From: no...@senate.gov
Subject: 1998CRS11794 COPYRIGHT TERM EXTENSION ACT OF 1998
Date: 1998/10/08
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[Congressional Record: October 7, 1998 (Senate)]
[Page S11794-S11796]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr07oc98-169]
COPYRIGHT TERM EXTENSION ACT OF 1998
______
HATCH AMENDMENT NO. 3782
Mr. LOTT (for Mr. Hatch) proposed an amendment to the bill (S. 505)
to amend the provisions of title 17, United States Code, with respect
to the duration of copyright, and for other purposes; as follows:
Strike all after the enacting clause and insert the
following:
TITLE I--COPYRIGHT TERM EXTENSION
SEC. 101. SHORT TITLE.
This title may be referred to as the ``Sonny Bono Copyright
Term Extension Act''.
SEC. 102. DURATION OF COPYRIGHT PROVISIONS.
(a) Preemption With Respect to Other Laws.--Section 301(c)
of title 17, United States Code, is amended by striking
``February 15, 2047'' each place it appears and inserting
``February 15, 2067''.
(b) Duration of Copyright: Works Created on or After
January 1, 1978.--Section 302 of title 17, United States
Code, is amended--
(1) in subsection (a) by striking ``fifty'' and inserting
``70'';
(2) in subsection (b) by striking ``fifty'' and inserting
``70'';
(3) in subsection (c) in the first sentence--
(A) by striking ``seventy-five'' and inserting ``95''; and
(B) by striking ``one hundred'' and inserting ``120''; and
(4) in subsection (e) in the first sentence--
(A) by striking ``seventy-five'' and inserting ``95'';
(B) by striking ``one hundred'' and inserting ``120''; and
(C) by striking ``fifty'' each place it appears and
inserting ``70''.
(c) Duration of Copyright: Works Created but Not Published
or Copyrighted Before January 1, 1978.--Section 303 of title
17, United States Code, is amended in the second sentence by
striking ``December 31, 2027'' and inserting ``December 31,
2047''.
(d) Duration of Copyright: Subsisting Copyrights.--
(1) In general.--Section 304 of title 17, United States
Code, is amended--
(A) in subsection (a)--
(i) in paragraph (1)--
(I) in subparagraph (B) by striking ``47'' and inserting
``67''; and
(II) in subparagraph (C) by striking ``47'' and inserting
``67'';
(ii) in paragraph (2)--
(I) in subparagraph (A) by striking ``47'' and inserting
``67''; and
(II) in subparagraph (B) by striking ``47'' and inserting
``67''; and
(iii) in paragraph (3)--
(I) in subparagraph (A)(i) by striking ``47'' and inserting
``67''; and
(II) in subparagraph (B) by striking ``47'' and inserting
``67'';
(B) by amending subsection (b) to read as follows:
``(b) Copyrights in Their Renewal Term at the Time of the
Effective Date of the Sonny Bono Copyright Term Extension
Act.--Any copyright still in its renewal term at the time
that the Sonny Bono Copyright Term Extension Act becomes
effective shall have a copyright term of 95 years from the
date copyright was originally secured.'';
(C) in subsection (c)(4)(A) in the first sentence by
inserting ``or, in the case of a termination under subsection
(d), within the five-year period specified by subsection
(d)(2),'' after ``specified by clause (3) of this
subsection,''; and
(D) by adding at the end the following new subsection:
``(d) Termination Rights Provided in Subsection (c) Which
Have Expired on or Before the Effective Date of the Sonny
Bono Copyright Term Extension Act.--In the case of any
copyright other than a work made for hire, subsisting in its
renewal term on the effective date of the Sonny Bono
Copyright Term Extension Act for which the termination right
provided in subsection (c) has expired by such date, where
the author or owner of the termination right has not
previously exercised such termination right, the exclusive or
nonexclusive grant of a transfer or license of the renewal
copyright or any right under it, executed before January 1,
1978, by any of the persons designated in subsection
(a)(1)(C) of this section, other than by will, is subject to
termination under the following conditions:
``(1) The conditions specified in subsection (c)(1), (2),
(4), (5), and (6) of this section apply to terminations of
the last 20 years of copyright term as provided by the
amendments made by the Sonny Bono Copyright Term Extension
Act.
``(2) Termination of the grant may be effected at any time
during a period of 5 years beginning at the end of 75 years
from the date copyright was originally secured.''.
(2) Copyright amendments act of 1992.--Section 102 of the
Copyright Amendments Act of 1992 (Public Law 102-307; 106
Stat. 266; 17 U.S.C. 304 note) is amended--
(A) in subsection (c)--
(i) by striking ``47'' and inserting ``67'';
(ii) by striking ``(as amended by subsection (a) of this
section)''; and
(iii) by striking ``effective date of this section'' each
place it appears and inserting ``effective date of the Sonny
Bono Copyright Term Extension Act''; and
(B) in subsection (g)(2) in the second sentence by
inserting before the period the following: ``, except each
reference to forty-seven years in such provisions shall be
deemed to be 67 years''.
SEC. 103. TERMINATION OF TRANSFERS AND LICENSES COVERING
EXTENDED RENEWAL TERM.
Sections 203(a)(2) and 304(c)(2) of title 17, United States
Code, are each amended--
(1) by striking ``by his widow or her widower and his or
her children or grandchildren''; and
(2) by inserting after subparagraph (C) the following:
``(D) In the event that the author's widow or widower,
children, and grandchildren are not living, the author's
executor, administrator, personal representative, or trustee
shall own the author's entire termination interest.''.
SEC. 104. REPRODUCTION BY LIBRARIES AND ARCHIVES.
Section 108 of title 17, United States Code, is amended--
(1) by redesignating subsection (h) as subsection (i); and
(2) by inserting after subsection (g) the following:
``(h)(1) For purposes of this section, during the last 20
years of any term of copyright of a published work, a library
or archives, including a nonprofit educational institution
that functions as such, may reproduce, distribute, display,
or perform in facsimile or digital form a copy or phonorecord
of such work, or portions thereof, for purposes of
preservation, scholarship, or research, if such library or
archives has first determined, on the basis of a reasonable
investigation, that none of the conditions set forth in
subparagraphs (A), (B), and (C) of paragraph (2) apply.
``(2) No reproduction, distribution, display, or
performance is authorized under this subsection if--
``(A) the work is subject to normal commercial
exploitation;
``(B) a copy or phonorecord of the work can be obtained at
a reasonable price; or
``(C) the copyright owner or its agent provides notice
pursuant to regulations promulgated by the Register of
Copyrights that either of the conditions set forth in
subparagraphs (A) and (B) applies.
``(3) The exemption provided in this subsection does not
apply to any subsequent uses by users other than such library
or archives.''.
SEC. 105. VOLUNTARY NEGOTIATION REGARDING DIVISION OF
ROYALTIES.
It is the sense of the Congress that copyright owners of
audiovisual works for which the term of copyright protection
is extended by the amendments made by this title, and the
screenwriters, directors, and performers of those audiovisual
works, should negotiate in good faith in an effort to reach a
voluntary agreement or voluntary agreements with respect to
the establishment of a fund or other mechanism for the amount
of remuneration to be divided among the parties for the
exploitation of those audiovisual works.
SEC. 106. EFFECTIVE DATE.
This title and the amendments made by this title shall take
effect on the date of the enactment of this Act.
[[Page S11795]]
TITLE II--MUSIC LICENSING EXEMPTION FOR FOOD SERVICE OR DRINKING
ESTABLISHMENTS
SEC. 201. SHORT TITLE.
This title may be cited as the ``Fairness In Music
Licensing Act of 1998.''
SEC. 202. EXEMPTIONS.
(a) Exemptions for Certain Establishments.--Section 110 of
title 17, United States Code is amended--
(1) in paragraph (5)--
(A) by striking ``(5)'' and inserting ``(5)(A) except as
provided in subparagraph (B),''; and
(B) by adding at the end the following:
``(B) communication by an establishment of a transmission
or retransmission embodying a performance or display of a
nondramatic musical work intended to be received by the
general public, originated by a radio or television broadcast
station licensed as such by the Federal Communications
Commission, or, if an audiovisual transmission, by a cable
system or satellite carrier, if--
``(i) in the case of an establishment other than a food
service or drinking establishment, either the establishment
in which the communication occurs has less than 2000 gross
square feet of space (excluding space used for customer
parking and for no other purpose), or the establishment in
which the communication occurs has 2000 or more gross square
feet of space (excluding space used for customer parking and
for no other purpose) and--
``(I) if the performance is by audio means only, the
performance is communicated by means of a total of not more
than 6 loudspeakers, of which not more than 4 loudspeakers
are located in any 1 room or adjoining outdoor space; or
``(II) if the performance or display is by audiovisual
means, any visual portion of the performance or display is
communicated by means of a total of not more than 4
audiovisual devices, of which not more than one audiovisual
device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches, and
any audio portion of the performance or display is
communicated by means of a total of not more than 6
loudspeakers, of which not more than 4 loudspeakers are
located in any 1 room or adjoining outdoor space;
``(ii) in the case of a food service or drinking
establishment, either the establishment in which the
communication occurs has less than 3750 gross square feet of
space (excluding space used for customer parking and for no
other purpose), or the establishment in which the
communication occurs has 3750 gross square feet of space or
more (excluding space used for customer parking and for no
other purpose) and--
``(I) if the performance is by audio means only, the
performance is communicated by means of a total of not more
than 6 loudspeakers, of which not more than 4 loudspeakers
are located in any 1 room or adjoining outdoor space; or
``(II) if the performance or display is by audiovisual
means, any visual portion of the performance or display is
communicated by means of a total of not more than 4
audiovisual devices, of which not more than one audiovisual
device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches, and
any audio portion of the performance or display is
communicated by means of a total of not more than 6
loudspeakers, of which not more than 4 loudspeakers are
located in any 1 room or adjoining outdoor space;
``(iii) no direct charge is made to see or hear the
transmission or retransmission;
``(iv) the transmission or retransmission is not further
transmitted beyond the establishment where it is received;
and
``(v) the transmission or retransmission is licensed by the
copyright owner of the work so publicly performed or
displayed;''; and
(2) by adding after paragraph (10) the following:
``The exemptions provided under paragraph (5) shall not be
taken into account in any administrative, judicial, or other
governmental proceeding to set or adjust the royalties
payable to copyright owners for the public performance or
display of their works. Royalties payable to copyright owners
for any public performance or display of their works other
than such performances or displays as are exempted under
paragraph (5) shall not be diminished in any respect as a
result of such exemption''.
(b) Exemption Relating to Promotion.--Section 110(7) of
title 17, United States Code, is amended by inserting ``or of
the audiovisual or other devices utilized in such
performance,'' after ``phonorecords of the work,''.
SEC. 203. LICENSING BY PERFORMING RIGHTS SOCIETIES.
(a) In General.--Chapter 5 of title 17, United States Code,
is amended by adding at the end the following:
``Sec. 512. Determination of reasonable license fees for
individual proprietors
``In the case of any performing rights society subject to a
consent decree which provides for the determination of
reasonable license rates or fees to be charged by the
performing rights society, notwithstanding the provisions of
that consent decree, an individual proprietor who owns or
operates fewer than 7 non-publicly traded establishments in
which nondramatic musical works are performed publicly and
who claims that any license agreement offered by that
performing rights society is unreasonable in its license rate
or fee as to that individual proprietor, shall be entitled to
determination of a reasonable license rate or fee as follows:
``(1) The individual proprietor may commence such
proceeding for determination of a reasonable license rate or
fee by filing an application in the applicable district court
under paragraph (2) that a rate disagreement exists and by
serving a copy of the application on the performing rights
society. Such proceeding shall commence in the applicable
district court within 90 days after the service of such copy,
except that such 90-day requirement shall be subject to the
administrative requirements of the court.
``(2) The proceeding under paragraph (1) shall be held, at
the individual proprietor's election, in the judicial
district of the district court with jurisdiction over the
applicable consent decree or in that place of holding court
of a district court that is the seat of the Federal circuit
(other than the Court of Appeals for the Federal Circuit) in
which the proprietor's establishment is located.
``(3) Such proceeding shall be held before the judge of the
court with jurisdiction over the consent decree governing the
performing rights society. At the discretion of the court,
the proceeding shall be held before a special master or
magistrate judge appointed by such judge. Should that consent
decree provide for the appointment of an advisor or advisors
to the court for any purpose, any such advisor shall be the
special master so named by the court.
``(4) In any such proceeding, the industry rate shall be
presumed to have been reasonable at the time it was agreed to
or determined by the court. Such presumption shall in no way
affect a determination of whether the rate is being correctly
applied to the individual proprietor.
``(5) Pending the completion of such proceeding, the
individual proprietor shall have the right to perform
publicly the copyrighted musical compositions in the
repertoire of the performing rights society by paying an
interim license rate or fee into an interest bearing escrow
account with the clerk of the court, subject to retroactive
adjustment when a final rate or fee has been determined, in
an amount equal to the industry rate, or, in the absence of
an industry rate, the amount of the most recent license rate
or fee agreed to by the parties.
``(6) Any decision rendered in such proceeding by a special
master or magistrate judge named under paragraph (3) shall be
reviewed by the judge of the court with jurisdiction over the
consent decree governing the performing rights society. Such
proceeding, including such review, shall be concluded within
6 months after its commencement.
``(7) Any such final determination shall be binding only as
to the individual proprietor commencing the proceeding, and
shall not be applicable to any other proprietor or any other
performing rights society, and the performing rights society
shall be relieved of any obligation of nondiscrimination
among similarly situated music users that may be imposed by
the consent decree governing its operations.
``(8) An individual proprietor may not bring more than one
proceeding provided for in this section for the determination
of a reasonable license rate or fee under any license
agreement with respect to any one performing rights society.
``(9) For purposes of this section, the term `industry
rate' means the license fee a performing rights society has
agreed to with, or which has been determined by the court
for, a significant segment of the music user industry to
which the individual proprietor belongs.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 5 of title 17, United States Code, is
amended by adding after the item relating to section 511 the
following:
``512.Determination of reasonable license fees for individual
proprietors.''.
SEC. 204. PENALTIES.
Section 504 of title 17, United States Code, is amended by
adding at the end the following:
``(d) Additional Damages in Certain Cases.--In any case in
which the court finds that a defendant proprietor of an
establishment who claims as a defense that its activities
were exempt under section 110(5) did not have reasonable
grounds to believe that its use of a copyrighted work was
exempt under such section, the plaintiff shall be entitled
to, in addition to any award of damages under this section,
an additional award of two times the amount of the license
fee that the proprietor of the establishment concerned should
have paid the plaintiff for such use during the preceding
period of up to 3 years.''.
SEC. 205. DEFINITIONS.
Section 101 of title 17, United States Code, is amended--
(1) by inserting after the definition of ``display'' the
following:
``An `establishment' is a store, shop, or any similar place
of business open to the general public for the primary
purpose of selling goods or services in which the majority of
the gross square feet of space that is nonresidential is used
for that purpose, and in which nondramatic musical works are
performed publicly.
``A `food service or drinking establishment' is a
restaurant, inn, bar, tavern, or any other similar place of
business in which the public or patrons assemble for the
primary purpose of being served food or drink, in which the
majority of the gross square feet of space
[[Page S11796]]
that is nonresidential is used for that purpose, and in which
nondramatic musical works are performed publicly.'';
(2) by inserting after the definition of ``fixed'' the
following:
``The `gross square feet of space' of an establishment
means the entire interior space of that establishment, and
any adjoining outdoor space used to serve patrons, whether on
a seasonal basis or otherwise.'';
(3) by inserting after the definition of ``perform'' the
following:
``A `performing rights society' is an association,
corporation, or other entity that licenses the public
performance of nondramatic musical works on behalf of
copyright owners of such works, such as the American Society
of Composers, Authors and Publishers (ASCAP), Broadcast
Music, Inc. (BMI), and SESAC, Inc.''; and
(4) by inserting after the definition of ``pictorial,
graphic and sculptural works'' the following:
``A `proprietor' is an individual, corporation,
partnership, or other entity, as the case may be, that owns
an establishment, or a food service or drinking
establishment, except that no owner or operator of a radio or
television station licensed by the Federal Communications
Commission, cable system or satellite carrier, cable or
satellite carrier service or programmer, provider of online
services or network access or the operator of facilities
therefor, telecommunications company, or any other such audio
or audiovisual service or programmer now known or as may be
developed in the future, commercial subscription music
service, or owner or operator of any other transmission
service, shall under any circumstances be deemed to be a
proprietor.''.
SEC. 206. CONSTRUCTION OF TITLE.
Except as otherwise provided in this title, nothing in this
title shall be construed to relieve any performing rights
society of any obligation under any State or local statute,
ordinance, or law, or consent decree or other court order
governing its operation, as such statute, ordinance, law,
decree, or order is in effect on the date of the enactment of
this Act, as it may be amended after such date, or as it may
be issued or agreed to after such date.
SEC. 207. EFFECTIVE DATE.
This title and the amendments made by this title shall take
effect 90 days after the date of the enactment of this Act.
____________________