U.S.A. Copyright Law, Library of Congress. Copyright Office [reading diary TXT] 📗

the authority of the copyright owner or the copyright owner

authorizes the transmitting entity to transmit the sound recording, and

the transmitting entity makes the transmission from a phonorecord

lawfully made under the authority of the copyright owner, except that

the requirement of this clause shall not apply to a retransmission of a

broadcast transmission by a transmitting entity that does not have the

right or ability to control the programming of the broadcast

transmission, unless the transmitting entity is given notice in writing

by the copyright owner of the sound recording that the broadcast station

makes broadcast transmissions that regularly violate such requirement;

(viii) the transmitting entity accommodates and does not interfere with

the transmission of technical measures that are widely used by sound

recording copyright owners to identify or protect copyrighted works, and

that are technically feasible of being transmitted by the transmitting

entity without imposing substantial costs on the transmitting entity or

resulting in perceptible aural or visual degradation of the digital

signal, except that the requirement of this clause shall not apply to a

satellite digital audio service that is in operation, or that is

licensed under the authority of the Federal Communications Commission,

on or before July 31, 1998, to the extent that such service has

designed, developed, or made commitments to procure equipment or

technology that is not compatible with such technical measures before

such technical measures are widely adopted by sound recording copyright

owners; and

(ix) the transmitting entity identifies in textual data the sound

recording during, but not before, the time it is performed, including

the title of the sound recording, the title of the phonorecord embodying

such sound recording, if any, and the featured recording artist, in a

manner to permit it to be displayed to the transmission recipient by the

device or technology intended for receiving the service provided by the

transmitting entity, except that the obligation in this clause shall not

take effect until 1 year after the date of the enactment of the Digital

Millennium Copyright Act and shall not apply in the case of a

retransmission of a broadcast transmission by a transmitting entity that

does not have the right or ability to control the programming of the

broadcast transmission, or in the case in which devices or technology

intended for receiving the service provided by the transmitting entity

that have the capability to display such textual data are not common in

the marketplace.

(3) Licenses for transmissions by interactive services.-

(A) No interactive service shall be granted an exclusive license under

section 106(6) for the performance of a sound recording publicly by

means of digital audio transmission for a period in excess of 12 months,

except that with respect to an exclusive license granted to an

interactive service by a licensor that holds the copyright to 1,000 or

fewer sound recordings, the period of such license shall not exceed 24

months: Provided, however, That the grantee of such exclusive license

shall be ineligible to receive another exclusive license for the

performance of that sound recording for a period of 13 months from the

expiration of the prior exclusive license.

(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 recording.

(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 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.

(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 copyright 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-

(i) the exclusive right to publicly perform a musical work, including by

means of a digital audio transmission, under section 106(4);

(ii) the exclusive rights in a sound recording or the musical work

embodied therein under sections 106(1), 106(2) and 106(3); or

(iii) any other rights under any other clause of section 106, or

remedies available under this title as such rights or remedies exist

either before or after the date of enactment of the Digital Performance

Right in Sound Recordings Act of 1995.

(C) Any limitations in this section on the exclusive right under section

106(6) apply only to the exclusive right under section 106(6) and not to

any other exclusive rights under section 106. Nothing in this section

shall be construed to annul, limit, impair or otherwise affect in any

way the ability of the owner of a copyright in a sound recording to

exercise the rights under sections 106(1), 106(2) and 106(3), or to

obtain the remedies available under this title pursuant to such rights,

as such rights and remedies exist either before or after the date of

enactment of the Digital Performance Right in Sound Recordings Act of

1995.

(e) Authority for Negotiations.-

(1) Notwithstanding any provision of the antitrust laws, in negotiating

statutory licenses in accordance with subsection (f), any copyright

owners of sound recordings and any entities performing sound recordings

affected by this section may negotiate and agree upon the royalty rates

and license terms and conditions for the performance of such sound

recordings and the proportionate division of fees paid among copyright

owners, and may designate common agents on a nonexclusive basis to

negotiate, agree to, pay, or receive payments.

(2) For licenses granted under section 106(6), other than statutory

licenses, such as for performances by interactive services or

performances that exceed the sound recording performance complement

(A) copyright owners of sound recordings affected by this section may

designate common agents to act on their behalf to grant licenses and

receive and remit royalty payments: Provided, That each copyright

owner shall establish the royalty rates and material license terms and

conditions unilaterally, that is, not in agreement, combination, or

concert with other copyright owners of sound recordings; and

(B) entities performing sound recordings affected by this section may

designate common agents to act on their behalf to obtain licenses and

collect and pay royalty fees: Provided, That each entity performing

sound recordings shall determine the royalty rates and material license

terms and conditions unilaterally, that is, not in agreement,

combination, or concert with other entities performing sound recordings.

(f) Licenses for Certain Nonexempt Transmissions. [47]

(1)(A) [48] No later than 30 days after the enactment of the Digital

Performance Right in Sound Recordings Act of 1995, 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 reasonable terms and rates of royalty payments for

subscription transmissions by preexisting subscription services and

transmissions by preexisting satellite digital audio radio services

specified by subsection (d)(2) of this section during the period

beginning on the effective date of such Act and ending on December 31,

2001, or, if a copyright arbitration royalty panel is convened, ending

30 days after the Librarian issues and publishes in the Federal Register

an order adopting the determination of the copyright arbitration royalty

panel or an order setting the terms and rates (if the Librarian rejects

the panel's determination). Such terms and rates shall distinguish among

the different types of digital audio transmission services then in

operation. Any copyright owners of sound recordings, preexisting

subscription services, or preexisting satellite digital audio radio

services may submit to the Librarian of Congress licenses covering such

subscription transmissions with respect to such sound recordings. The

parties to each negotiation proceeding shall bear their own costs.

(B) In the absence of license agreements negotiated under subparagraph

(A), during the 60-day period commencing 6 months after publication of

the notice specified in subparagraph (A), and upon the filing of a

petition in accordance with section 803(a)(1), the Librarian of Congress

shall, pursuant to chapter 8, convene a copyright arbitration royalty

panel to determine and publish in the Federal Register a schedule of

rates and terms which, subject to paragraph (3), shall be binding on all

copyright owners of sound recordings and entities performing sound

recordings affected by this paragraph. In establishing rates and terms

for preexisting subscription services and preexisting satellite digital

audio radio services, in addition to the objectives set forth in section

801(b)(1), the copyright arbitration royalty panel may consider the

rates and terms for comparable types of subscription digital audio

transmission services and comparable circumstances under voluntary

license agreements negotiated as provided in subparagraph (A).

(C)(i) Publication of a notice of the initiation of voluntary

negotiation proceedings as specified in subparagraph (A) shall be

repeated, in accordance with regulations that the Librarian of Congress

shall prescribe-

(I) no later than 30 days after a petition is filed by any copyright

owners of sound recordings, any preexisting subscription services, or

any preexisting satellite digital audio radio services indicating that a

new type of subscription digital audio transmission service on which

sound recordings are performed is or is about to become operational; and

(II) in the first week of January 2001, and at 5-year intervals

thereafter.

(ii) The procedures specified in subparagraph (B) shall be repeated, in

accordance with regulations that the Librarian of Congress shall

prescribe, upon filing of a petition in accordance with section 803(a)

(1) during a 60-day period commencing-

(I) 6 months after publication of a notice of the initiation of

voluntary negotiation proceedings under subparagraph (A) pursuant to a

petition under clause (i)(I) of this subparagraph; or

(II) on July 1, 2001, and at 5-year intervals thereafter.

(iii) The procedures specified in subparagraph (B) shall be concluded in

accordance with section 802.

(2)(A) No later than 30 days after the date of the enactment of the

Digital Millennium Copyright Act, 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

reasonable terms and rates of royalty payments for public performances

of sound recordings by means of eligible nonsubscription transmissions

and transmissions by new subscription services specified by subsection

(d)(2) during the