entity, except that the
obligation in this clause shall not take effect until 1 year
after the date of the enactment of the Digital Millennium
Copyright Act and shall not apply in the case of a
retransmission of a broadcast transmission by a transmitting
entity that does not have the right or ability to control
the programming of the broadcast transmission, or in the
case in which devices or technology intended for receiving
the service provided by the transmitting entity that have
the capability to display such textual data are not common
in the marketplace.
(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.
(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--
(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.
(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.
(2) For licenses granted under section 106(6), other than
statutory licenses, such as for performances by interactive services
or performances that exceed the sound recording performance
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 payments: 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 Certain Nonexempt Transmissions.--
(1)(A) No later than 30 days after the enactment of the Digital
Performance Right in Sound Recordings Act of 1995, 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 subscription transmissions by preexisting subscription
services and transmissions by preexisting satellite digital audio
radio services specified by subsection (d)(2) of this section during
the period beginning on the effective date of such Act and ending on
December 31, 2001, or, if a copyright arbitration royalty panel is
convened, ending 30 days after the Librarian issues and publishes in
the Federal Register an order adopting the determination of the
copyright arbitration royalty panel or an order setting the terms
and rates (if the Librarian rejects the panel's determination). Such
terms and rates shall distinguish among the different types of
digital audio transmission services then in operation. Any copyright
owners of sound recordings, preexisting subscription services, or
preexisting satellite digital audio radio services may submit to the
Librarian of Congress licenses covering such subscription
transmissions with respect to such sound recordings. The parties to
each negotiation proceeding shall bear their own costs.
(B) In the absence of license agreements negotiated under
subparagraph (A), during the 60-day period commencing 6 months after
publication of the notice specified in subparagraph (A), 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 affected by this
paragraph. In establishing rates and terms for preexisting
subscription services and preexisting satellite digital audio radio
services, in addition to the objectives set forth in section
801(b)(1), the copyright arbitration royalty panel may consider the
rates and terms for comparable types of subscription digital audio
transmission services and comparable circumstances under voluntary
license agreements negotiated as provided in subparagraph (A).
(C)(i) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in subparagraph (A) 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, any preexisting
subscription services, or any preexisting satellite digital
audio radio services indicating that a new type of subscription
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 2001, and at 5-year
intervals thereafter.
(ii) The procedures specified in subparagraph (B) shall be
repeated, in accordance with regulations that the Librarian of
Congress shall prescribe, upon filing of a petition in accordance
with section 803(a)(1) during a 60-day period commencing--
(I) 6 months after publication of a notice of the initiation
of voluntary negotiation proceedings under subparagraph (A)
pursuant to a petition under clause (i)(I) of this subparagraph;
or
(II) on July 1, 2001, and at 5-year intervals thereafter.
(iii) The procedures specified in subparagraph (B) shall be
concluded in accordance with section 802.
(2)(A) No later than 30 days after the date of the enactment of
the Digital Millennium Copyright Act, 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
public performances of sound recordings by means of eligible
nonsubscription transmissions and transmissions by new subscription
services specified by subsection (d)(2) during the period beginning
on the date of the enactment of such Act and ending on December 31,
2000, or such other date as the parties may agree. Such rates and
terms shall distinguish among the different types of eligible
nonsubscription transmission services and new subscription services
then in operation and shall include a minimum fee for each such type
of service. Any copyright owners of sound recordings or any entities
performing sound recordings affected by this paragraph may submit to
the Librarian of Congress licenses covering such eligible
nonsubscription transmissions and new subscription services with
respect to such sound recordings. The parties to each negotiation
proceeding shall bear their own costs.
(B) In the absence of license agreements negotiated under
subparagraph (A), during the 60-day period commencing 6 months after
publication of the notice specified in subparagraph (A), 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 affected by this
paragraph during the period beginning on the date of the enactment
of the Digital Millennium Copyright Act and ending on December 31,
2000, or such other date as the parties may agree. Such rates and
terms shall distinguish among the different types of eligible
nonsubscription transmission services then in operation and shall
include a minimum fee for each such type of service, such
differences to be based on criteria including, but not limited to,
the quantity and nature of the use of sound recordings and the
degree to which use of the service may substitute for or may promote
the purchase of phonorecords by consumers. In establishing rates and
terms for transmissions by eligible nonsubscription services and new
subscription services, the copyright arbitration royalty panel shall
establish rates and terms that most clearly represent the rates and
terms that would have been negotiated in the marketplace between a
willing buyer and a willing seller. In determining such rates and
terms, the copyright arbitration royalty panel shall base its
decision on economic, competitive and programming information
presented by the parties, including--
(i) whether use of the service may substitute for or may
promote the sales of phonorecords or otherwise may interfere
with or may enhance the sound recording copyright owner's other
streams of revenue from its sound recordings; and
(ii) the relative roles of the copyright owner and the
transmitting entity in the copyrighted work and the service made
available to the public with respect to relative creative
contribution, technological contribution, capital investment,
cost, and risk.
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 under subparagraph
(A).
(C)(i) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in subparagraph (A) 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 eligible
nonsubscription service or new subscription service indicating
that a new type of eligible nonsubscription service or new
subscription 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 2-year
intervals thereafter, except to the extent that different years
for the repeating of such proceedings may be determined in
accordance with subparagraph (A).
(ii) The procedures specified in subparagraph (B) shall be
repeated, in accordance with regulations that the Librarian of
Congress shall prescribe, upon filing of a petition in accordance
with section 803(a)(1) during a 60-day period commencing--
(I) 6 months after publication of a notice of the initiation
of voluntary negotiation proceedings under subparagraph (A)
pursuant to a petition under clause (i)(I); or
(II) on July 1, 2000, and at 2-year intervals thereafter,
except to the extent that different years for the repeating of
such proceedings may be determined in accordance with
subparagraph (A).
(iii) The procedures specified in subparagraph (B) shall be
concluded in accordance with section 802.
(3) License agreements voluntarily negotiated at any time
between 1 or more copyright owners of sound recordings and 1 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 Congress.
(4)(A) The Librarian of Congress shall also establish
requirements by which copyright owners 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.
(B) Any person who wishes to perform a sound recording publicly
by means of a transmission eligible for statutory licensing under
this subsection may do so without infringing the exclusive right of
the copyright owner of the sound recording--
(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 subsection; or
(ii) if such royalty fees have not been set, by agreeing to
pay such royalty fees as shall be determined in accordance with
this subsection.
(C) 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.
(5)(A) Notwithstanding section 112(e) and the other provisions
of this subsection, the receiving agent may enter into agreements
for the reproduction and performance of sound recordings under
section 112(e) and this section by any 1 or more small commercial
webcasters or noncommercial webcasters during the period beginning
on October 28, 1998, and ending on December 31, 2004, that, once
published in the Federal Register pursuant to subparagraph (B),
shall be binding on all copyright owners of sound recordings and
other persons entitled to payment under this section, in lieu of any
determination by a copyright arbitration royalty panel or decision
by the Librarian of Congress. Any such agreement for small
commercial webcasters shall include provisions for payment of
royalties on the basis of a percentage of revenue or expenses, or
both, and include a minimum fee. Any such agreement may include
other terms and conditions, including requirements by which
copyright owners may receive notice of the use of their sound
recordings and under which records of such use shall be kept and
made available by small commercial webcasters or noncommercial
webcasters. The receiving agent shall be under no obligation to
negotiate any such agreement. The receiving agent shall have no
obligation to any copyright owner of sound recordings or any other
person entitled to payment under this section in negotiating any
such agreement, and no liability to any copyright owner of sound
recordings or any other person entitled to payment under this
section for having entered into such agreement.
(B) The Copyright Office shall cause to be published in the
Federal Register any agreement entered into pursuant to subparagraph
(A). Such publication shall include a statement containing the
substance of subparagraph (C). Such agreements shall not be included
in the Code of Federal Regulations. Thereafter, the terms of such
agreement shall be available, as an option, to any small commercial
webcaster or noncommercial webcaster meeting the eligibility
conditions of such agreement.
(C) Neither subparagraph (A) nor any provisions of any agreement
entered into pursuant to subparagraph (A), including any rate
structure, fees, terms, conditions, or notice and recordkeeping
requirements set forth therein, shall be admissible as evidence or
otherwise taken into account in any administrative, judicial, or
other government proceeding involving the setting or adjustment of
the royalties payable for the public performance or reproduction in
ephemeral phonorecords or copies of sound recordings, the
determination of terms or conditions related thereto, or the
establishment of notice or recordkeeping requirements by the
Librarian of Congress under paragraph (4) or section 112(e)(4). It
is the intent of Congress that any royalty rates, rate structure,
definitions, terms, conditions, or notice and recordkeeping
requirements, included in such agreements shall be considered as a
compromise motivated by the unique business, economic and political
circumstances of small webcasters, copyright owners, and performers
rather than as matters that would have been negotiated in the
marketplace between a willing buyer and a willing seller, or
otherwise meet the objectives set forth in section 801(b).
(D) Nothing in the Small Webcaster Settlement Act of 2002 or any
agreement entered into pursuant to subparagraph (A) shall be taken
into account by the United States Court of Appeals for the District
of Columbia Circuit in its review of the determination by the
Librarian of Congress of July 8, 2002, of rates and terms for the
digital performance of sound recordings and ephemeral recordings,
pursuant to sections 112 and 114.
(E) As used in this paragraph--
(i) the term ``noncommercial webcaster'' means a webcaster
that--
(I) is exempt from taxation under section 501 of the
Internal Revenue Code of 1986 (26 U.S.C. 501);
(II) has applied in good faith to the Internal Revenue
Service for exemption from taxation under section 501 of the
Internal Revenue Code and has a commercially reasonable
expectation that such exemption shall be granted; or
(III) is operated by a State or possession or any
governmental entity or subordinate thereof, or by the United
States or District of Columbia, for exclusively public
purposes;
(ii) the term ``receiving agent'' shall have the meaning
given that term in section 261.2 of title 37, Code of Federal
Regulations, as published in the Federal Register on July 8,
2002; and
(iii) the term ``webcaster'' means a person or entity that
has obtained a compulsory license under section 112 or 114 and
the implementing regulations therefor to make eligible
nonsubscription transmissions and ephemeral recordings.
(F) The authority to make settlements pursuant to subparagraph
(A) shall expire December 15, 2002, except with respect to
noncommercial webcasters for whom the authority shall expire May 31,
2003.
(g) Proceeds From Licensing of Transmissions.--
(1) Except in the case of a transmission licensed under a
statutory license 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 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 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) An agent designated to distribute receipts from the
licensing of transmissions in accordance with subsection (f) shall
distribute such receipts as follows:
(A) 50 percent of the receipts shall be paid to the
copyright owner of the exclusive right under section 106(6) of
this title to publicly perform a sound recording by means of a
digital audio transmission.
(B) 2\1/2\ percent of the receipts shall be deposited in an
escrow account managed by an independent administrator 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 Federation of Musicians) who have performed on
sound recordings.
(C) 2\1/2\ percent of the receipts shall be deposited in an
escrow account managed by an independent administrator jointly
appointed by copyright 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 American Federation of Television
and Radio Artists) who have performed on sound recordings.
(D) 45 percent of the receipts shall be paid, 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).
(3) A nonprofit agent designated to distribute receipts from the
licensing of transmissions in accordance with subsection (f) may
deduct from any of its receipts, prior to the distribution of such
receipts to any person or entity entitled thereto other than
copyright owners and performers who have elected to receive
royalties from another designated agent and have notified such
nonprofit agent in writing of such election, the reasonable costs of
such agent incurred after November 1, 1995, in--
(A) the administration of the collection, distribution, and
calculation of the royalties;
(B) the settlement of disputes relating to the collection
and calculation of the royalties; and
(C) the licensing and enforcement of rights with respect to
the making of ephemeral recordings and performances subject to
licensing under section 112 and this section, including those
incurred in participating in negotiations or arbitration
proceedings under section 112 and this section, except that all
costs incurred relating to the section 112 ephemeral recordings
right may only be deducted from the royalties received pursuant
to section 112.
(4) Notwithstanding paragraph (3), any designated agent
designated to distribute receipts from the licensing of
transmissions in accordance with subsection (f) may deduct from any
of its receipts, prior to the distribution of such receipts, the
reasonable costs identified in paragraph (3) of such agent incurred
after November 1, 1995, with respect to such copyright owners and
performers who have entered with such agent a contractual
relationship that specifies that such costs may be deducted from
such royalty receipts.
(h) Licensing to Affiliates.--
(1) If the copyright owner of a sound recording licenses an
affiliated entity the right to publicly perform a sound recording 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 subsection
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 performance 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 administrative, 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) An ``archived program'' is a predetermined program that is
available repeatedly on the demand of the transmission recipient and
that is performed in the same order from the beginning, except that
an archived program shall not include a recorded event or broadcast
transmission that makes no more than an incidental use of sound
recordings, as long as such recorded event or broadcast transmission
does not contain an entire sound recording or feature a particular
sound recording.
(3) A ``broadcast'' transmission is a transmission made by a
terrestrial broadcast station licensed as such by the Federal
Communications Commission.
(4) A ``continuous program'' is a predetermined program that is
continuously performed in the same order and that is accessed at a
point in the program that is beyond the control of the transmission
recipient.
(5) 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.
(6) An ``eligible nonsubscription transmission'' is a
noninteractive nonsubscription digital audio transmission not exempt
under subsection (d)(1) that is made as part of a service that
provides audio programming consisting, in whole or in part, of
performances of sound recordings, including retransmissions of
broadcast transmissions, if the primary purpose of the service is to
provide to the public such audio or other entertainment programming,
and the primary purpose of the service is not to sell, advertise, or
promote particular products or services other than sound recordings,
live concerts, or other music-related events.
(7) An ``interactive service'' is one that enables a member of
the public to receive a transmission of a program specially created
for the recipient, or on request, a transmission of a particular
sound recording, whether or not as part of a program, which is
selected 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, or in the case of a
subscription service, by all subscribers of the service, does not
make a service interactive, if the programming on each channel of
the service does not substantially consist of sound recordings that
are performed within 1 hour of the request or at a time designated
by either the transmitting entity or the individual making such
request. If an entity offers both interactive and noninteractive
services (either concurrently or at different times), the
noninteractive component shall not be treated as part of an
interactive service.
(8) A ``new subscription service'' is a service that performs
sound recordings by means of noninteractive subscription digital
audio transmissions and that is not a preexisting subscription
service or a preexisting satellite digital audio radio service.
(9) A ``nonsubscription'' transmission is any transmission that
is not a subscription transmission.
(10) A ``preexisting satellite digital audio radio service'' is
a subscription satellite digital audio radio service provided
pursuant to a satellite digital audio radio service license issued
by the Federal Communications Commission on or before July 31, 1998,
and any renewal of such license to the extent of the scope of the
original license, and may include a limited number of sample
channels representative of the subscription service that are made
available on a nonsubscription basis in order to promote the
subscription service.
(11) A ``preexisting subscription service'' is a service that
performs sound recordings by means of noninteractive audio-only
subscription digital audio transmissions, which was in existence and
was making such transmissions to the public for a fee on or before
July 31, 1998, and may include a limited number of sample channels
representative of the subscription service that are made available
on a nonsubscription basis in order to promote the subscription
service.
(12) 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
transmission 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).
(13) 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 multiple
phonorecords shall nonetheless qualify as a sound recording
performance complement if the programming of the multiple
phonorecords was not willfully intended to avoid the numerical
limitations prescribed in such clauses.
(14) 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.
(15) A ``transmission'' is either an initial transmission or a
retransmission.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2560; Pub.
L. 104-39, Sec. 3, Nov. 1, 1995, 109 Stat. 336; Pub. L. 105-80, Sec. 3,
Nov. 13, 1997, 111 Stat. 1531; Pub. L. 105-304, title IV,
Sec. 405(a)(1)-(4), Oct. 28, 1998, 112 Stat. 2890-2897; Pub. L. 107-321,
Secs. 4, 5(b), (c), Dec. 4, 2002, 116 Stat. 2781, 2784.)
Historical and Revision Notes
house report no. 94-1476
Subsection (a) of Section 114 specified that the exclusive rights of
the owner of copyright in a sound recording are limited to the rights to
reproduce the sound recording in copies or phonorecords, to prepare
derivative works based on the copyrighted sound recording, and to
distribute copies or phonorecords of the sound recording to the public.
Subsection (a) states explicitly that the owner's rights ``do not
include any right of performance under section 106(4).'' The Committee
considered at length the arguments in favor of establishing a limited
performance right, in the form of a compulsory license, for copyrighted
sound recordings, but concluded that the problem requires further study.
It therefore added a new subsection (d) to the bill requiring the
Register of Copyrights to submit to Congress, on January 3, 1978, ``a
report setting forth recommendations as to whether this section should
be amended to provide for performers and copyright owners * * * any
performance rights'' in copyrighted sound recordings. Under the new
subsection, the report ``should describe the status of such rights in
foreign countries, the views of major interested parties, and specific
legislative or other recommendations, if any.''
Subsection (b) of section 114 makes clear that statutory protection
for sound recordings extends only to the particular sounds of which the
recording consists, and would not prevent a separate recording of
another performance in which those sounds are imitated. Thus,
infringement takes place whenever all or any substantial portion of the
actual sounds that go to make up a copyrighted sound recording are
reproduced in phonorecords by repressing, transcribing, recapturing off
the air, or any other method, or by reproducing them in the soundtrack
or audio portion of a motion picture or other audiovisual work. Mere
imitation of a recorded performance would not constitute a copyright
infringement even where one performer deliberately sets out to simulate
another's performance as exactly as possible.
Under section 114, the exclusive right of owner of copyright in a
sound recording to prepare derivative works based on the copyrighted
sound recording is recognized. However, in view of the expressed
intention not to give exclusive rights against imitative or simulated
performances and recordings, the Committee adopted an amendment to make
clear the scope of rights under section 106(2) in this context. Section
114(b) provides that the ``exclusive right of the owner of copyright in
a sound recording under clause (2) of section 106 is limited to the
right to prepare a derivative work in which the actual sounds fixed in
the sound recording are rearranged, remixed, or otherwise altered in
sequence or quality.''
Another amendment deals with the use of copyrighted sound recordings
``included in educational television and radio programs * * *
distributed or transmitted by or through public broadcasting entities.''
This use of recordings is permissible without authorization from the
owner of copyright in the sound recording, as long as ``copies or
phonorecords of said programs are not commercially distributed by or
through public broadcasting entities to the general public.''
During the 1975 hearings, the Register of Copyrights expressed some
concern that an invaluable segment of this country's musical heritage--
in the form of sound recordings--had become inaccessible to
musicologists and to others for scholarly purposes. Several of the major
recording companies have responded to the Register's concern by granting
blanket licenses to the Library of Congress to permit it to make single
copy duplications of sound recordings maintained in the Library's
archives for research purposes. Moreover, steps are being taken to
determine the feasibility of additional licensing arrangements as a
means of satisfying the needs of key regional music libraries across the
country. The Register has agreed to report to Congress if further
legislative consideration should be undertaken.
Section 114(c) states explicitly that nothing in the provisions of
section 114 should be construed to ``limit or impair the exclusive right
to perform publicly, by means of a phonorecord, any of the works
specified by section 106(4).'' This principle is already implicit in the
bill, but it is restated to avoid the danger of confusion between rights
in a sound recording and rights in the musical composition or other work
embodied in the recording.
References in Text
Section 602(12) of the Communications Act of 1934, referred to in
subsec. (d)(1)(C)(iii), was subsequently amended, and section 602(12) no
longer defines ``multichannel video programming distributor''. However,
such term is defined elsewhere in that section.
The date of the enactment of the Digital Millennium Copyright Act,
referred to in subsecs. (d)(2)(C)(ix) and (f)(2)(A), (B), is the date of
enactment of Pub. L. 105-304, which was approved Oct. 28, 1998.
The date of enactment of the Digital Performance Right in Sound
Recordings Act of 1995, referred to in subsecs. (d)(4)(B)(iii), (C) and
(f)(1), is the date of enactment of Pub. L. 104-39, which was approved
Nov. 1, 1995.
The antitrust laws, referred to in subsec. (e)(1), are classified
generally to chapter 1 (Sec. 1 et seq.) of Title 15, Commerce and Trade.
For effective date of the Digital Performance Right in Sound
Recordings Act of 1995, referred to in subsec. (f)(1), see section 6 of
Pub. L. 104-39, set out as an Effective Date of 1995 Amendment note
under section 101 of this title.
The Small Webcaster Settlement Act of 2002, referred to in subsec.
(f)(5)(D), is Pub. L. 107-321, Dec. 4, 2002, 116 Stat. 2780, which
amended this section and enacted provisions set out as notes under this
section and section 101 of this title. For complete classification of
this Act to the Code, see Short Title of 2002 Amendments note set out
under section 101 of this title and Tables.
Amendments
2002--Subsec. (f)(5). Pub. L. 107-321, Sec. 4, added par. (5).
Subsec. (g)(2). Pub. L. 107-321, Sec. 5(c), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ``The copyright
owner of the exclusive right under section 106(6) of this title to
publicly perform a sound recording by means of a digital audio
transmission shall allocate to recording artists in the following manner
its receipts from the statutory licensing of transmission performances
of the sound recording in accordance with subsection (f) of this
section:
``(A) 2\1/2\ percent of the receipts shall be deposited in an
escrow account managed by an independent administrator 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
Federation of Musicians) who have performed on sound recordings.
``(B) 2\1/2\ percent of the receipts shall be deposited in an
escrow account managed by an independent administrator jointly
appointed by copyright 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 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).''
Subsec. (g)(3), (4). Pub. L. 107-321, Sec. 5(b), added pars. (3) and
(4).
1998--Subsec. (d)(1)(A). Pub. L. 105-304, Sec. 405(a)(1)(A), added
subpar. (A) and struck out former subpar. (A) which read as follows:
``(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;''.
Subsec. (d)(2). Pub. L. 105-304, Sec. 405(a)(1)(B), amended heading
and text of par. (2) generally. Prior to amendment, text read as
follows: ``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.''
Subsec. (f). Pub. L. 105-304, Sec. 405(a)(2)(A), substituted
``Certain Nonexempt'' for ``Nonexempt Subscription'' in heading.
Subsec. (f)(1)(A). Pub. L. 105-304, Sec. 405(a)(2)(B), designated
existing provisions as subpar. (A), in first sentence, substituted
``subscription transmissions by preexisting subscription services and
transmissions by preexisting satellite digital audio radio services''
for ``the activities'' and ``2001'' for ``2000'', and amended third
sentence generally. Prior to amendment, third sentence read as follows:
``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.''
Subsec. (f)(1)(B), (C). Pub. L. 105-304, Sec. 405(a)(2)(C), added
subpars. (B) and (C).
Subsec. (f)(2) to (5). Pub. L. 105-304, Sec. 405(a)(2)(C), added
pars. (2) to (4) and struck out former pars. (2) to (5), which provided:
in par. (2) that Librarian of Congress would convene a copyright
arbitration royalty panel to determine schedule of rates and terms, that
panel could consider rates and terms for comparable types of services
under voluntary license agreements, and that requirements would be
established by which copyright owners would receive notice of use of
their recordings; in par. (3) that voluntarily negotiated license
agreements would be given effect in lieu of determination by panel or
decision by Librarian; in par. (4) that publication of notice of
negotiations would be repeated no later than 30 days after petition was
filed, in the first week of January, 2000, and at 5-year intervals
thereafter, and that par. (2) procedures would be repeated upon filing
of petition during a 60-day period commencing six months after
publication of notice or on July 1, 2000 and at 5-year intervals
thereafter; and in par. (5) that performance by non-exempt subscription
transmission without infringing copyright was permissible by compliance
with notice requirements and payment of royalty fees or agreement to pay
such fees.
Subsec. (g). Pub. L. 105-304, Sec. 405(a)(3)(A), struck out
``Subscription'' before ``Transmissions'' in heading.
Subsec. (g)(1). Pub. L. 105-304, Sec. 405(a)(3)(B), substituted
``transmission licensed under a statutory license'' for ``subscription
transmission licensed'' in introductory provisions.
Subsec. (g)(1)(A), (B). Pub. L. 105-304, Sec. 405(a)(3)(C), struck
out ``subscription'' before ``transmission''.
Subsec. (g)(2). Pub. L. 105-304, Sec. 405(a)(3)(D), struck out
``subscription'' before ``transmission performances'' in introductory
provisions.
Subsec. (j)(2), (3). Pub. L. 105-304, Sec. 405(a)(4)(A), (B), added
par. (2) and redesignated former par. (2) as (3). Former par. (3)
redesignated (5).
Subsec. (j)(4). Pub. L. 105-304, Sec. 405(a)(4)(A), (C), added par.
(4) and struck out former par. (4) which read as follows: ``An
`interactive service' is one that enables a member of the public to
receive, on request, a transmission of a particular 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 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.''
Subsec. (j)(5). Pub. L. 105-304, Sec. 405(a)(4)(A), redesignated
par. (3) as (5). Former par. (5) redesignated (9).
Subsec. (j)(6) to (8). Pub. L. 105-304, Sec. 405(a)(4)(A), (D),
added pars. (6) to (8). Former pars. (6) to (8) redesignated (12) to
(14), respectively.
Subsec. (j)(9). Pub. L. 105-304, Sec. 405(a)(4)(A), redesignated
par. (5) as (9) and struck out former par. (9) which read as follows:
``A `transmission' includes both an initial transmission and a
retransmission.''
Subsec. (j)(10), (11). Pub. L. 105-304, Sec. 405(a)(4)(E), added
pars. (10) and (11).
Subsec. (j)(12) to (14). Pub. L. 105-304, Sec. 405(a)(4)(A),
redesignated pars. (6) to (8) as (12) to (14), respectively.
Subsec. (j)(15). Pub. L. 105-304, Sec. 405(a)(4)(F), added par.
(15).
1997--Subsec. (f)(1). Pub. L. 105-80, Sec. 3(1), inserted ``, or, if
a copyright arbitration royalty panel is convened, ending 30 days after
the Librarian issues and publishes in the Federal Register an order
adopting the determination of the copyright arbitration royalty panel or
an order setting the terms and rates (if the Librarian rejects the
panel's determination)'' after ``December 31, 2000''.
Subsec. (f)(2). Pub. L. 105-80, Sec. 3(2), struck out ``and publish
in the Federal Register'' before ``a schedule of rates and terms''.
1995--Subsec. (a). Pub. L. 104-39, Sec. 3(1), substituted ``(3) and
(6) of section 106'' for ``and (3) of section 106''.
Subsec. (b). Pub. L. 104-39, Sec. 3(2), substituted ``phonorecords
or copies'' for ``phonorecords, or of copies of motion pictures and
other audiovisual works,'' in first sentence.
Subsec. (d). Pub. L. 104-39, Sec. 3(3), added subsec. (d) and struck
out former subsec. (d), which read as follows: ``On January 3, 1978, the
Register of Copyrights, after consulting with representatives of owners
of copyrighted materials, representatives of the broadcasting,
recording, motion picture, entertainment industries, and arts
organizations, representatives of organized labor and performers of
copyrighted materials, shall submit to the Congress a report setting
forth recommendations as to whether this section should be amended to
provide for performers and copyright owners of copyrighted material any
performance rights in such material. The report should describe the
status of such rights in foreign countries, the views of major
interested parties, and specific legislative or other recommendations,
if any.''
Subsecs. (e) to (j). Pub. L. 104-39, Sec. 3(4), added subsecs. (e)
to (j).
Effective Date of 1998 Amendment
Amendment by section 405(a)(1), (2)(A), (B)(i)(I), (II), (ii), (3),
(4) of Pub. L. 105-304 effective Oct. 28, 1998, except as otherwise
provided, see section 407 of Pub. L. 105-304, set out as a note under
section 108 of this title.
Pub. L. 105-304, title IV, Sec. 405(a)(5), Oct. 28, 1998, 112 Stat.
2899, provided that: ``The amendment made by paragraph (2)(B)(i)(III) of
this subsection [amending this section] shall be deemed to have been
enacted as part of the Digital Performance Right in Sound Recordings Act
of 1995 [Pub. L. 104-39], and the publication of notice of proceedings
under section 114(f)(1) of title 17, United States Code, as in effect
upon the effective date of that Act [see Effective Date of 1995
Amendment note set out under section 101 of this title], for the
determination of royalty payments shall be deemed to have been made for
the period beginning on the effective date of that Act and ending on
December 1, 2001.''
Effective Date of 1995 Amendment
Amendment by Pub. L. 104-39 effective 3 months after Nov. 1, 1995,
except that provisions of subsecs. (e) and (f) of this section effective
Nov. 1, 1995, see section 6 of Pub. L. 104-39, set out as a note under
section 101 of this title.
Construction of 1998 Amendment
Pub. L. 105-304, title IV, Sec. 405(a)(6), Oct. 28, 1998, 112 Stat.
2899, provided that: ``The amendments made by this subsection [amending
this section] do not annul, limit, or otherwise impair the rights that
are preserved by section 114 of title 17, United States Code, including
the rights preserved by subsections (c), (d)(4), and (i) of such
section.''
Findings Relating to Pub. L. 107-321
Pub. L. 107-321, Sec. 2, Dec. 4, 2002, 116 Stat. 2780, provided
that: ``Congress finds the following:
``(1) Some small webcasters who did not participate in the
copyright arbitration royalty panel proceeding leading to the July
8, 2002 order of the Librarian of Congress establishing rates and
terms for certain digital performances and ephemeral reproductions
of sound recordings, as provided in part 261 of the Code of Federal
Regulations (published in the Federal Register on July 8, 2002)
(referred to in this section as `small webcasters'), have expressed
reservations about the fee structure set forth in such order, and
have expressed their desire for a fee based on a percentage of
revenue.
``(2) Congress has strongly encouraged representatives of
copyright owners of sound recordings and representatives of the
small webcasters to engage in negotiations to arrive at an agreement
that would include a fee based on a percentage of revenue.
``(3) The representatives have arrived at an agreement that they
can accept in the extraordinary and unique circumstances here
presented, specifically as to the small webcasters, their belief in
their inability to pay the fees due pursuant to the July 8 order,
and as to the copyright owners of sound recordings and performers,
the strong encouragement of Congress to reach an accommodation with
the small webcasters on an expedited basis.
``(4) The representatives have indicated that they do not
believe the agreement provides for or in any way approximates fair
or reasonable royalty rates and terms, or rates and terms that would
have been negotiated in the marketplace between a willing buyer and
a willing seller.
``(5) Congress has made no determination as to whether the
agreement provides for or in any way approximates fair or reasonable
fees and terms, or rates and terms that would have been negotiated
in the marketplace between a willing buyer and a willing seller.
``(6) Congress likewise has made no determination as to whether
the July 8 order is reasonable or arbitrary, and nothing in this Act
[amending this section and enacting provisions set out as notes
under this section and section 101 of this title] shall be taken
into account by the United States Court of Appeals for the District
of Columbia Circuit in its review of such order.
``(7) It is, nevertheless, in the public interest for the
parties to be able to enter into such an agreement without fear of
liability for deviating from the fees and terms of the July 8 order,
if it is clear that the agreement will not be admissible as evidence
or otherwise taken into account in any government proceeding
involving the setting or adjustment of the royalties payable to
copyright owners of sound recordings for the public performance or
reproduction in ephemeral phonorecords or copies of such works, the
determination of terms or conditions related thereto, or the
establishment of notice or recordkeeping requirements.''
Pub. L. 107-321, Sec. 5(a), Dec. 4, 2002, 116 Stat. 2783, provided
that: ``Congress finds that--
``(1) in the case of royalty payments from the licensing of
digital transmissions of sound recordings under subsection (f) of
section 114 of title 17, United States Code, the parties have
voluntarily negotiated arrangements under which payments shall be
made directly to featured recording artists and the administrators
of the accounts provided in subsection (g)(2) of that section;
``(2) such voluntarily negotiated payment arrangements have been
codified in regulations issued by the Librarian of Congress,
currently found in section 261.4 of title 37, Code of Federal
Regulations, as published in the Federal Register on July 8, 2002;
``(3) other regulations issued by the Librarian of Congress were
inconsistent with the voluntarily negotiated arrangements by such
parties concerning the deductibility of certain costs incurred for
licensing and arbitration, and Congress is therefore restoring those
terms as originally negotiated among the parties; and
``(4) in light of the special circumstances described in this
subsection, the uncertainty created by the regulations issued by the
Librarian of Congress, and the fact that all of the interested
parties have reached agreement, the voluntarily negotiated
arrangements agreed to among the parties are being codified.''
Suspension of Certain Payments
Pub. L. 107-321, Sec. 3, Dec. 4, 2002, 116 Stat. 2781, provided
that:
``(a) Noncommercial Webcasters.--
``(1) In general.--The payments to be made by noncommercial
webcasters for the digital performance of sound recordings under
section 114 of title 17, United States Code, and the making of
ephemeral phonorecords under section 112 of title 17, United States
Code, during the period beginning on October 28, 1998, and ending on
May 31, 2003, which have not already been paid, shall not be due
until June 20, 2003.
``(2) Definition.--In this subsection, the term `noncommercial
webcaster' has the meaning given that term in section
114(f)(5)(E)(i) of title 17, United States Code, as added by section
4 of this Act.
``(b) Small Commercial Webcasters.--
``(1) In general.--The receiving agent may, in a writing signed
by an authorized representative thereof, delay the obligation of any
1 or more small commercial webcasters to make payments pursuant to
sections 112 and 114 of title 17, United States Code, for a period
determined by such entity to allow negotiations as permitted in
section 4 of this Act [amending this section], except that any such
period shall end no later than December 15, 2002. The duration and
terms of any such delay shall be as set forth in such writing.
``(2) Definitions.--In this subsection--
``(A) the term `webcaster' has the meaning given that term
in section 114(f)(5)(E)(iii) of title 17, United States Code, as
added by section 4 of this Act; and
``(B) the term `receiving agent' shall have the meaning
given that term in section 261.2 of title 37, Code of Federal
Regulations, as published in the Federal Register on July 8,
2002.''
Report to Congress
Pub. L. 107-321, Sec. 6, Dec. 4, 2002, 116 Stat. 2785, provided
that: ``By not later than June 1, 2004, the Comptroller General of the
United States, in consultation with the Register of Copyrights, shall
conduct and submit to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the Senate a study
concerning the economic arrangements among small commercial webcasters
covered by agreements entered into pursuant to section 114(f)(5)(A) of
title 17, United States Code, as added by section 4 of this Act, and
third parties, and the effect of those arrangements on royalty fees
payable on a percentage of revenue or expense basis.''
Section Referred to in Other Sections
This section is referred to in sections 106, 111, 112, 115, 119,
501, 511, 801, 802, 803 of this title; title 18 section 2319.
