[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 505 Enrolled Bill (ENR)]
S.505
One Hundred Fifth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twenty-seventh day of January, one thousand nine hundred and ninety-
eight
An Act
To amend the provisions of title 17, United States Code, with respect to
the duration of copyright, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

da3f104939dce980f979c0cbce58bc8080816f097b0c633cca9cae1e6322a789

This title may be referred to as the ``Sonny Bono Copyright Term
Extension Act''.

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TITLE I

-COPYRIGHT TERM EXTENSION

(a) Preemption With Respect to Other Laws.--Section 301(c) of title
17, United States Code, is amended by striking ``February 15, 2047''
each place it appears and inserting ``February 15, 2067''.
(b) Duration of Copyright: Works Created on or After January 1,
1978.--Section 302 of title 17, United States Code, is amended--
(1) in subsection (a) by striking ``fifty'' and inserting
``70'';
(2) in subsection (b) by striking ``fifty'' and inserting
``70'';
(3) in subsection (c) in the first sentence--
(A) by striking ``seventy-five'' and inserting ``95''; and
(B) by striking ``one hundred'' and inserting ``120''; and
(4) in subsection (e) in the first sentence--
(A) by striking ``seventy-five'' and inserting ``95'';
(B) by striking ``one hundred'' and inserting ``120''; and
(C) by striking ``fifty'' each place it appears and
inserting ``70''.
(c) Duration of Copyright: Works Created but Not Published or
Copyrighted Before January 1, 1978.--Section 303 of title 17, United
States Code, is amended in the second sentence by striking ``December
31, 2027'' and inserting ``December 31, 2047''.
(d) Duration of Copyright: Subsisting Copyrights.--
(1) In general.--Section 304 of title 17, United States Code,
is amended--
(A) in subsection (a)--
(i) in paragraph (1)--
(I) in subparagraph (B) by striking ``47'' and
inserting ``67''; and
(II) in subparagraph (C) by striking ``47'' and
inserting ``67'';
(ii) in paragraph (2)--
(I) in subparagraph (A) by striking ``47'' and
inserting ``67''; and
(II) in subparagraph (B) by striking ``47'' and
inserting ``67''; and
(iii) in paragraph (3)--
(I) in subparagraph (A)(i) by striking ``47'' and
inserting ``67''; and
(II) in subparagraph (B) by striking ``47'' and
inserting ``67'';
(B) by amending subsection (b) to read as follows:
``(b) Copyrights in Their Renewal Term at the Time of the Effective
Date of the Sonny Bono Copyright Term Extension Act.--Any copyright
still in its renewal term at the time that the Sonny Bono Copyright
Term Extension Act becomes effective shall have a copyright term of 95
years from the date copyright was originally secured.'';
(C) in subsection (c)(4)(A) in the first sentence by
inserting ``or, in the case of a termination under subsection
(d), within the five-year period specified by subsection
(d)(2),'' after ``specified by clause (3) of this
subsection,''; and
(D) by adding at the end the following new subsection:
``(d) Termination Rights Provided in Subsection (c) Which Have
Expired on or Before the Effective Date of the Sonny Bono Copyright
Term Extension Act.--In the case of any copyright other than a work
made for hire, subsisting in its renewal term on the effective date of
the Sonny Bono Copyright Term Extension Act for which the termination
right provided in subsection (c) has expired by such date, where the
author or owner of the termination right has not previously exercised
such termination right, the exclusive or nonexclusive grant of a
transfer or license of the renewal copyright or any right under it,
executed before January 1, 1978, by any of the persons designated in
subsection (a)(1)(C) of this section, other than by will, is subject to
termination under the following conditions:
``(1) The conditions specified in subsections (c) (1), (2),
(4), (5), and (6) of this section apply to terminations of the last
20 years of copyright term as provided by the amendments made by
the Sonny Bono Copyright Term Extension Act.
``(2) Termination of the grant may be effected at any time
during a period of 5 years beginning at the end of 75 years from
the date copyright was originally secured.''.
(2) Copyright amendments act of 1992.--Section 102 of the
Copyright Amendments Act of 1992 (Public Law 102-307; 106 Stat.
266; 17 U.S.C. 304 note) is amended--
(A) in subsection (c)--
(i) by striking ``47'' and inserting ``67'';
(ii) by striking ``(as amended by subsection (a) of
this section)''; and
(iii) by striking ``effective date of this section''
each place it appears and inserting ``effective date of the
Sonny Bono Copyright Term Extension Act''; and
(B) in subsection (g)(2) in the second sentence by
inserting before the period the following: ``, except each
reference to forty-seven years in such provisions shall be
deemed to be 67 years''.

506e2d0b6462468d23c88ef9a9422466f138f91fcdbadbea9278b9d4467ce45f

RENEWAL TERM.
Sections 203(a)(2) and 304(c)(2) of title 17, United States Code,
are each amended--
(1) by striking ``by his widow or her widower and his or her
children or grandchildren''; and
(2) by inserting after subparagraph (C) the following:
``(D) In the event that the author's widow or widower,
children, and grandchildren are not living, the author's
executor, administrator, personal representative, or trustee
shall own the author's entire termination interest.''.

b6472add5e1b29659657a0a240ff35da73398ec268a0919e40da6296b75ee1a9

Section 108 of title 17, United States Code, is amended--
(1) by redesignating subsection (h) as subsection (i); and
(2) by inserting after subsection (g) the following:
``(h)(1) For purposes of this section, during the last 20 years of
any term of copyright of a published work, a library or archives,
including a nonprofit educational institution that functions as such,
may reproduce, distribute, display, or perform in facsimile or digital
form a copy or phonorecord of such work, or portions thereof, for
purposes of preservation, scholarship, or research, if such library or
archives has first determined, on the basis of a reasonable
investigation, that none of the conditions set forth in subparagraphs
(A), (B), and (C) of paragraph (2) apply.
``(2) No reproduction, distribution, display, or performance is
authorized under this subsection if--
``(A) the work is subject to normal commercial exploitation;
``(B) a copy or phonorecord of the work can be obtained at a
reasonable price; or
``(C) the copyright owner or its agent provides notice pursuant
to regulations promulgated by the Register of Copyrights that
either of the conditions set forth in subparagraphs (A) and (B)
applies.
``(3) The exemption provided in this subsection does not apply to
any subsequent uses by users other than such library or archives.''.

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It is the sense of the Congress that copyright owners of
audiovisual works for which the term of copyright protection is
extended by the amendments made by this title, and the screenwriters,
directors, and performers of those audiovisual works, should negotiate
in good faith in an effort to reach a voluntary agreement or voluntary
agreements with respect to the establishment of a fund or other
mechanism for the amount of remuneration to be divided among the
parties for the exploitation of those audiovisual works.

b3bf0c65dd89c2bd01ce4502f98d174b99ef8768b603e63d225f1718e9b32dd4

This title and the amendments made by this title shall take effect
on the date of the enactment of this Act.
ESTABLISHMENTS

2e363f62a3246225ccc47935441ae00e4c50d0983f54998d60d8c06f4e09cf63

This title may be cited as the ``Fairness In Music Licensing Act of
1998''.

3e282cab27913a162dbc0adb21b8c9ea624c84c6573a4d007a5d8a602ba0acfa

TITLE II

-MUSIC LICENSING EXEMPTION FOR FOOD SERVICE OR DRINKING

(a) Exemptions for Certain Establishments.--Section 110 of title
17, United States Code, is amended--
(1) in paragraph (5)--
(A) by striking ``(5)'' and inserting ``(5)(A) except as
provided in subparagraph (B),''; and
(B) by adding at the end the following:
``(B) communication by an establishment of a transmission
or retransmission embodying a performance or display of a
nondramatic musical work intended to be received by the general
public, originated by a radio or television broadcast station
licensed as such by the Federal Communications Commission, or,
if an audiovisual transmission, by a cable system or satellite
carrier, if--
``(i) in the case of an establishment other than a food
service or drinking establishment, either the establishment
in which the communication occurs has less than 2,000 gross
square feet of space (excluding space used for customer
parking and for no other purpose), or the establishment in
which the communication occurs has 2,000 or more gross
square feet of space (excluding space used for customer
parking and for no other purpose) and--
``(I) if the performance is by audio means only,
the performance is communicated by means of a total of
not more than 6 loudspeakers, of which not more than 4
loudspeakers are located in any 1 room or adjoining
outdoor space; or
``(II) if the performance or display is by
audiovisual means, any visual portion of the
performance or display is communicated by means of a
total of not more than 4 audiovisual devices, of which
not more than 1 audiovisual device is located in any 1
room, and no such audiovisual device has a diagonal
screen size greater than 55 inches, and any audio
portion of the performance or display is communicated
by means of a total of not more than 6 loudspeakers, of
which not more than 4 loudspeakers are located in any 1
room or adjoining outdoor space;
``(ii) in the case of a food service or drinking
establishment, either the establishment in which the
communication occurs has less than 3,750 gross square feet
of space (excluding space used for customer parking and for
no other purpose), or the establishment in which the
communication occurs has 3,750 gross square feet of space
or more (excluding space used for customer parking and for
no other purpose) and--
``(I) if the performance is by audio means only,
the performance is communicated by means of a total of
not more than 6 loudspeakers, of which not more than 4
loudspeakers are located in any 1 room or adjoining
outdoor space; or
``(II) if the performance or display is by
audiovisual means, any visual portion of the
performance or display is communicated by means of a
total of not more than 4 audiovisual devices, of which
not more than one audiovisual device is located in any
1 room, and no such audiovisual device has a diagonal
screen size greater than 55 inches, and any audio
portion of the performance or display is communicated
by means of a total of not more than 6 loudspeakers, of
which not more than 4 loudspeakers are located in any 1
room or adjoining outdoor space;
``(iii) no direct charge is made to see or hear the
transmission or retransmission;
``(iv) the transmission or retransmission is not
further transmitted beyond the establishment where it is
received; and
``(v) the transmission or retransmission is licensed by
the copyright owner of the work so publicly performed or
displayed;''; and
(2) by adding after paragraph (10) the following:
``The exemptions provided under paragraph (5) shall not be taken into
account in any administrative, judicial, or other governmental
proceeding to set or adjust the royalties payable to copyright owners
for the public performance or display of their works. Royalties payable
to copyright owners for any public performance or display of their
works other than such performances or displays as are exempted under
paragraph (5) shall not be diminished in any respect as a result of
such exemption.''.
(b) Exemption Relating to Promotion.--Section 110(7) of title 17,
United States Code, is amended by inserting ``or of the audiovisual or
other devices utilized in such performance,'' after ``phonorecords of
the work,''.

b307e29ea260ce617007738d5deb94beca618079b9e7dc8676c228fc41fec3b2

(a) In General.--Chapter 5 of title 17, United States Code, is
amended by adding at the end the following:
``Sec. 512. Determination of reasonable license fees for individual
proprietors
``In the case of any performing rights society subject to a consent
decree which provides for the determination of reasonable license rates
or fees to be charged by the performing rights society, notwithstanding
the provisions of that consent decree, an individual proprietor who
owns or operates fewer than 7 non-publicly traded establishments in
which nondramatic musical works are performed publicly and who claims
that any license agreement offered by that performing rights society is
unreasonable in its license rate or fee as to that individual
proprietor, shall be entitled to determination of a reasonable license
rate or fee as follows:
``(1) The individual proprietor may commence such proceeding
for determination of a reasonable license rate or fee by filing an
application in the applicable district court under paragraph (2)
that a rate disagreement exists and by serving a copy of the
application on the performing rights society. Such proceeding shall
commence in the applicable district court within 90 days after the
service of such copy, except that such 90-day requirement shall be
subject to the administrative requirements of the court.
``(2) The proceeding under paragraph (1) shall be held, at the
individual proprietor's election, in the judicial district of the
district court with jurisdiction over the applicable consent decree
or in that place of holding court of a district court that is the
seat of the Federal circuit (other than the Court of Appeals for
the Federal Circuit) in which the proprietor's establishment is
located.
``(3) Such proceeding shall be held before the judge of the
court with jurisdiction over the consent decree governing the
performing rights society. At the discretion of the court, the
proceeding shall be held before a special master or magistrate
judge appointed by such judge. Should that consent decree provide
for the appointment of an advisor or advisors to the court for any
purpose, any such advisor shall be the special master so named by
the court.
``(4) In any such proceeding, the industry rate shall be
presumed to have been reasonable at the time it was agreed to or
determined by the court. Such presumption shall in no way affect a
determination of whether the rate is being correctly applied to the
individual proprietor.
``(5) Pending the completion of such proceeding, the individual
proprietor shall have the right to perform publicly the copyrighted
musical compositions in the repertoire of the performing rights
society by paying an interim license rate or fee into an interest
bearing escrow account with the clerk of the court, subject to
retroactive adjustment when a final rate or fee has been
determined, in an amount equal to the industry rate, or, in the
absence of an industry rate, the amount of the most recent license
rate or fee agreed to by the parties.
``(6) Any decision rendered in such proceeding by a special
master or magistrate judge named under paragraph (3) shall be
reviewed by the judge of the court with jurisdiction over the
consent decree governing the performing rights society. Such
proceeding, including such review, shall be concluded within 6
months after its commencement.
``(7) Any such final determination shall be binding only as to
the individual proprietor commencing the proceeding, and shall not
be applicable to any other proprietor or any other performing
rights society, and the performing rights society shall be relieved
of any obligation of nondiscrimination among similarly situated
music users that may be imposed by the consent decree governing its
operations.
``(8) An individual proprietor may not bring more than one
proceeding provided for in this section for the determination of a
reasonable license rate or fee under any license agreement with
respect to any one performing rights society.
``(9) For purposes of this section, the term `industry rate'
means the license fee a performing rights society has agreed to
with, or which has been determined by the court for, a significant
segment of the music user industry to which the individual
proprietor belongs.''.
(b) Technical and Conforming Amendment.--The table of sections for
chapter 5 of title 17, United States Code, is amended by adding after
the item relating to section 511 the following:
``512. Determination of reasonable license fees for individual
proprietors.''.

88abfa8847a0667c01ac927c5384ee15d91458982f8e2dc8719ec8ab8c199c53

Section 504 of title 17, United States Code, is amended by adding
at the end the following:
``(d) Additional Damages in Certain Cases.--In any case in which
the court finds that a defendant proprietor of an establishment who
claims as a defense that its activities were exempt under section
110(5) did not have reasonable grounds to believe that its use of a
copyrighted work was exempt under such section, the plaintiff shall be
entitled to, in addition to any award of damages under this section, an
additional award of two times the amount of the license fee that the
proprietor of the establishment concerned should have paid the
plaintiff for such use during the preceding period of up to 3 years.''.

c97d841a7e4344b425e26a230710264cb65bb8d6217a218087ccdebb2fe7eae5

Section 101 of title 17, United States Code, is amended--
(1) by inserting after the definition of ``display'' the
following:
``An `establishment' is a store, shop, or any similar place of
business open to the general public for the primary purpose of
selling goods or services in which the majority of the gross square
feet of space that is nonresidential is used for that purpose, and
in which nondramatic musical works are performed publicly.
``A `food service or drinking establishment' is a restaurant,
inn, bar, tavern, or any other similar place of business in which
the public or patrons assemble for the primary purpose of being
served food or drink, in which the majority of the gross square
feet of space that is nonresidential is used for that purpose, and
in which nondramatic musical works are performed publicly.'';
(2) by inserting after the definition of ``fixed'' the
following:
``The `gross square feet of space' of an establishment means
the entire interior space of that establishment, and any adjoining
outdoor space used to serve patrons, whether on a seasonal basis or
otherwise.'';
(3) by inserting after the definition of ``perform'' the
following:
``A `performing rights society' is an association, corporation,
or other entity that licenses the public performance of nondramatic
musical works on behalf of copyright owners of such works, such as
the American Society of Composers, Authors and Publishers (ASCAP),
Broadcast Music, Inc. (BMI), and SESAC, Inc.''; and
(4) by inserting after the definition of ``pictorial, graphic
and sculptural works'' the following:
``A `proprietor' is an individual, corporation, partnership, or
other entity, as the case may be, that owns an establishment or a
food service or drinking establishment, except that no owner or
operator of a radio or television station licensed by the Federal
Communications Commission, cable system or satellite carrier, cable
or satellite carrier service or programmer, provider of online
services or network access or the operator of facilities therefor,
telecommunications company, or any other such audio or audiovisual
service or programmer now known or as may be developed in the
future, commercial subscription music service, or owner or operator
of any other transmission service, shall under any circumstances be
deemed to be a proprietor.''.

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Except as otherwise provided in this title, nothing in this title
shall be construed to relieve any performing rights society of any
obligation under any State or local statute, ordinance, or law, or
consent decree or other court order governing its operation, as such
statute, ordinance, law, decree, or order is in effect on the date of
the enactment of this Act, as it may be amended after such date, or as
it may be issued or agreed to after such date.

2bd920b231a45122ce3a2c32fce89a02cf3e6ed29b69e27fa1dc33d7d6846c0f

This title and the amendments made by this title shall take effect
90 days after the date of the enactment of this Act.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.

73002e99288865945383e1078e2d4cfca580cb161c61120a509c9cff6424d0a9

Fairness in Music Licensing Act of 1998 — S. 505

Other Sections

TITLE I

TITLE II

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