H. Rept. 109-75 - 109th Congress (2005-2006)
May 10, 2005, As Reported by the Judiciary Committee

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House Report 109-75 - TECHNICAL CORRECTIONS TO TITLE 17, UNITED STATES CODE




[House Report 109-75]
[From the U.S. Government Printing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     109-75

======================================================================



 
                  TECHNICAL CORRECTIONS TO TITLE 17, 
                           UNITED STATES CODE

                                _______
                                

  May 10, 2005.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 1037]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 1037) to make technical corrections to title 17, United 
States Code, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     2
Committee Consideration..........................................     2
Vote of the Committee............................................     3
Committee Oversight Findings.....................................     3
New Budget Authority and Tax Expenditures........................     3
Congressional Budget Office Cost Estimate........................     3
Performance Goals and Objectives.................................     4
Constitutional Authority Statement...............................     4
Section-by-Section Analysis and Discussion.......................     4
Changes in Existing Law Made by the Bill, as Reported............     5
Markup Transcript................................................    12

                          Purpose and Summary

    H.R. 1037, to make technical corrections to title 17, 
United States Code, is intended to make technical corrections 
to the operation of the satellite distant signal compulsory 
copyright license that was amended by the enactment of the 
Satellite Home Viewer Extension and Reauthorization Act of 2004 
(``SHVERA''), which was included in the Consolidated 
Appropriations Act of 2005. \1\ The satellite distant signal 
compulsory copyright license permits satellite carriers to 
retransmit to subscribers, subject to the terms of the 
statutory license, programming that originates on out of market 
over-the-air television broadcast stations.
---------------------------------------------------------------------------
    \1\ The ``Satellite Home Viewer Extension and Reauthorization Act 
of 2004'' was included as title IX of division J of ``The Consolidated 
Appropriations Act of 2005'' (Public Law No. 108-447).
---------------------------------------------------------------------------

                Background and Need for the Legislation

    During the 108th Congress, the House Committee on the 
Judiciary reported H.R. 4518, the ``Satellite Home Viewer 
Extension and Reauthorization Act of 2005,'' (``SHVERA'') 
which, inter alia, provided for the extension of the statutory 
license for secondary transmissions under section 119 of title 
17, United States Code. \2\ After incorporating amendments to 
the Communications Act of 1934 with respect to such 
transmissions, which were contained in H.R. 4501, the 
``Satellite Home Viewer Extension and Reauthorization Act,'' 
which was reported by the House Committee on Energy and 
Commerce, the House passed H.R. 4518 by a voice vote on October 
6, 2004. The final version of this legislation was incorporated 
into H.R. 4818, the ``Consolidated Appropriations Act of 
2005,'' which was enacted in November 2004.
---------------------------------------------------------------------------
    \2\ See H. Rep. No. 108-660, (2004), which accompanied H.R. 4518, 
the ``Satellite Home Viewer Extension and Reauthorization Act of 
2004.''
---------------------------------------------------------------------------
    Following the structure of H.R. 4518, the enacted 
legislation contained two titles. The first made amendments to 
the Copyright Act, which is contained in title 17, United 
States Code; and the second amended the Communications Act, 
which is contained in title 47, United States Code. These 
titles extend the satellite distant signal compulsory copyright 
license and the retransmission consent requirement, 
respectively. Together, the titles also function to modernize 
and improve the statutory and regulatory regime that governs 
such transmissions.
    The technical amendments contained in H.R. 1037 relate 
directly to modifications of the Copyright Act. The proposed 
changes consist principally of non-controversial typographical, 
grammatical, stylistic and conforming changes, which are needed 
to eliminate unintended ambiguities in section 119 of title 17, 
United States Code. By correcting these provisions, the 
Committee believes that the interests of television viewers 
will be enhanced and that the prospect of expensive litigation 
involving affected stakeholders may be mitigated or eliminated.

                                Hearings

    No hearings were held on H.R. 1037.

                        Committee Consideration

    On March 3, 2005, the Subcommittee on Courts, the Internet 
and Intellectual Property met in open session and ordered 
favorably reported the bill, H.R. 1037, by a voice vote, a 
quorum being present. On March 9, 2005, the Committee met in 
open session and ordered favorably reported the bill, H.R. 
1037, without amendment by a voice vote, a quorum being 
present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that there 
were no recorded votes during the committee consideration of 
H.R. 1037.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of Rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1037, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 14, 2005.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1037, a bill to 
make technical corrections to title 17, United States Code.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Melissa E. 
Zimmerman, who can be reached at 226-2860.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 1037--A bill to make technical corrections to Title 17, United 
        States Code.
    H.R. 1037 would make technical corrections to current law 
relating to satellite retransmission of television 
broadcasting. CBO estimates that implementing the bill would 
have no effect on spending subject to appropriation. Enacting 
the bill would not affect direct spending or revenues.
    H.R. 1037 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of State, local, or tribal 
governments.
    The CBO staff contact for this estimate is Melissa E. 
Zimmerman, who can be reached at 226-2860. The estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                    Performance Goals and Objectives

    H.R. 1037 does not authorize funding. Therefore, clause 
3(c)(4) of Rule XIII of the Rules of the House of 
Representatives is inapplicable. Enactment of H.R. 1037 will 
help to eliminate unintended ambiguities that were contained in 
the final version of SHVERA. This will ensure that consumers, 
the affected stakeholders and the government officials charged 
with the responsibility for implementing and enforcing the 
provisions of SHVERA benefit from a more accurate and 
comprehensive statutory regime.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 8 of the 
Constitution.

               Section-by-Section Analysis and Discussion

   SECTION 1. AMENDMENTS RELATING TO STATUTORY LICENSE FOR SATELLITE 
                               CARRIERS.

    Section 1 includes principally typographical, grammatical, 
stylistic and conforming changes, which are needed to eliminate 
unintended ambiguities in section 119 of title 17, United 
States Code. This section of the Copyright Act specifies the 
terms and conditions that relate to the operation of the 
satellite distant signal compulsory copyright license, which is 
used by direct broadcast satellite (DBS) providers, such as 
DirecTV and EchoStar, to deliver out of market over-the-air 
broadcast television programs to eligible subscribers.
    Most of the changes merely insert proper cross-references, 
eliminate superfluous language, correct punctuation errors or 
conform the statute to editorial style/conventions used in the 
law of copyright. Therefore, this discussion is limited to an 
explanation of the technical and conforming changes in H.R. 
1037, which are most likely to require elucidation.
    H.R. 1037 contains two amendments to section 119(a)(2)(C) 
of title 17, United States Code, which are designed to give 
proper effect to provisions that are intended to exempt 
secondary transmissions of primary transmissions of programming 
from specific stations, in specific limited circumstances, from 
the unserved household limitation contained in section 
119(a)(2)(A) of title 17, United States Code. In either case, 
such transmissions by satellite carriers are subject to the 
payment of statutory copyright royalties.
    The first clarifies that the language of 119(a)(2)(C)(i) is 
intended to apply only in the case of a State in which there is 
licensed by the Federal Communications Commission a single 
commercial full-power station that was a network station on 
January 1, 1995.
    The second clarifies that the exemption from the unserved 
household limitation contained in 119(a)(2)(C)(iii) may be 
applied only in the counties of a State, which otherwise meet 
the conditions described therein, where programming from a 
distant network station located in that State, was transmitted 
by either a cable system or a satellite carrier to subscribers 
in that county on January 1, 2004.
    An amendment to section 119(a)(4)(E) is included to clarify 
that the ``if local, restrict distant'' provisions contained in 
subparagraphs (A), (B) and (C) were not intended to apply to 
satellite subscribers who receive a distant network signal that 
is significantly viewed, nor to subscribers who receive such a 
signal because they have a recreational vehicle (RV) or a 
commercial truck.
    Finally, section 119(a)(4)(F) is amended to correct a 
typographical error. A subscriber may seek a waiver from a 
broadcaster of the ``if local, restrict distant'' provisions in 
subparagraphs (A) and (B), not (C) and (D). Subsection (A) 
applies to subscribers who receive distant network signals on a 
grandfathered basis, while subsection (B) applies to 
subscribers who otherwise lawfully receive distant network 
signals. In each of these categories, subscribers may be 
confronted with an election to drop their distant network 
affiliate upon the receipt of their local network affiliate via 
satellite. Since these subscribers were receiving a distant 
network signal prior to the enactment of SHVERA, it is 
appropriate to allow them to petition their local network 
affiliate for a waiver to continue the receipt of the distant 
network affiliate. Subsection (C) applies to persons who seek 
to subscribe to one or more distant network stations after the 
effective date of SHVERA and who, at the time they seek to 
subscribe, already have local affiliates of those network 
stations made available to them by their satellite carrier. In 
this instance, there are no settled subscriber expectations and 
the interests of localism and copyright exclusivity are best 
served by not ``authorizing such a waiver process.'' Similarly, 
with respect to subsection (D), it is also inappropriate to 
provide such a waiver mechanism under the Copyright Act.
    In conclusion, the enactment of H.R. 1037, will help ensure 
the effective implementation of SHVERA and better effectuate 
the policies that motivated its enactment. In so doing, the 
interests of television viewers, content owners, broadcast 
stations and satellite carriers and distributors will be 
enhanced.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of Rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

              SECTION 119 OF TITLE 17, UNITED STATES CODE

Sec. 119. Limitations on exclusive rights: Secondary transmissions of 
                    superstations and network stations for private home 
                    viewing

    (a) Secondary Transmissions by Satellite Carriers.--
            (1) * * *
            (2) Network stations.--
                    (A) * * *
                    (B) Secondary transmissions to unserved 
                households.--
                            (i) In general.--The statutory 
                        license provided for in subparagraph 
                        (A) shall be limited to secondary 
                        transmissions of the signals of no more 
                        than two network stations in a single 
                        day for each television network to 
                        persons who reside in unserved 
                        households. The limitation in this 
                        clause shall not apply to secondary 
                        transmissions [under paragraph (3)] 
                        authorized under paragraph (3).

           *       *       *       *       *       *       *

                    (C) Exceptions.--
                            (i) States with single commercial 
                        full-power network station.--In a State 
                        in which there is licensed by the 
                        Federal Communications Commission a 
                        single commercial full-power station 
                        that was a network station on January 
                        1, 1995, the statutory license provided 
                        for in subparagraph (A) shall apply to 
                        the secondary transmission by a 
                        satellite carrier of the primary 
                        transmission of that station to any 
                        subscriber in a community that is 
                        located within that State and that is 
                        not within the first 50 television 
                        markets as listed in the regulations of 
                        the Commission as in effect on such 
                        date [(47 CFR 76.51)] (section 76.51 of 
                        title 47, Code of Federal Regulations).
                            (ii) States with all network 
                        stations and superstations in same 
                        local market.--In a State in which all 
                        network stations and superstations 
                        licensed by the Federal Communications 
                        Commission within that State as of 
                        January 1, 1995, are assigned to the 
                        same local market and that local market 
                        does not encompass all counties of that 
                        State, the statutory license provided 
                        under subparagraph (A) shall apply to 
                        the secondary transmission by a 
                        satellite carrier of the primary 
                        transmissions of such station to all 
                        subscribers in the State who reside in 
                        a local market that is within the first 
                        50 major television markets as listed 
                        in the regulations of the Commission as 
                        in effect on such date (section 76.51 
                        of title [47 of the Code] 47, Code of 
                        Federal Regulations).
                            (iii) Additional stations.--In the 
                        case of that State in which are located 
                        4 counties that--
                                    (I) * * *

           *       *       *       *       *       *       *

                        the statutory license provided under 
                        subparagraph (A) shall apply to 
                        secondary transmissions by a satellite 
                        carrier to subscribers in any such 
                        county of the primary transmissions of 
                        any network station located in that 
                        State, [if the satellite carrier] if a 
                        satellite carrier or cable system was 
                        making such secondary transmissions to 
                        any subscribers in that county on 
                        January 1, 2004.
                            (iv) Certain additional stations.--
                        If 2 adjacent counties in a single 
                        State are in a local market comprised 
                        principally of counties located in 
                        another State, the statutory license 
                        provided for in subparagraph (A) shall 
                        apply to the secondary transmission by 
                        a satellite carrier to subscribers in 
                        those 2 counties of the primary 
                        transmissions of any network station 
                        located in the capital of the State in 
                        which such 2 counties are located, if--
                                    (I) * * *
                                    (II) the total number of 
                                television households in the 2 
                                counties combined did not 
                                exceed 10,000 for the year 2003 
                                according to U.S. Television 
                                Household Estimates by Nielsen 
                                Media Research.

           *       *       *       *       *       *       *

            (3) Secondary transmissions of significantly viewed 
        signals.--
                    (A) In general.--Notwithstanding the 
                provisions of paragraph (2)(B), and subject to 
                subparagraph (B) of this paragraph, the 
                statutory license provided for in paragraphs 
                (1) and (2) shall apply to the secondary 
                transmission of the primary transmission of a 
                network station or a superstation to a 
                subscriber who resides outside the station's 
                local market (as defined in section 122(j)) but 
                within a community in which the signal has been 
                determined by the Federal Communications 
                [Commission, to be significantly viewed in such 
                community, pursuant to the rules, regulations, 
                and authorizations of the Federal 
                Communications Commission in effect on April 
                15, 1976, applicable to determining with 
                respect to a cable system whether signals are 
                significantly viewed in a community.] 
                Commission to be significantly viewed, as 
                defined in section 76.5 of title 47, Code of 
                Federal Regulations, as in effect on April 15, 
                1976.

           *       *       *       *       *       *       *

                    (C) Waiver.--
                            (i) In general.--A subscriber who 
                        is denied the secondary transmission of 
                        the primary transmission of a network 
                        station under subparagraph (B) may 
                        request a waiver from such denial by 
                        submitting a request, through the 
                        subscriber's satellite carrier, to the 
                        network station in the local market 
                        affiliated with the same network where 
                        the subscriber is located. The network 
                        station shall accept or reject the 
                        subscriber's request for a waiver 
                        within 30 days after receipt of the 
                        request. If the network station fails 
                        to accept or reject the subscriber's 
                        request for a waiver within that 30-day 
                        period, that network station shall be 
                        deemed to agree to the waiver request. 
                        Unless specifically stated otherwise by 
                        the network station, a waiver that was 
                        granted before the date of the 
                        enactment of the Satellite Home Viewer 
                        Extension and Reauthorization Act of 
                        2004 under section 339(c)(2) of the 
                        Communications Act of 1934 shall not 
                        constitute a waiver for purposes of 
                        this subparagraph.

           *       *       *       *       *       *       *

            (4) Statutory license where retransmissions into 
        local market available.--
                    (A) * * *

           *       *       *       *       *       *       *

                    [(E) Other provisions not affected.--This 
                paragraph shall not affect the applicability of 
                the statutory license to secondary 
                transmissions under paragraph (3) or to 
                unserved households included under paragraph 
                (12).]
                    (E) Other provisions not affected.--
                Subparagraphs (A), (B), and (C) shall not 
                affect the applicability of the statutory 
                license to secondary transmissions authorized 
                under paragraphs (3) and (12).
                    (F) Waiver.--A subscriber who is denied the 
                secondary transmission of a network station 
                under subparagraph [(C) or (D)] (A) or (B) may 
                request a waiver from such denial by submitting 
                a request, through the subscriber's satellite 
                carrier, to the network station in the local 
                market affiliated with the same network where 
                the subscriber is located. The network station 
                shall accept or reject the subscriber's request 
                for a waiver within 30 days after receipt of 
                the request. If the network station fails to 
                accept or reject the subscriber's request for a 
                waiver within that 30-day period, that network 
                station shall be deemed to agree to the waiver 
                request. Unless specifically stated otherwise 
                by the network station, a waiver that was 
                granted before the date of the enactment of the 
                Satellite Home Viewer Extension and 
                Reauthorization Act of 2004 under section 
                339(c)(2) of the Communications Act of 1934 
                shall not constitute a waiver for purposes of 
                this subparagraph.

           *       *       *       *       *       *       *

            (14) Waivers.--A subscriber who is denied the 
        secondary transmission of a signal of a network station 
        under subsection (a)(2)(B) may request a waiver from 
        such denial by submitting a request, through the 
        subscriber's satellite carrier, to the network station 
        asserting that the secondary transmission is 
        prohibited. The network station shall accept or reject 
        a subscriber's request for a waiver within 30 days 
        after receipt of the request. If a television network 
        station fails to accept or reject a subscriber's 
        request for a waiver within the 30-day period after 
        receipt of the request, that station shall be deemed to 
        agree to the waiver request and have filed such written 
        waiver. Unless specifically stated otherwise by the 
        network station, a waiver that was granted before the 
        date of the enactment of the Satellite Home Viewer 
        Extension and Reauthorization Act of 2004 under section 
        339(c)(2) of the Communications Act of 1934, and that 
        was in effect on such date of enactment, shall 
        constitute a waiver for purposes of this paragraph.
            (15) Carriage of low power television stations.--
                    (A) In general.--Notwithstanding paragraph 
                (2)(B), and subject to subparagraphs (B) 
                through (F) of this paragraph, the statutory 
                license provided for in paragraphs (1) and (2) 
                shall apply to the secondary transmission of 
                the primary transmission of a network station 
                or a superstation that is licensed as a low 
                power television station[,] to a subscriber who 
                resides within the same local market.

           *       *       *       *       *       *       *

            (16) Restricted transmission of out-of-State 
        distant network signals into certain markets.--
                    (A) * * *
                    (B) Exception.--The limitation in 
                subparagraph (A) shall not apply to the 
                secondary transmission of the primary 
                transmission of a digital signal of a network 
                station located outside of the State of Alaska 
                if, at the time that the secondary transmission 
                is made, no television station licensed to a 
                community in the State and affiliated with the 
                same network makes primary transmissions of a 
                digital signal.
    (c) Adjustment of Royalty Fees.--
            (1) Applicability and determination of royalty fees 
        for analog signals.--
                    (A) * * *
                    (B) Fee set by voluntary negotiation.--On 
                or before January 2, 2005, 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 the royalty fee to be 
                paid by satellite carriers and distributors for 
                the secondary transmission of the primary 
                analog [transmission] transmissions of network 
                stations and superstations under subsection 
                (b)(1)(B).
                    (C) Negotiations.--Satellite carriers, 
                distributors, and copyright owners entitled to 
                royalty fees under this section shall negotiate 
                in good faith in an effort to reach a voluntary 
                agreement or agreements for the payment of 
                royalty fees. Any such satellite carriers, 
                [distributors and copyright] distributors, and 
                copyright owners may at any time negotiate and 
                agree to the royalty [fee] fees, and may 
                designate common agents to negotiate, agree to, 
                or pay such fees. If the parties fail to 
                identify common agents, the Librarian of 
                Congress shall do so, after requesting 
                recommendations from the parties to the 
                negotiation proceeding. The parties to each 
                negotiation proceeding shall bear the cost 
                thereof.
                    (D) Agreements binding on parties; filing 
                of agreements; public notice.--(i) Voluntary 
                agreements negotiated at any time in accordance 
                with this paragraph shall be binding upon all 
                satellite carriers, distributors, and copyright 
                owners that [a] are parties thereto. Copies of 
                such agreements shall be filed with the 
                Copyright Office within 30 days after execution 
                in accordance with regulations that the 
                Register of Copyrights shall prescribe.
                            (ii)(I) Within 10 days after 
                        publication in the Federal Register of 
                        a notice of the initiation of voluntary 
                        negotiation proceedings, parties who 
                        have reached a voluntary agreement may 
                        request that the royalty fees in that 
                        agreement be applied to all satellite 
                        carriers, distributors, and copyright 
                        owners without convening an arbitration 
                        proceeding pursuant to subparagraph 
                        [(E)] (F).

           *       *       *       *       *       *       *

                    (F) Fee set by compulsory arbitration.--
                            (i) Notice of initiation of 
                        proceedings.--On or before May 1, 2005, 
                        the Librarian of Congress shall cause 
                        notice to be published in the Federal 
                        Register of the initiation of 
                        arbitration proceedings for the purpose 
                        of determining the [royalty fee to be 
                        paid for the secondary transmission of 
                        primary analog transmission of network 
                        stations and superstations under 
                        subsection (b)(1)(B) by satellite 
                        carriers and distributors] royalty fees 
                        to be paid by satellite carriers and 
                        distributors for the secondary 
                        transmission of the primary analog 
                        transmissions of network stations and 
                        superstations under subsection 
                        (b)(1)(B)
                                    (I) in the absence of a 
                                voluntary agreement filed in 
                                accordance with subparagraph 
                                (D) that establishes royalty 
                                fees to be paid by all 
                                satellite carriers and 
                                distributors; or
                                    (II) if an objection to the 
                                fees from a voluntary agreement 
                                submitted for adoption by the 
                                Librarian of Congress to apply 
                                to all satellite carriers, 
                                distributors, and copyright 
                                owners is received under 
                                subparagraph (D) from a party 
                                with an intent to participate 
                                in the arbitration proceeding 
                                and a significant interest in 
                                the outcome of that proceeding.
                        Such [arbitrary] arbitration proceeding 
                        shall be conducted under chapter 8 as 
                        in effect on the day before the date of 
                        the enactment of the Copyright Royalty 
                        and Distribution Act of 2004.
                            (ii) Establishment of royalty 
                        fees.--In determining royalty fees 
                        under this subparagraph, the copyright 
                        arbitration royalty panel appointed 
                        under chapter 8, as in effect on the 
                        day before the date of the enactment of 
                        the Copyright Royalty and Distribution 
                        Act of 2004 shall establish fees for 
                        the secondary transmissions of the 
                        primary analog transmission of network 
                        stations and superstations that most 
                        clearly represent the [fair market 
                        value of secondary transmissions] fair 
                        market value of such secondary 
                        transmissions, except that the 
                        Librarian of Congress and any copyright 
                        arbitration royalty panel shall adjust 
                        those fees to account for the 
                        obligations of the parties under any 
                        applicable voluntary agreement filed 
                        with the Copyright Office pursuant to 
                        subparagraph (D). In determining the 
                        fair market value, the panel shall base 
                        its decision on economic, competitive, 
                        and programming information presented 
                        by the parties, including--
                                    (I) * * *

           *       *       *       *       *       *       *

                            (iii) Period during which decision 
                        of arbitration panel or order of 
                        librarian effective.--The obligation to 
                        pay the royalty fee established under a 
                        determination which--
                                    (I) is made by a copyright 
                                arbitration royalty panel in an 
                                arbitration proceeding under 
                                this paragraph and is adopted 
                                by the Librarian of Congress 
                                under section 802(f), as in 
                                effect on the day before the 
                                date of the enactment of the 
                                Copyright Royalty and 
                                Distribution Act of [2004;] 
                                2004, or
                                    [(II) is established by the 
                                Librarian under section 802(f) 
                                as in effect on the day before 
                                such date of enactment shall be 
                                effective as of January 1, 
                                2005.]
                                    (II) is made by the 
                                Librarian under section 802(f) 
                                as in effect on the day before 
                                such date of enactment,
                        shall be effective as of January 1, 
                        2005.
                            (iv) Persons subject to royalty 
                        fee.--The royalty fee referred to in 
                        clause (iii) shall be binding on all 
                        satellite carriers, [distributors and 
                        copyright owners,] distributors, and 
                        copyright owners who are not party to a 
                        voluntary agreement filed with the 
                        Copyright Office under subparagraph 
                        (D).
            (2) Applicability and determination of royalty fees 
        for digital signals.--The process and requirements for 
        establishing the royalty fee payable under subsection 
        (b)(1)(B) for the secondary transmission of the primary 
        digital transmissions of network stations and 
        superstations shall be the same as that set forth in 
        paragraph (1) for the secondary transmission of the 
        primary analog transmission of network stations and 
        superstations, except that--
                    (A) the initial fee under paragraph (1)(A) 
                shall be the rates set forth in [section 
                298.3(b)(1)] section 258.3(b)(1) and (2) of 
                title 37, Code of Federal Regulations, as in 
                effect on the date of the enactment of the 
                Satellite Home Viewer Extension and 
                Reauthorization Act of 2004, reduced by 22.5 
                percent;

           *       *       *       *       *       *       *

                    (C) the royalty fees that are established 
                for the secondary transmission of the primary 
                digital transmission of network stations and 
                superstations in accordance with [to] the 
                procedures set forth in paragraph (1)(F)(iii) 
                and are payable under subsection (b)(1)(B)--
                            (i) * * *

           *       *       *       *       *       *       *

    (d) Definitions.--As used in this section--
            (1) * * *

           *       *       *       *       *       *       *

            (12) Low power television station.--The term ``low 
        power television station'' means a [low power 
        television as defined] low power television station as 
        defined under section 74.701(f) of title 47, Code of 
        Federal Regulations, as in effect on June 1, 2004. For 
        purposes of this paragraph, the term ``low power 
        television station'' includes a low power television 
        station that has been accorded primary status as a 
        Class A television licensee under section 73.6001(a) of 
        title 47, Code of Federal Regulations.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                        WEDNESDAY, MARCH 9, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present comprised entirely of Members of the 
majority party. So rather than doing a ratification of minority 
Committee assignments, since there is no one here to make a 
motion to do that, we will now go to the next item on the 
agenda which is the adoption of S. 167, the ``Family 
Entertainment and Copyright Act of 2005,'' and the Chair 
recognizes the gentlemen from Texas, Mr. Smith, the Chairman of 
the Subcommittee on Courts, the Internet, and Intellectual 
Property for a motion.
    Mr. Smith. Mr. Chairman, I ask unanimous consent that we 
consider the following bills en bloc: S. 167, H.R. 683, H.R. 
1036, H.R. 1037, H.R. 1038.
    Chairman Sensenbrenner. How about House Concurrent 
Resolution----
    Mr. Smith. It's my understanding, Chairman, that needs to 
be considered separately.
    Chairman Sensenbrenner. Okay. Without objection, the 5 
bills mentioned by the gentleman from Texas will be considered 
en bloc, and the Chair recognizes the gentleman from Texas to 
explain them.
    Mr. Smith. I'll try to be brief, Mr. Chairman. The first 
bill, S. 167 really consists of three previous bills that this 
Committee has approved and that passed the House last year. The 
first one is the Family Movie Act, and I think Members will 
recall that that simply gives parents the right to determine 
what their children see when they rent or buy a movie video.
    The second part of this particular bill is the Art Act 
which creates new penalties for those who camcord movies in 
public theaters and who willfully infringe copyright law by 
distributing copies of prereleased works, movies or otherwise.
    The Trademark Dilution Revision Act of 2005 simply, 
basically protects trademarks in a better way and also makes 
sure that people cannot infringe trademarks as easily as they 
do now. It also does a good job of trying to keep us out of 
court to determine some of the ambiguities of that particular 
subject.
    The two technical correction bills are just that, technical 
corrections of the Satellite Viewer, Home Viewer Movie Act, and 
the technical corrections, in addition to the satellite 
corrections are technical corrections of the CARP bill, which 
we approved last year and which passed the House.
    The last bill in the en bloc package, Mr. Chairman, is your 
bill, the Multidistrict Litigation Restoration Act of 2005, and 
I will yield to you to make any comments on that.
    And that would be the quick summary of the five bills en 
bloc.
    [The bill, H.R. 1037, follows:]

  
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    Chairman Sensenbrenner. The Chair passes on this.
    Without objection, all Members may place opening statements 
in the record on each of the bills being considered en bloc at 
this time. Hearing no objection, so ordered.
    [The prepared statement of Mr. Berman follows:]
Prepared Statement of the Honorable Howard L. Berman, a Representative 
     in Congress from the State of California, and Ranking Member, 
    Subcommittee on Courts, the Internet, and Intellectual Property
    I want to commend the Chairman of the Subcommittee for working so 
closely with me in putting together this bill.
    One of the Subcommittee's major accomplishments last Congress was 
to pass the Satellite Home Viewer Extension and Reauthorization Act of 
2004, which reauthorized for five years the compulsory license by 
satellite carriers to transmit copyrighted programming to their 
customers.
    While passage of SHVERA was a major accomplishment, its many 
revisions--several made with little time in the final hours of the lame 
duck session--were not always perfectly drafted. Therefore, we 
introduce the technical corrections bill before us today.
    HR 1037, the Technical Corrections to the Satellite Home Viewer 
Extension and Reauthorization Act of 2004, will correct the drafting 
errors contained in SHVERA. It corrects spelling and punctuation 
errors, harmonizes cross-references and paragraph numbering, or 
conforms the bill to the preferred editorial style in copyright law.
    I want to thank the Copyright Office and Sandy Strokoff with the 
Office of Legislative Counsel for their assistance in noting many of 
the errors and then their help in drafting this bill.
    I urge my colleagues to support this bill.

    Chairman Sensenbrenner. Are there any amendments to any of 
the bills?
    [No response.]
    Chairman Sensenbrenner. There being no amendments, without 
objection, the previous question is ordered on reporting the 
bills favorably and the vote on reporting these bills favorably 
will be taken when a reporting quorum is present.
    Without objection the order for the previous question is 
vitiated. There is a Subcommittee amendment on H.R. 683, the 
Dilution Bill. Without objection, the Subcommittee amendment is 
agreed to. Hearing none, so ordered.
    And now without objection, the previous question is ordered 
on reporting the bills favorably with H.R. 683 being reported 
favorably as amended. And the vote will be taken at the time 
that a reporting quorum appears.
    [Intervening business.]
    Chairman Sensenbrenner. If there are no further amendments, 
without objection, the previous question is ordered favorably 
reporting Senate 167.
    We are still one short of a reporting quorum. I would ask 
the Members present to be patient, and as soon as we round up--
here we go. They have been rounded up. [Laughter.]
    The previous question has been ordered on reporting 
favorably the following bills: Senate 167, H.R. 683, H.R. 1036, 
H.R. 1037 and H.R. 1038. So many as are in favor of reporting 
these bills favorably will say aye.
    Opposed, no?
    The ayes appear to have it. The ayes have it, and the bills 
are reported favorably.
    Without objection, those bills which were amended here, 
meaning H.R. 683, will be reported favorably to the House in 
the form of a single amendment in the nature of a substitute, 
incorporating the amendments adopted here today. That unanimous 
consent request also includes Senate 167 as amended.
    Is there any objection?
    [Intervening business.]
    Chairman Sensenbrenner. Okay. Without objection, all 
Members will be given 2 days as provided by House rules, in 
which to submit additional dissenting supplemental or minority 
views, and without objection the staff is directed to make any 
technical and conforming changes.
    Chairman Sensenbrenner. There being no further business to 
come before the Committee, the Committee stands adjourned.
    [Intervening business.]
    [Whereupon, at 10:17 a.m., the Committee was adjourned.]