PUBLIC LAW 104-39 —NOV. 1, 1995
109 STAT. 339
"(B) The limitation set forth in subparagraph (A) of
this paragraph shall not apply if—
"(i) the licensor has granted and there remain
in effect licenses under section 106(6) for the public
performance of sound recordings by means of digital
audio transmission by at least 5 different interactive
services: Provided, however, That each such license
must be for a minimum of 10 percent of the copyrighted
sound recordings owned by the licensor that have been
licensed to interactive services, but in no event less
than 50 sound recordings; or
"(ii) the exclusive license is granted to perform
publicly up to 45 seconds of a sound recording and
the sole purpose of the performance is to promote
the distribution or performance of that sound record- -
ing.
"(C) Notwithstanding the grant of an exclusive or nonexclusive license of the right of public performance under
section 106(6), an interactive service may not publicly perform a sound recording unless a license has been granted
for the public performance of any copyrighted musical work
contained in the sound recording: Provided, That ^ich
license to publicly perform the copyrighted musical work
may be granted either by a performing rights society representing the copjndght owner or by the copyright owner.
"(D) The performance of a sound recording by means
of a retransmission of a digital audio transmission is not
an infringement of section 106(6) if—
"(i) the retransmission is 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
"(ii) the retransmission is 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.
"(E) For the purposes of this paragraph—
"(i) a 'licensor* shall include the licensing entity
and any other entity under any material degree of
common ownership, management, or control that owns
copyrights in sound recordings; and
"(ii) a 'performing rights society' is an association
or corporation that licenses the public performance
of nondramatic musical works on behalf of the copy-
right owner, such as the American Society of Composers, Authors and Publishers, Broadcast Music, Inc.,
and SESAC, Inc.
"(4) RIGHTS NOT OTHERWISE LIMITED. —
"(A) Except as expressly provided in this section, this
section does not limit or impair the exclusive right to
perform a sound recording publicly by means of a digital
audio transmission under section 106(6).
"(B) Nothing in this section annuls or limits in any
way—
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