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

period beginning on the date of the enactment of such

Act and ending on December 31, 2000, or such other date as the parties

may agree. Such rates and terms shall distinguish among the different

types of eligible nonsubscription transmission services and new

subscription services then in operation and shall include a minimum fee

for each such type of service. Any copyright owners of sound recordings

or any entities performing sound recordings affected by this paragraph

may submit to the Librarian of Congress licenses covering such eligible

nonsubscription transmissions and new subscription services 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 during the period beginning on the

date of the enactment of the Digital Millennium Copyright Act and ending

on December 31, 2000, or such other date as the parties may agree. Such

rates and terms shall distinguish among the different types of eligible

nonsubscription transmission services then in operation and shall

include a minimum fee for each such type of service, such differences to

be based on criteria including, but not limited to, the quantity and

nature of the use of sound recordings and the degree to which use of the

service may substitute for or may promote the purchase of phonorecords

by consumers. In establishing rates and terms for transmissions by

eligible nonsubscription services and new subscription services, the

copyright arbitration royalty panel shall establish rates and terms that

most clearly represent the rates and terms that would have been

negotiated in the marketplace between a willing buyer and a willing

seller. In determining such rates and terms, the copyright arbitration

royalty panel shall base its decision on economic, competitive and

programming information presented by the parties, including-

(i) whether use of the service may substitute for or may promote the

sales of phonorecords or otherwise may interfere with or may enhance the

sound recording copyright owner's other streams of revenue from its

sound recordings; and

(ii) the relative roles of the copyright owner and the transmitting

entity in the copyrighted work and the service made available to the

public with respect to relative creative contribution, technological

contribution, capital in-vestment, cost, and risk.

In establishing such rates and terms, the copyright arbitration royalty

panel may consider the rates and terms for comparable types of digital

audio transmission services and comparable circumstances under voluntary

license agreements negotiated under 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 or any eligible nonsubscription service or

new subscription service indicating that a new type of eligible

nonsubscription service or new subscription service on which sound

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

(II) in the first week of January 2000, and at 2-year intervals

thereafter, except to the extent that different years for the repeating

of such proceedings may be determined in accordance with subparagraph

(A).

(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); or

(II) on July 1, 2000, and at 2-year intervals thereafter, except to the

extent that different years for the repeating of such proceedings may be

determined in accordance with subparagraph (A).

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

accordance with section 802.

(3) License agreements voluntarily negotiated at any time between 1 or

more copyright owners of sound recordings and 1 or more entities

performing sound recordings shall be given effect in lieu of any

determination by a copyright arbitration royalty panel or decision by

the Librarian of Congress.

(4)(A) The Librarian of Congress shall also establish requirements by

which copyright owners may receive reasonable notice of the use of their

sound recordings under this section, and under which records of such use

shall be kept and made available by entities performing sound

recordings.

(B) Any person who wishes to perform a sound recording publicly by means

of a transmission eligible for statutory licensing under this subsection

may do so without infringing the exclusive right of the copyright owner

of the sound recording-

(i) by complying with such notice requirements as the Librarian of

Congress shall prescribe by regulation and by paying royalty fees in

accordance with this subsection; or

(ii) if such royalty fees have not been set, by agreeing to pay such

royalty fees as shall be determined in accordance with this subsection.

(C) Any royalty payments in arrears shall be made on or before the

twentieth day of the month next succeeding the month in which the

royalty fees are set.

(g) Proceeds From Licensing of Transmissions.-

(1) Except in the case of a transmission licensed under a statutory

license in accordance with subsection (f) of this section-

(A) a featured recording artist who performs on a sound recording that

has been licensed for a 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; and

(B) a nonfeatured recording artist who performs on a sound recording

that has been licensed for a transmission shall be entitled to receive

payments from the copyright owner of the sound recording in accordance

with the terms of the nonfeatured recording artist's applicable contract

or other applicable agreement.

(2) The copyright owner of the exclusive right under section 106(6) of

this title to publicly perform a sound recording by means of a digital

audio transmission shall allocate to recording artists in the following

manner its receipts from the statutory licensing of transmission

performances of the sound recording in accordance with subsection (f) of

this section:

(A) 21/2 percent of the receipts shall be deposited in an escrow account

managed by an independent administrator jointly appointed by copyright

owners of sound recordings and the American Federation of Musicians (or

any successor entity) to be distributed to nonfeatured musicians

(whether or not members of the American Federation of Musicians) who

have performed on sound recordings.

(B) 21/2 percent of the receipts shall be deposited in an escrow account

managed by an independent administrator jointly appointed by copyright

owners of sound recordings and the American Federation of Television and

Radio Artists (or any successor entity) to be distributed to nonfeatured

vocalists (whether or not members of the American Federation of

Television and Radio Artists) who have performed on sound recordings.

(C) 45 percent of the receipts shall be allocated, on a per sound

recording basis, to the recording artist or artists featured on such

sound recording (or the persons conveying rights in the artists'

performance in the sound recordings).

(h) Licensing to Affiliates.-

(1) If the copyright owner of a sound recording licenses an affiliated

entity the right to publicly perform a sound recording by means of a

digital audio transmission under section 106(6), the copyright owner

shall make the licensed sound recording available under section 106(6)

on no less favorable terms and conditions to all bona fide entities that

offer similar services, except that, if there are material differences

in the scope of the requested license with respect to the type of

service, the particular sound recordings licensed, the frequency of use,

the number of subscribers served, or the duration, then the copyright

owner may establish different terms and conditions for such other

services.

(2) The limitation set forth in paragraph (1) of this subsection shall

not apply in the case where the copyright owner of a sound recording

licenses-

(A) an interactive service; or

(B) an entity to perform publicly up to 45 seconds of the sound

recording and the sole purpose of the performance is to promote the

distribution or performance of that sound recording.

(i) No Effect on Royalties for Underlying Works. License fees payable

for the public performance of sound recordings under section 106(6)

shall not be taken into account in any administrative, judicial, or

other governmental proceeding to set or adjust the royalties payable to

copyright owners of musical works for the public performance of their

works. It is the intent of Congress that royalties payable to copyright

owners of musical works for the public performance of their works shall

not be diminished in any respect as a result of the rights granted by

section 106(6).

(j) Definitions. As used in this section, the following terms have the

following meanings:

(l) An "affiliated entity" is an entity engaging in digital audio

transmissions covered by section 106(6), other than an interactive

service, in which the licensor has any direct or indirect partnership or

any ownership interest amounting to 5 percent or more of the outstanding

voting or non-voting stock.

(2) An "archived program" is a predetermined program that is available

repeatedly on the demand of the transmission recipient and that is

performed in the same order from the beginning, except that an archived

program shall not include a re-corded event or broadcast transmission

that makes no more than an incidental use of sound recordings, as long

as such recorded event or broadcast transmission does not contain an

entire sound recording or feature a particular sound recording.

(3) A "broadcast" transmission is a transmission made by a terrestrial

broadcast station licensed as such by the Federal Communications

Commission.

(4) A "continuous program" is a predetermined program that is

continuously performed in the same order and that is accessed at a point

in the program that is beyond the control of the transmission recipient.

(5) A "digital audio transmission" is a digital transmission as defined

in section 101, that embodies the transmission of a sound recording.

This term does not include the transmission of any audiovisual work.

(6) An "eligible nonsubscription transmission" is a noninteractive

nonsubscription digital audio transmission not exempt under subsection

(d)(1) that is made as part of a service that provides audio programming

consisting, in whole or in part, of performances of sound recordings,

including retransmissions of broadcast transmissions, if the primary

purpose of the service is to provide to the public such audio or other

entertainment programming, and the primary purpose of the service is not

to sell, advertise, or promote particular products or services other

than sound recordings, live concerts, or other music-related events.

(7) An "interactive service" is one that enables a member of the public

to receive a transmission of a program specially created for the

recipient, or on request, a transmission of a particular sound

recording, whether or not as part of a program, which is selected by or

on behalf of the recipient. The ability of individuals to request that

particular sound recordings be performed for reception by the public at

large, or in the case of a subscription service, by all subscribers of

the service, does not make a service interactive, if the programming on

each channel of the service does not substantially consist of sound

recordings that are performed within 1 hour of the request or at a time

designated by either the transmitting entity or the individual making

such request. If an entity offers