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

both interactive and noninteractive

services (either concurrently or at different times), the noninteractive

component shall not be treated as part of an interactive service.

(8) A "new subscription service" is a service that performs sound

recordings by means of noninteractive subscription digital audio

transmissions and that is not a preexisting subscription service or a

preexisting satellite digital audio radio service.

(9) A "nonsubscription" transmission is any transmission that is not a

subscription transmission.

(10) A "preexisting satellite digital audio radio service" is a

subscription satellite digital audio radio service provided pursuant to

a satellite digital audio radio service license issued by the Federal

Communications Commission on or before July 31, 1998, and any renewal of

such license to the extent of the scope of the original license, and may

include a limited number of sample channels representative of the

subscription service that are made available on a nonsubscription basis

in order to promote the subscription service.

(11) A "preexisting subscription service" is a service that performs

sound recordings by means of noninteractive audio-only subscription

digital audio transmissions, which was in existence and was making such

transmissions to the public for a fee on or before July 31, 1998, and

may include a limited number of sample channels representative of the

subscription service that are made available on a nonsubscription basis

in order to promote the subscription service.

(12) A "retransmission" is a further transmission of an initial

transmission, and includes any further retransmission of the same

transmission. Except as provided in this section, a transmission

qualifies as a "retransmission" only if it is simultaneous with the

initial transmission. Nothing in this definition shall be construed to

exempt a transmission that fails to satisfy a separate element required

to qualify for an exemption under section 114(d)(1).

(13) The "sound recording performance complement" is the transmission

during any 3-hour period, on a particular channel used by a transmitting

entity, of no more than-

(A) 3 different selections of sound recordings from any one phonorecord

lawfully distributed for public performance or sale in the United

States, if no more than 2 such selections are transmitted consecutively;

or

(B) 4 different selections of sound recordings-

(i) by the same featured recording artist; or

(ii) from any set or compilation of phonorecords lawfully distributed

together as a unit for public performance or sale in the United States,

if no more than three such selections are transmitted consecutively:

Provided, That the transmission of selections in excess of the

numerical limits provided for in clauses (A) and (B) from multiple

phonorecords shall nonetheless qualify as a sound recording performance

complement if the programming of the multiple phonorecords was not

willfully intended to avoid the numerical limitations prescribed in such

clauses.

(14) A "subscription" transmission is a transmission that is controlled

and limited to particular recipients, and for which consideration is

required to be paid or otherwise given by or on behalf of the recipient

to receive the transmission or a package of transmissions including the

transmission.

(15) A "transmission" is either an initial transmission or a

retransmission.

Section 115. Scope of exclusive rights in nondramatic musical works:

Compulsory license for making and distributing phonorecords [49]

In the case of nondramatic musical works, the exclusive rights provided

by clauses (1) and (3) of section 106, to make and to distribute

phonorecords of such works, are subject to compulsory licensing under

the conditions specified by this section.

(a) Availability and Scope of Compulsory License.-

(1) When phonorecords of a nondramatic musical work have been

distributed to the public in the United States under the authority of

the copyright owner, any other person, including those who make

phonorecords or digital phonorecord deliveries, may, by complying with

the provisions of this section, obtain a compulsory license to make and

distribute phonorecords of the work. A person may obtain a compulsory

license only if his or her primary purpose in making phonorecords is to

distribute them to the public for private use, including by means of a

digital phonorecord delivery. A person may not obtain a compulsory

license for use of the work in the making of phonorecords duplicating a

sound recording fixed by another, unless:

(i) such sound recording was fixed lawfully; and

(ii) the making of the phonorecords was authorized by the owner of

copyright in the sound recording or, if the sound recording was fixed

before February 15, 1972, by any person who fixed the sound recording

pursuant to an express license from the owner of the copyright in the

musical work or pursuant to a valid compulsory license for use of such

work in a sound recording.

(2) A compulsory license includes the privilege of making a musical

arrangement of the work to the extent necessary to conform it to the

style or manner of interpretation of the performance involved, but the

arrangement shall not change the basic melody or fundamental character

of the work, and shall not be subject to protection as a derivative work

under this title, except with the express consent of the copyright

owner.

(b) Notice of Intention to Obtain Compulsory License.-

(1) Any person who wishes to obtain a compulsory license under this

section shall, before or within thirty days after making, and before

distributing any phonorecords of the work, serve notice of intention to

do so on the copyright owner. If the registration or other public

records of the Copyright Office do not identify the copyright owner and

include an address at which notice can be served, it shall be sufficient

to file the notice of intention in the Copyright Office. The notice

shall comply, in form, content, and manner of service, with requirements

that the Register of Copyrights shall prescribe by regulation.

(2) Failure to serve or file the notice required by clause (1)

forecloses the possibility of a compulsory license and, in the absence

of a negotiated license, renders the making and distribution of

phonorecords actionable as acts of infringement under section 501 and

fully subject to the remedies provided by sections 502 through 506 and

509.

(c) Royalty Payable Under Compulsory License. [50]-

(1) To be entitled to receive royalties under a compulsory license, the

copyright owner must be identified in the registration or other public

records of the Copyright Office. The owner is entitled to royalties for

phonorecords made and distributed after being so identified, but is not

entitled to recover for any phonorecords previously made and

distributed.

(2) Except as provided by clause (1), the royalty under a compulsory

license shall be payable for every phonorecord made and distributed in

accordance with the license. For this purpose, and other than as

provided in paragraph (3), a phonorecord is considered "distributed" if

the person exercising the compulsory license has voluntarily and

permanently parted with its possession. With respect to each work

embodied in the phonorecord, the royalty shall be either two and three-

fourths cents, or one-half of one cent per minute of playing time or

fraction thereof, whichever amount is larger. [51]

(3)(A) A compulsory license under this section includes the right of the

compulsory licensee to distribute or authorize the distribution of a

phonorecord of a nondramatic musical work by means of a digital

transmission which constitutes a digital phonorecord delivery,

regardless of whether the digital transmission is also a public

performance of the sound recording under section 106(6) of this title or

of any nondramatic musical work embodied therein under section 106(4) of

this title. For every digital phonorecord delivery by or under the

authority of the compulsory licensee-

(i) on or before December 31, 1997, the royalty payable by the

compulsory licensee shall be the royalty prescribed under paragraph (2)

and chapter 8 of this title; and

(ii) on or after January 1, 1998, the royalty payable by the compulsory

licensee shall be the royalty prescribed under subparagraphs (B) through

(F) and chapter 8 of this title.

(B) Notwithstanding any provision of the antitrust laws, any copyright

owners of nondramatic musical works and any persons entitled to obtain a

compulsory license under subsection (a)(1) may negotiate and agree upon

the terms and rates of royalty payments under this paragraph and the

proportionate division of fees paid among copyright owners, and may

designate common agents to negotiate, agree to, pay or receive such

royalty payments. Such authority to negotiate the terms and rates of

royalty payments includes, but is not limited to, the authority to

negotiate the year during which the royalty rates prescribed under

subparagraphs (B) through (F) and chapter 8 of this title shall next be

determined.

(C) During the period of June 30, 1996, through December 31, 1996, 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 the activities specified by subparagraph (A) during the period

beginning January 1, 1998, and ending on the effective date of any new

terms and rates established pursuant to subparagraph (C), (D) or (F), or

such other date (regarding digital phonorecord deliveries) as the

parties may agree. Such terms and rates shall distinguish between (i)

digital phonorecord deliveries where the reproduction or distribution of

a phonorecord is incidental to the transmission which constitutes the

digital phonorecord delivery, and (ii) digital phonorecord deliveries in

general. Any copyright owners of nondramatic musical works and any

persons entitled to obtain a compulsory license under subsection (a)(1)

may submit to the Librarian of Congress licenses covering such

activities. The parties to each negotiation proceeding shall bear their

own costs.

(D) In the absence of license agreements negotiated under subparagraphs

(B) and (C), 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 a schedule of

rates and terms which, subject to subparagraph (E), shall be binding on

all copyright owners of nondramatic musical works and persons entitled

to obtain a compulsory license under subsection (a)(1) during the period

beginning January 1, 1998, and ending on the effective date of any new

terms and rates established pursuant to subparagraph (C), (D) or (F), or

such other date (regarding digital phonorecord deliveries) as may be

determined pursuant to subparagraphs (B) and (C). Such terms and rates

shall distinguish between (i) digital phonorecord deliveries where the

reproduction or distribution of a phonorecord is incidental to the

transmission which constitutes the digital phonorecord delivery, and

(ii) digital phonorecord deliveries in general. In addition to the

objectives set forth in section 801(b)(1), in establishing such rates

and terms, the copyright arbitration royalty panel may consider rates

and terms under voluntary license agreements negotiated as provided in

subparagraphs (B) and (C). The royalty rates payable for a compulsory

license for a digital phonorecord delivery under this section shall be

established de novo and no precedential effect shall be given to the

amount of the royalty payable by a compulsory licensee for digital

phonorecord deliveries on or before December 31, 1997. The Librarian of

Congress shall also establish requirements by which copyright owners may

receive reasonable notice of the use of their works under this section,

and under which records of such use shall be kept and made available by

persons making digital phonorecord deliveries.

(E)(i) License agreements voluntarily negotiated at any time between one

or more copyright owners of nondramatic musical works and one or more

persons entitled to obtain a compulsory license under subsection (a)(1)

shall be given effect in lieu of any determination by the Librarian of

Congress. Subject to clause (ii), the royalty rates determined pursuant

to subparagraph (C), (D) or (F) shall be given effect in lieu of any

contrary royalty rates specified in a contract pursuant to which a

recording artist who is the author of a nondramatic musical work grants

a license under that person's exclusive rights in the musical work under

paragraphs (1) and (3) of section 106 or commits another person to grant

a