[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 227 Enrolled Bill (ENR)]
S.227
One Hundred Fourth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Wednesday,
the fourth day of January, one thousand nine hundred and ninety-five
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

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This Act may be cited as the ``Digital Performance Right in Sound
Recordings Act of 1995''.

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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.''.

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Section 115 of title 17, United States Code, is amended--
(1) in subsection (a)(1)--
(A) in the first sentence by striking out ``any other
person'' and inserting in lieu thereof ``any other person,
including those who make phonorecords or digital phonorecord
deliveries,''; and
(B) in the second sentence by inserting before the period
``, including by means of a digital phonorecord delivery'';
(2) in subsection (c)(2) in the second sentence by inserting
``and other than as provided in paragraph (3),'' after ``For this
purpose,'';
(3) by redesignating paragraphs (3), (4), and (5) of subsection
(c) as paragraphs (4), (5), and (6), respectively, and by inserting
after paragraph (2) the following new paragraph:
``(3)(A) A compulsory license under this section includes the
right of the compulsory licensee to distribute or authorize the
distribution of a phonorecord of a nondramatic musical work by
means of a digital transmission which constitutes a digital
phonorecord delivery, regardless of whether the digital
transmission is also a public performance of the sound recording
under section 106(6) of this title or of any nondramatic musical
work embodied therein under section 106(4) of this title. For every
digital phonorecord delivery by or under the authority of the
compulsory licensee--
``(i) on or before December 31, 1997, the royalty payable
by the compulsory licensee shall be the royalty prescribed
under paragraph (2) and chapter 8 of this title; and
``(ii) on or after January 1, 1998, the royalty payable by
the compulsory licensee shall be the royalty prescribed under
subparagraphs (B) through (F) and chapter 8 of this title.
``(B) Notwithstanding any provision of the antitrust laws, any
copyright owners of nondramatic musical works and any persons
entitled to obtain a compulsory license under subsection (a)(1) may
negotiate and agree upon the terms and rates of royalty payments
under this paragraph and the proportionate division of fees paid
among copyright owners, and may designate common agents to
negotiate, agree to, pay or receive such royalty payments. Such
authority to negotiate the terms and rates of royalty payments
includes, but is not limited to, the authority to negotiate the
year during which the royalty rates prescribed under subparagraphs
(B) through (F) and chapter 8 of this title shall next be
determined.
``(C) During the period of June 30, 1996, through December 31,
1996, the Librarian of Congress shall cause notice to be published
in the Federal Register of the initiation of voluntary negotiation
proceedings for the purpose of determining reasonable terms and
rates of royalty payments for the activities specified by
subparagraph (A) during the period beginning January 1, 1998, and
ending on the effective date of any new terms and rates established
pursuant to subparagraph (C), (D) or (F), or such other date
(regarding digital phonorecord deliveries) as the parties may
agree. Such terms and rates shall distinguish between (i) digital
phonorecord deliveries where the reproduction or distribution of a
phonorecord is incidental to the transmission which constitutes the
digital phonorecord delivery, and (ii) digital phonorecord
deliveries in general. Any copyright owners of nondramatic musical
works and any persons entitled to obtain a compulsory license under
subsection (a)(1) may submit to the Librarian of Congress licenses
covering such activities. The parties to each negotiation
proceeding shall bear their own costs.
``(D) In the absence of license agreements negotiated under
subparagraphs (B) and (C), upon the filing of a petition in
accordance with section 803(a)(1), the Librarian of Congress shall,
pursuant to chapter 8, convene a copyright arbitration royalty
panel to determine and publish in the Federal Register a schedule
of rates and terms which, subject to subparagraph (E), shall be
binding on all copyright owners of nondramatic musical works and
persons entitled to obtain a compulsory license under subsection
(a)(1) during the period beginning January 1, 1998, and ending on
the effective date of any new terms and rates established pursuant
to subparagraph (C), (D) or (F), or such other date (regarding
digital phonorecord deliveries) as may be determined pursuant to
subparagraphs (B) and (C). Such terms and rates shall distinguish
between (i) digital phonorecord deliveries where the reproduction
or distribution of a phonorecord is incidental to the transmission
which constitutes the digital phonorecord delivery, and (ii)
digital phonorecord deliveries in general. In addition to the
objectives set forth in section 801(b)(1), in establishing such
rates and terms, the copyright arbitration royalty panel may
consider rates and terms under voluntary license agreements
negotiated as provided in subparagraphs (B) and (C). The royalty
rates payable for a compulsory license for a digital phonorecord
delivery under this section shall be established de novo and no
precedential effect shall be given to the amount of the royalty
payable by a compulsory licensee for digital phonorecord deliveries
on or before December 31, 1997. The Librarian of Congress shall
also establish requirements by which copyright owners may receive
reasonable notice of the use of their works under this section, and
under which records of such use shall be kept and made available by
persons making digital phonorecord deliveries.
``(E)(i) License agreements voluntarily negotiated at any time
between one or more copyright owners of nondramatic musical works
and one or more persons entitled to obtain a compulsory license
under subsection (a)(1) shall be given effect in lieu of any
determination by the Librarian of Congress. Subject to clause (ii),
the royalty rates determined pursuant to subparagraph (C), (D) or
(F) shall be given effect in lieu of any contrary royalty rates
specified in a contract pursuant to which a recording artist who is
the author of a nondramatic musical work grants a license under
that person's exclusive rights in the musical work under sections
106 (1) and (3) or commits another person to grant a license in
that musical work under sections 106 (1) and (3), to a person
desiring to fix in a tangible medium of expression a sound
recording embodying the musical work.
``(ii) The second sentence of clause (i) shall not apply to--
``(I) a contract entered into on or before June 22, 1995,
and not modified thereafter for the purpose of reducing the
royalty rates determined pursuant to subparagraph (C), (D) or
(F) or of increasing the number of musical works within the
scope of the contract covered by the reduced rates, except if a
contract entered into on or before June 22, 1995, is modified
thereafter for the purpose of increasing the number of musical
works within the scope of the contract, any contrary royalty
rates specified in the contract shall be given effect in lieu
of royalty rates determined pursuant to subparagraph (C), (D)
or (F) for the number of musical works within the scope of the
contract as of June 22, 1995; and
``(II) a contract entered into after the date that the
sound recording is fixed in a tangible medium of expression
substantially in a form intended for commercial release, if at
the time the contract is entered into, the recording artist
retains the right to grant licenses as to the musical work
under sections 106(1) and 106(3).
``(F) The procedures specified in subparagraphs (C) and (D)
shall be repeated and concluded, in accordance with regulations
that the Librarian of Congress shall prescribe, in each fifth
calendar year after 1997, except to the extent that different years
for the repeating and concluding of such proceedings may be
determined in accordance with subparagraphs (B) and (C).
``(G) Except as provided in section 1002(e) of this title, a
digital phonorecord delivery licensed under this paragraph shall be
accompanied by the information encoded in the sound recording, if
any, by or under the authority of the copyright owner of that sound
recording, that identifies the title of the sound recording, the
featured recording artist who performs on the sound recording, and
related information, including information concerning the
underlying musical work and its writer.
``(H)(i) A digital phonorecord delivery of a sound recording is
actionable as an act of infringement under section 501, and is
fully subject to the remedies provided by sections 502 through 506
and section 509, unless--
``(I) the digital phonorecord delivery has been authorized
by the copyright owner of the sound recording; and
``(II) the owner of the copyright in the sound recording or
the entity making the digital phonorecord delivery has obtained
a compulsory license under this section or has otherwise been
authorized by the copyright owner of the musical work to
distribute or authorize the distribution, by means of a digital
phonorecord delivery, of each musical work embodied in the
sound recording.
``(ii) Any cause of action under this subparagraph shall be in
addition to those available to the owner of the copyright in the
nondramatic musical work under subsection (c)(6) and section 106(4)
and the owner of the copyright in the sound recording under section
106(6).
``(I) The liability of the copyright owner of a sound recording
for infringement of the copyright in a nondramatic musical work
embodied in the sound recording shall be determined in accordance
with applicable law, except that the owner of a copyright in a
sound recording shall not be liable for a digital phonorecord
delivery by a third party if the owner of the copyright in the
sound recording does not license the distribution of a phonorecord
of the nondramatic musical work.
``(J) Nothing in section 1008 shall be construed to prevent the
exercise of the rights and remedies allowed by this paragraph,
paragraph (6), and chapter 5 in the event of a digital phonorecord
delivery, except that no action alleging infringement of copyright
may be brought under this title against a manufacturer, importer or
distributor of a digital audio recording device, a digital audio
recording medium, an analog recording device, or an analog
recording medium, or against a consumer, based on the actions
described in such section.
``(K) Nothing in this section annuls or limits (i) the
exclusive right to publicly perform a sound recording or the
musical work embodied therein, including by means of a digital
transmission, under sections 106(4) and 106(6), (ii) except for
compulsory licensing under the conditions specified by this
section, the exclusive rights to reproduce and distribute the sound
recording and the musical work embodied therein under sections
106(1) and 106(3), including by means of a digital phonorecord
delivery, or (iii) any other rights under any other provision of
section 106, or remedies available under this title, as such rights
or remedies exist either before or after the date of enactment of
the Digital Performance Right in Sound Recordings Act of 1995.
``(L) The provisions of this section concerning digital
phonorecord deliveries shall not apply to any exempt transmissions
or retransmissions under section 114(d)(1). The exemptions created
in section 114(d)(1) do not expand or reduce the rights of
copyright owners under section 106 (1) through (5) with respect to
such transmissions and retransmissions.''; and
(5) by adding after subsection (c) the following:
``(d) Definition.--As used in this section, the following term has
the following meaning: A `digital phonorecord delivery' is each
individual delivery of a phonorecord by digital transmission of a sound
recording which results in a specifically identifiable reproduction by
or for any transmission recipient of a phonorecord of that sound
recording, regardless of whether the digital transmission is also a
public performance of the sound recording or any nondramatic musical
work embodied therein. A digital phonorecord delivery does not result
from a real-time, non-interactive subscription transmission of a sound
recording where no reproduction of the sound recording or the musical
work embodied therein is made from the inception of the transmission
through to its receipt by the transmission recipient in order to make
the sound recording audible.''.

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(a) Definitions.--Section 101 of title 17, United States Code, is
amended by inserting after the definition of ``device'', ``machine'',
or ``process'' the following:
``A `digital transmission' is a transmission in whole or in
part in a digital or other non-analog format.''.
(b) Limitations on Exclusive Rights: Secondary Transmissions.--
Section 111(c)(1) of title 17, United States Code, is amended in the
first sentence by inserting ``and section 114(d)'' after ``of this
subsection''.
(c) Limitations on Exclusive Rights: Secondary Transmissions of
Superstations and Network Stations for Private Home Viewing.--
(1) Section 119(a)(1) of title 17, United States Code, is
amended in the first sentence by inserting ``and section 114(d)''
after ``of this subsection''.
(2) Section 119(a)(2)(A) of title 17, United States Code, is
amended in the first sentence by inserting ``and section 114(d)''
after ``of this subsection''.
(d) Copyright Arbitration Royalty Panels.--
(1) Section 801(b)(1) of title 17, United States Code, is
amended in the first and second sentences by striking ``115'' each
place it appears and inserting ``114, 115,''.
(2) Section 802(c) of title 17, United States Code, is amended
in the third sentence by striking ``section 111, 116, or 119,'' and
inserting ``section 111, 114, 116, or 119, any person entitled to a
compulsory license under section 114(d), any person entitled to a
compulsory license under section 115,''.
(3) Section 802(g) of title 17, United States Code, is amended
in the third sentence by inserting ``114,'' after ``111,''.
(4) Section 802(h)(2) of title 17, United States Code, is
amended by inserting ``114,'' after ``111,''.
(5) Section 803(a)(1) of title 17, United States Code, is
amended in the first sentence by striking ``115'' and inserting
``114, 115'' and by striking ``and (4)'' and inserting ``(4) and
(5)''.
(6) Section 803(a)(3) of title 17, United States Code, is
amended by inserting before the period ``or as prescribed in
section 115(c)(3)(D)''.
(7) Section 803(a) of title 17, United States Code, is amended
by inserting after paragraph (4) the following new paragraph:
``(5) With respect to proceedings under section 801(b)(1)
concerning the determination of reasonable terms and rates of
royalty payments as provided in section 114, the Librarian of
Congress shall proceed when and as provided by that section.''.

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This Act and the amendments made by this Act shall take effect 3
months after the date of enactment of this Act, except that the
provisions of sections 114(e) and 114(f) of title 17, United States
Code (as added by section 3 of this Act) shall take effect immediately
upon the date of enactment of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

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Digital Performance Right in Sound Recordings Act of 1995

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