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Public Law No: 105-298 (10/27/1998)

 
[105th Congress Public Law 298]
[From the U.S. Government Printing Office]


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[DOCID: f:publ298.105]


[[Page 112 STAT. 2827]]

Public Law 105-298
105th Congress

                                 An Act


 
To amend the provisions of title 17, United States Code, with respect to 
  the duration of copyright, and for other purposes. <<NOTE: Oct. 27, 
                           1998 -  [S. 505]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

 TITLE I-- <<NOTE: Sonny Bono Copyright Term Extension Act.>> COPYRIGHT 
TERM EXTENSION

SEC. 101. SHORT TITLE. <<NOTE: 17 USC 101 note.>> 

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

SEC. 102. DURATION OF COPYRIGHT PROVISIONS.

    (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'';

[[Page 112 STAT. 2828]]

                          (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) <<NOTE: 17 USC 101 note.>> 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''.

[[Page 112 STAT. 2829]]

SEC. 103. TERMINATION OF TRANSFERS AND LICENSES COVERING EXTENDED 
                        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.''.

SEC. 104. REPRODUCTION BY LIBRARIES AND ARCHIVES.

    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.''.
SEC. 105. VOLUNTARY NEGOTIATION REGARDING DIVISION OF ROYALTIES.

    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.

SEC. 106. <<NOTE: 17 USC 108 note.>> EFFECTIVE DATE.

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

[[Page 112 STAT. 2830]]

       TITLE II--MUSIC <<NOTE: Fairness In Music Licensing Act of 
1998.>> LICENSING EXEMPTION FOR FOOD SERVICE OR DRINKING ESTABLISHMENTS

SEC. 201. <<NOTE: 17 USC 101 note.>> SHORT TITLE.

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

SEC. 202. EXEMPTIONS.

    (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

[[Page 112 STAT. 2831]]

                      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,''.

SEC. 203. LICENSING BY PERFORMING RIGHTS SOCIETIES.

    (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:

[[Page 112 STAT. 2832]]

            ``(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

[[Page 112 STAT. 2833]]

        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.''.

SEC. 204. PENALTIES.

    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.''.

SEC. 205. DEFINITIONS.

    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

[[Page 112 STAT. 2834]]

        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.''.

SEC. 206. <<NOTE: 17 USC 101 note.>> CONSTRUCTION OF TITLE.

    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.

SEC. 207. <<NOTE: 17 USC 101 note.>> EFFECTIVE DATE.

    This title and the amendments made by this title shall take effect 
90 days after the date of the enactment of this Act.

    Approved October 27, 1998.

LEGISLATIVE HISTORY--S. 505 (H.R. 2589):
---------------------------------------------------------------------------

HOUSE REPORTS: No. 105-452 accompanying H.R. 2589 (Comm. on the 
Judiciary).
CONGRESSIONAL RECORD, Vol. 144 (1998):
            Oct. 7, considered and passed House and Senate.

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