Performance Rights Act

by the United States Congress

111TH CONGRESS
1ST SESSION

H. R. 848

To provide parity in radio performance rights under title 17, United States Code, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

February 4, 2009

Mr. CONYERS (for himself, Mr. ISSA, Mr. BERMAN, Mrs. BLACKBURN, Mr. HODES, Ms. WASSERMAN SCHULTZ, Mr. WEINER, Mr. COHEN, Mr. NADLER of New York, Mr. WEXLER, Mr. PETERSON, Mr. JOHNSON of Georgia, Mr. SCHIFF, Mr. SHERMAN, Mr. SHADEGG, Ms. JACKSON-LEE of Texas, Ms. LINDA T. SANCHEZ of California, Ms. HARMAN, and Mr. WAXMAN) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To provide parity in radio performance rights under title 17, United States Code, and for other purposes.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the `Performance Rights Act'.

SEC. 2. EQUITABLE TREATMENT FOR TERRESTRIAL BROADCASTS.

(a) Performance Right Applicable to Radio Transmissions Generally- Section 106(6) of title 17, United States Code, is amended to read as follows:

`(6) in the case of sound recordings, to perform the copyrighted work publicly by means of an audio transmission.'.

(b) Inclusion of Terrestrial Broadcasts in Existing Performance Right- Section 114(d)(1) of title 17, United States Code, is amended--

(1) in the matter preceding subparagraph (A), by striking `a digital' and inserting `an'; and

(2) by striking subparagraph (A).

(c) Inclusion of Terrestrial Broadcasts in Existing Statutory License System- Section 114(j)(6) of title 17, United States Code, is amended by striking `digital'.

SEC. 3. SPECIAL TREATMENT FOR SMALL, NONCOMMERCIAL, EDUCATIONAL, AND RELIGIOUS STATIONS AND CERTAIN USES.

(a) Small, Noncommercial, Educational, and Religious Radio Stations-

(1) IN GENERAL- Section 114(f)(2) of title 17, United States Code, is amended by adding at the end the following:

`(D) Notwithstanding the provisions of subparagraphs (A) through (C), each individual terrestrial broadcast station that has gross revenues in any calendar year of less than $1,250,000 may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $5,000 per year, in lieu of the amount such station would otherwise be required to pay under this paragraph. Such royalty fee shall not be taken into account in determining royalty rates in a proceeding under chapter 8, or in any other administrative, judicial, or other Federal Government proceeding.

`(E) Notwithstanding the provisions of subparagraphs (A) through (C), each individual terrestrial broadcast station that is a public broadcasting entity as defined in section 118(f) may elect to pay for its over-the-air nonsubscription broadcast transmissions a royalty fee of $1,000 per year, in lieu of the amount such station would otherwise be required to pay under this paragraph. Such royalty fee shall not be taken into account in determining royalty rates in a proceeding under chapter 8, or in any other administrative, judicial, or other Federal Government proceeding.'.

(2) PAYMENT DATE- A payment under subparagraph (D) or (E) of section 114(f)(2) of title 17, United States Code, as added by paragraph (1), shall not be due until the due date of the first royalty payments for nonsubscription broadcast transmissions that are determined, after the date of the enactment of this Act, under such section 114(f)(2) by reason of the amendment made by section 2(b)(2) of this Act.

(b) Transmission of Religious Services; Incidental Uses of Music- Section 114(d)(1) of title 17, United States Code, as amended by section 2(b), is further amended by inserting the following before subparagraph (B):

`(A) an eligible nonsubscription transmission of--

`(i) services at a place of worship or other religious assembly; and

`(ii) an incidental use of a musical sound recording;'.

SEC. 4. AVAILABILITY OF PER PROGRAM LICENSE.

Section 114(f)(2)(B) of title 17, United States Code, is amended by inserting after the second sentence the following new sentence: `Such rates and terms shall include a per program license option for terrestrial broadcast stations that make limited feature uses of sound recordings.'

SEC. 5. NO HARMFUL EFFECTS ON SONGWRITERS.

(a) No Adverse Affect on License Fees for Underlying Musical Works; Necessity for Other Licenses-

(1) IN GENERAL- Section 114(i) of title 17, United States Code, is amended to read as follows:

`(i) No Adverse Affect on License Fees for Underlying Musical Works; Necessity for Other Licenses-

`(1) NO ADVERSE AFFECT ON LICENSE FEES FOR UNDERLYING MUSICAL WORKS- License fees payable for the public performance of sound recordings under section 106(6) shall not be cited, taken into account, or otherwise used in any administrative, judicial, or other governmental forum or proceeding, or otherwise, to set or adjust the license fees payable to copyright owners of musical works or their representatives for the public performance of their works, for the purpose of reducing or adversely affecting such license fees. License fees payable to copyright owners for the public performance of their musical works shall not be reduced or adversely affected in any respect as a result of the rights granted by section 106(6).

`(2) NECESSITY FOR OTHER LICENSES- Notwithstanding the grant by an owner of copyright in a sound recording of an exclusive or nonexclusive license of the right under section 106(6) to perform the work publicly, a licensee of that sound recording may not publicly perform such sound recording unless a license has been granted for the public performance of any copyrighted musical work contained in the sound recording. Such license to publicly perform the copyrighted musical work may be granted either by a performing rights society representing the copyright owner or by the copyright owner.'.

(2) CONFORMING AMENDMENT- Section 114(d)(3)(C) of title 17, United States Code, is hereby repealed.

(b) Public Performance Rights and Royalties- Nothing in this Act or the amendments made by this Act shall adversely affect in any respect the public performance rights of or royalties payable to songwriters or copyright owners of musical works.

(c) Preservation of Royalties on Underlying Works Publicly Performed by Terrestrial Broadcast Stations- Section 114(f) of title 17, United States Code, is amended by adding at the end the following new paragraph:

`(6) Notwithstanding any other provision of this section, under no circumstances shall the rates established by the Copyright Royalty Judges for the public performance of sound recordings be cited, taken into account, or otherwise used in any administrative, judicial, or other governmental forum or proceeding, or otherwise, to reduce or adversely affect the license fees payable to copyright owners of musical works or their representatives for the public performance of their works by terrestrial broadcast stations, and such license fees for the public performance of musical works shall be independent of license fees paid for the public performance of sound recordings.'.

SEC. 6. PAYMENT OF CERTAIN ROYALTIES.

Section 114(g) of title 17, United States Code, is amended--

(1) by amending paragraph (1) to read as follows:

`(1) Except in the case of a transmission to which paragraph (5) applies or a transmission licensed under a statutory license in accordance with subsection (f) of this section, the following shall apply:

`(A) A featured recording artist who performs on a sound recording that has been licensed for public performance by means of a digital audio transmission shall be entitled to receive payments from the copyright owner of the sound recording in accordance with the terms of the artist's contract.

`(B)(i) In a case in which the copyright owner of a sound recording has licensed the sound recording for the public performance of the sound recording by means of a digital audio transmission, the copyright owner shall deposit 1 percent of the receipts from the license with the American Federation of Musicians and American Federation of Television and Radio Artists Intellectual Property Rights Distribution Fund (or any successor entity) (in this subparagraph referred to as the `Fund') to be distributed to nonfeatured performers who have performed on sound recordings. The sound recording copyright owner shall make such deposits for receipts received during the first half of a calendar year by August 15 and for receipts received during the second half of a calendar year by February 15 of the following calendar year.

`(ii) A sound recording copyright owner shall include with deposits under clause (i) information regarding the amount of such deposits attributable to each licensee and, subject to obtaining consent, if necessary, from such licensee, for each sound recording performed by means of a digital audio transmission by such licensee during the applicable time period, and to the extent included in the accounting reports provided by the licensee to the sound recording copyright owner--

`(I) the identity of the artist;

`(II) the International Standard Recording Code of the sound recording;

`(III) the title of the sound recording;

`(IV) the number of times the sound recording was transmitted; and

`(V) the total amount of receipts collected from that licensee.

`(iii) The Fund shall make the distributions described in clause (i) as follows: 50 percent shall be paid to nonfeatured musicians (whether or not members of the American Federation of Musicians) and 50 percent shall be paid to nonfeatured vocalists (whether or not members of the American Federation of Television and Radio Artists). The Fund may, prior to making such distributions, deduct the reasonable costs related to making such distributions.

`(iv) The sound recording copyright owner shall not be required to provide any additional information to the Fund other than what is required under this subparagraph. Sound recording copyright owners shall use reasonable good faith efforts to include in all relevant licenses a requirement to report the information identified in subclauses (I) through (V) of clause (ii). Amounts required under clause (i) that are not paid by the date specified in such clause shall be subject to interest at the rate of 6 percent per annum for each day of nonpayment after the date the payment was due.'; and

(2) by adding at the end the following new paragraph:

`(5) Notwithstanding paragraph (1), to the extent that a license granted by the copyright owner of a sound recording to a terrestrial broadcast station extends to such station's nonsubscription broadcast transmissions otherwise licensable under a statutory license in accordance with subsection (f), the station shall pay to the agent designated to distribute statutory licensing receipts from the licensing of transmissions in accordance with subsection (f), 50 percent of the total royalties that the station is required to pay for such transmissions under the applicable license agreement. That agent shall distribute such payments in proportion to the distributions provided in subparagraphs (B) through (D) of paragraph (2), and such payments shall be the sole payments to which featured and nonfeatured artists are entitled by virtue of such transmissions under the direct license with that station.'.