--S

--S.505--

S.505

One Hundred Fifth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Tuesday,

the twenty-seventh day of January, one thousand nine hundred and ninety-eight

An Act

To amend the provisions of title 17, United States Code, with respect to the

duration of copyright, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United

States of America in Congress assembled,

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

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

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 subsections (c) (1), (2), (4), (5), and

(6) of this section apply to terminations of the last 20 years of

`(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

(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

(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.

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 2,000 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 2,000 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 1 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 3,750 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 3,750 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

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 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.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

END