S.227 - Digital Performance Right in Sound Recordings Act of 1995104th Congress (1995-1996)
|Sponsor:||Sen. Hatch, Orrin G. [R-UT] (Introduced 01/13/1995)|
|Committees:||Senate - Judiciary|
|Committee Reports:||S. Rept. 104-128|
|Latest Action:||11/01/1995 Became Public Law No: 104-39. (TXT | PDF)|
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Summary: S.227 — 104th Congress (1995-1996)All Bill Information (Except Text)
Passed Senate amended (08/08/1995)
Digital Performance Right in Sound Recordings Act of 1995 - Provides the copyright owner of a sound recording an exclusive right (with specified limitations) to perform the recording publicly by means of a digital audio transmission.
(Sec. 3) Provides that performance of a sound recording publicly by means of a digital audio transmission, other than as part of an interactive service, is not a copyright infringement if the performance is part of: (1) a nonsubscription transmission other than a retransmission, an initial nonsubscription retransmission made for direct reception by members of the public of a prior or simultaneous incidental transmission not made for direct reception by members of the public, or a nonsubscription broadcast transmission; (2) a retransmission of a nonsubscription broadcast transmission, provided specified conditions are met with regard to retransmissions of a radio station's broadcast transmission; or (3) a transmission that is a prior or simultaneous transmission incidental to an exempt transmission, that is within a business establishment and confined to its premises or the immediate vicinity, that is a simultaneous and authorized retransmission by any retransmitter of a transmission by a transmitter licensed to publicly perform the sound recording, or that is a transmission to a business establishment for use in the ordinary course of its business, subject to specified requirements.
Subjects the performance of a sound recording publicly by means of a subscription digital audio transmission to statutory licensing if: (1) the transmission is not part of an interactive service; (2) the transmission does not exceed the sound recording performance complement; (3) 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; (4) the transmitting entity does not automatically and intentionally cause any device receiving the transmission to switch from one program channel to another, except in the case of transmission to a business establishment; and (5) the transmission of the sound recording is accompanied by the information encoded in that recording, if any, by or under the authority of the copyright owner that identifies the title, the featured recording artist, and related information, with exceptions.
Prohibits any interactive service from: (1) being granted an exclusive license for the performance of a sound recording publicly by means of digital audio transmission for a period in excess of 12 months, with exceptions; and (2) publicly performing a sound recording unless a license has been granted for the public performance of any copyrighted musical work contained in the recording.
Specifies that the performance of a sound recording by means of a retransmission of a digital audio transmission is not an infringement if the retransmission is: (1) 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 (2) 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.
Authorizes copyright owners and performers of sound recordings affected by this Act: (1) with regard to statutory licenses, to negotiate and agree upon the royalty rates and license terms and conditions for the performance of such recordings and the proportionate division of fees paid among copyright owners, and to designate common agents on a nonexclusive basis to negotiate, agree to, pay, or receive payments; and (2) with regard to other licenses granted (such as for performances by interactive services or performances that exceed the sound recording performance complement), to designate common agents to act on the owner's behalf to grant licenses and receive and remit royalty payments or on the performer's behalf to obtain licenses and collect and pay royalty fees.
Directs the Librarian of Congress: (1) to publish in the Federal Register notice of the initiation of voluntary negotiation proceedings for determining reasonable terms and rates of royalty payments for activities involving subscription transmissions until December 31, 2000 (permits copyright owners or performers of affected sound recordings to submit licenses covering such activities to the Librarian); (2) in the absence of negotiated license agreements and upon the filing of a petition, to convene a copyright arbitration royalty panel to be binding on such owners and performers; and (3) to establish requirements by which such owners may receive notice of the use of their sound recordings and requirements under which records of use shall be kept and made available by entities performing such recordings. Requires that publication of a notice of the initiation of voluntary negotiation proceedings be repeated: (1) no later than 30 days after a petition is filed by any copyright owners or performers of sound recordings indicating that a new type of digital audio transmission service on which such recordings are performed is or is about to become operational; and (2) in the first week of January, 2000, and at five-year intervals thereafter. Sets forth time requirements regarding repetition of procedures under this section.
Permits any person to perform a sound recording publicly by means of a nonexempt subscription transmission without infringing the exclusive right of the copyright owner of the sound recording: (1) by complying with such notice requirements as the Librarian shall prescribe and by paying the prescribed royalty fees; or (2) if such fees have not been set, by agreeing to pay such fees as shall be determined.
Entitles a featured or nonfeatured recording artist who performs on a sound recording that has been licensed for a subscription transmission to receive payments from the copyright owner of the sound recording in accordance with the terms of the artist's contract.
Provides for the following allocation of the copyright owner's receipts from the statutory licensing of subscription transmission performances of a sound recording: (1) 2.5 percent shall be deposited in an escrow account to be distributed to nonfeatured musicians; (2) 2.5 percent shall be deposited into an escrow account to be distributed to nonfeatured vocalists; and (3) 45 percent shall be allocated, on a per sound recording basis, to the featured artists on such recording.
Requires the copyright owner of a sound recording who licenses an affiliated entity the right to publicly perform a sound recording by means of a digital audio transmission to make the licensed sound recording available on no less favorable terms and conditions to all bona fide entities that offer similar services. Specifies exceptions, including licenses for an interactive service.
Expresses the intent of the 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 this Act.
(Sec. 4) Authorizes those who make phonorecords or digital phonorecord deliveries, when phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, to obtain a compulsory license to make and distribute phonorecords of the work. Specifies that a compulsory license 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 such transmission is also a public performance of the sound recording or of any nondramatic musical work embodied therein.
Sets forth provisions regarding royalties payable by the compulsory licensee after December 31, 1997, including provisions regarding: (1) negotiation of the terms and rates of royalty payments by copyright owners and persons entitled to compulsory licenses; (2) a requirement that such compulsory license royalty rates for digital phonorecord deliveries be established de novo; (3) publication by the Librarian of Congress of notice of the initiation of voluntary negotiation proceedings to determine reasonable terms and rates of royalty payments for digital phonorecord deliveries; (4) the convening of a copyright arbitration royalty panel by the Librarian in the absence of negotiated license agreements; (5) repetition of such procedures every five years after 1997; and (6) the effect of negotiated license agreements.
Requires a digital phonorecord delivery to be accompanied by any information encoded by the copyright owner identifying the title, writer, featured artist, and related information about the sound recording.
Specifies that a digital phonorecord delivery of a sound recording is actionable as an act of infringement unless: (1) it has been authorized by the copyright owner of the recording; and (2) the copyright owner or the entity making the delivery has obtained a compulsory license or has otherwise been authorized by the owner to distribute or authorize the distribution, by means of a digital phonorecord delivery, or each musical work embodied in the recording.
Directs that 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 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 copyright owner does not license the distribution of a phonorecord of the nondramatic musical work.
Makes provisions of this section concerning digital phonorecord deliveries inapplicable to any exempt transmissions or retransmissions specified earlier in this Act.