Text: S.2644 — 109th Congress (2005-2006)

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Introduced in Senate (04/25/2006)


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[Congressional Bills 109th Congress]
[From the U.S. Government Printing Office]
[S. 2644 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 2644

   To harmonize rate setting standards for copyright licenses under 
  sections 112 and 114 of title 17, United States Code, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 25, 2006

Mrs. Feinstein (for herself, Mr. Graham, and Mr. Frist) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To harmonize rate setting standards for copyright licenses under 
  sections 112 and 114 of title 17, United States Code, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Platform Equality and Remedies for 
Rights Holders in Music Act of 2006'' or the ``Perform Act of 2006''.

SEC. 2. RATE SETTING STANDARDS.

    (a) Section 112 Licenses.--Section 112(e)(4) of title 17, United 
States Code, is amended in the third sentence by striking ``fees that 
would have been negotiated in the marketplace between a willing buyer 
and a willing seller'' and inserting ``the fair market value of the 
rights licensed under this subsection''.
    (b) Section 114 Licenses.--Section 114(f) of title 17, United 
States Code, is amended--
            (1) by striking paragraph (1);
            (2) by redesignating paragraphs (2), (3), (4), and (5) as 
        paragraphs (1), (2), (3), and (4), respectively; and
            (3) in paragraph (1) (as redesignated under this 
        subsection)--
                    (A) in subparagraph (A), by striking all after 
                ``Proceedings'' and inserting ``under chapter 8 shall 
                determine reasonable rates and terms of royalty 
                payments for transmissions during 5-year periods 
                beginning on January 1 of the second year following the 
                year in which the proceedings are to be commenced, 
                except where a different transitional period is 
                provided under section 6(b)(3) of the Copyright Royalty 
                and Distribution Reform Act of 2004, or such other 
                period as the parties may agree.'';
                    (B) in subparagraph (B)--
                            (i) in the first sentence, by striking 
                        ``affected by this paragraph'' and inserting 
                        ``under this section'';
                            (ii) in the second sentence, by striking 
                        ``eligible nonsubscription transmission''; and
                            (iii) in the third sentence--
                                    (I) by striking ``eligible 
                                nonsubscription services and new 
                                subscription''; and
                                    (II) by striking ``rates and terms 
                                that would have been negotiated in the 
                                marketplace between a willing buyer and 
                                a willing seller'' and inserting ``the 
                                fair market value of the rights 
                                licensed under this section'';
                            (iv) in the fourth sentence, by striking 
                        ``base its'' and inserting ``base their'';
                            (v) in clause (i), by striking ``and'' 
                        after the semicolon;
                            (vi) in clause (ii), by striking the period 
                        and inserting ``; and'';
                            (vii) by inserting after clause (ii) the 
                        following:
                            ``(iii) the degree to which reasonable 
                        recording affects the potential market for 
                        sound recordings, and the additional fees that 
                        are required to be paid by services for 
                        compensation.''; and
                            (viii) in the matter following clause (ii), 
                        by striking ``described in subparagraph (A)''; 
                        and
                    (C) by striking subparagraph (C) and inserting the 
                following:
                    ``(C) The procedures under subparagraphs (A) and 
                (B) shall also be initiated pursuant to a petition 
                filed by any copyright owners of sound recordings or 
                any transmitting entity indicating that a new type of 
                service on which sound recordings are performed is or 
                is about to become operational, for the purpose of 
                determining reasonable terms and rates of royalty 
                payments with respect to such new type of service for 
                the period beginning with the inception of such new 
                type of service and ending on the date on which the 
                royalty rates and terms for preexisting subscription 
                digital audio transmission services, eligible 
                nonsubscription services, or new subscription services, 
                as the case may be, most recently determined under 
                subparagraph (A) or (B) and chapter 8 expire, or such 
                other period as the parties may agree.''.
    (c) Content Protection.--Section 114(d)(2) of title 17, United 
States Code, is amended--
            (1) in subparagraph (A)--
                    (A) in clause (ii), by striking ``and'' after the 
                semicolon;
                    (B) in clause (iii), by adding ``and'' after the 
                semicolon; and
                    (C) by adding after clause (iii) the following:
                            ``(iv) the transmitting entity takes no 
                        affirmative steps to authorize, enable, cause 
                        or induce the making of a copy or phonorecord 
                        by or for the transmission recipient and uses 
                        technology that is reasonably available, 
                        technologically feasible, and economically 
                        reasonable to prevent the making of copies or 
                        phonorecords embodying the transmission in 
                        whole or in part, except for reasonable 
                        recording as defined in this subsection;'';
            (2) in subparagraph (C)--
                    (A) by striking clause (vi); and
                    (B) by redesignating clauses (vii) through (ix) as 
                clauses (vi) through (viii), respectively; and
            (3) by adding at the end the following:
``For purposes of subparagraph (A)(iv), the mere offering of a 
transmission and accompanying metadata does not in itself authorize, 
enable, cause, or induce the making of a phonorecord. Nothing shall 
preclude or prevent a performing rights society or a mechanical rights 
organization, or any entity owned in whole or in part by, or acting on 
behalf of, such organizations or entities, from monitoring public 
performances or other uses of copyrighted works contained in such 
transmissions. Any such organization or entity shall be granted a 
license on either a gratuitous basis or for a de minimus fee to cover 
only the reasonable costs to the licensor of providing the license, and 
on reasonable, nondiscriminatory terms, to access and retransmit as 
necessary any content contained in such transmissions protected by 
content protection or similar technologies, if such licenses are for 
purposes of carrying out the activities of such organizations or 
entities in monitoring the public performance or other uses of 
copyrighted works, and such organizations or entities employ reasonable 
methods to protect any such content accessed from further 
distribution.''.
    (d) Definition.--Section 114(j) of title 17, United States Code, is 
amended--
            (1) by redesignating paragraphs (10) through (15) as 
        paragraphs (11) through (16), respectively; and
            (2) by inserting after paragraph (9) the following:
            ``(10)(A) A `reasonable recording' means the making of a 
        phonorecord embodying all or part of a performance licensed 
        under this section for private, noncommercial use where 
        technological measures used by the transmitting entity, and 
        which are incorporated into a recording device--
                    ``(i) permit automated recording or playback based 
                on specific programs, time periods, or channels as 
                selected by or for the user;
                    ``(ii) do not permit automated recording or 
                playback based on specific sound recordings, albums, or 
                artists;
                    ``(iii) do not permit the separation of component 
                segments of the copyrighted material contained in the 
                transmission program which results in the playback of a 
                manipulated sequence; and
                    ``(iv) do not permit the redistribution, 
                retransmission or other exporting of a phonorecord 
                embodying all or part of a performance licensed under 
                this section from the device by digital outputs or 
                removable media, unless the destination device is part 
                of a secure in-home network that also complies with 
                each of the requirements prescribed in this paragraph.
            ``(B) Nothing in this paragraph shall prevent a consumer 
        from engaging in non-automated manual recording and playback in 
        a manner that is not an infringement of copyright.''.
    (e) Technical and Conforming Amendments.--
            (1) Section 114.--Section 114(f) of title 17, United States 
        Code (as amended by subsection (b) of this section), is further 
        amended--
                    (A) in paragraph (1)(B), in the first sentence, by 
                striking ``paragraph (3)'' and inserting ``paragraph 
                (2)''; and
                    (B) in paragraph (4)(C), by striking ``under 
                paragraph (4)'' and inserting ``under paragraph (3)''.
            (2) Section 804.--Section 804(b)(3)(C) of title 17, United 
        States Code, is amended--
                    (A) in clause (i), by striking ``and 
                114(f)(2)(C)''; and
                    (B) in clause (iv), by striking ``or 114(f)(2)(C), 
                as the case may be''.

SEC. 3. REGISTER OF COPYRIGHTS MEETING AND REPORT.

    (a) Meeting.--Not later than 60 days after the Copyright Royalty 
Board's final determination in Docket No. 2005-1 CRB DTRA, the Register 
of Copyrights shall convene a meeting among affected parties to discuss 
whether to recommend creating a new category of limited interactive 
services, including an appropriate premium rate for such services, 
within the statutory license contained in section 114 of title 17, 
United States Code.
    (b) Report.--Not later than 90 days after the convening of the 
meeting under subsection (a), the Register of Copyrights shall submit a 
report on the discussions at that meeting to the Committee on the 
Judiciary of the Senate and the Committee on the Judiciary of the House 
of Representatives.
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