Text - H.R.1733 - 114th Congress (2015-2016): Fair Play Fair Pay Act of 2015 | Congress.gov | Library of Congress

(a) Short title.—This Act may be cited as the “Fair Play Fair Pay Act of 2015”.

(b) Table of contents.—The table of contents for this Act is as follows:

(a) Performance right applicable to transmissions generally.—Paragraph (6) of section 106 of title 17, United States Code, is amended to read as follows:

“(6) in the case of sound recordings, to perform the copyrighted work publicly by means of an audio transmission.”.

(B) by redesignating clauses (ii) and (iv) as clauses (i) and (ii), respectively;

(C) in clause (i), as so redesignated, by adding “or” after “retransmitter;”; and

(D) in clause (ii), as so redesignated, by striking “retransmission, whether or not simultaneous, is a” and inserting “retransmission is a non-simultaneous,”.

(bb) in subparagraph (C)(viii), by striking “digital signal” and inserting “signal”; and

(bb) in subparagraph (B)(i), by striking “a digital audio transmission” and inserting “an audio transmission”;

(ii) in subsection (g)(2)(A), by striking “a digital” and inserting “an”; and

(bb) by striking “retransmissions of broadcast transmissions” and inserting “broadcast transmissions and retransmissions of broadcast transmissions”; and

(II) in paragraph (8), by striking “subscription digital” and inserting “subscription”.

Paragraph (3) of section 804(b) of title 17, United States Code, is amended by adding at the end the following new subparagraph:

“(D) A proceeding under this chapter shall be commenced as soon as practicable after the date of the enactment of the Fair Play Fair Pay Act of 2015 to determine royalty rates and terms for nonsubscription broadcast transmissions, to be effective for the period beginning on such date of enactment, and ending on December 31, 2020. Any payment due under section 114(f)(1)(D) shall not be due until the due date of the first royalty payments for nonsubscription broadcast transmissions that are determined, after the date of the enactment of the Fair Play Fair Pay Act of 2015, by the Copyright Royalty Judges. Thereafter, such proceeding shall be repeated in each subsequent fifth calendar year.”.

“(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 investment, cost, and risk; and

“(ii) may consider the rates and terms for comparable types of audio transmission services and comparable circumstances under voluntary license agreements.

“(C) The procedures under subparagraphs (A) and (B) shall also be initiated pursuant to a petition filed by any copyright owner 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 eligible nonsubscription services and new subscription services, or preexisting 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.”; and

(2) by redesignating paragraphs (3), (4), and (5) as paragraphs (2), (3), and (4), respectively.

(2) SECTION 801.—Section 801(b)(1) of title 17, United States Code, is amended by striking “114(f)(1)(B), 115,” and inserting “115”.

(B) in clause (iii)(II), by striking “114(f)(4)(B)(ii)” and inserting “114(f)(3)(B)(ii)”; and

(C) in clause (iv), by striking “or 114(f)(2)(C), as the case may be”.

(a) Special Protection for Small Broadcasters.—Section 114(f)(1) of title 17, United States Code, as amended by section 4(a), is further amended by inserting at the end the following new subparagraph:

(b) Special Protection for Public Broadcasters, College Radio, and other Noncommercial Stations.—Subparagraph (D) of section 114(f)(1) of title 17, United States Code, as added by subsection (a), is amended by inserting at the end the following new clauses:

“(ii) Notwithstanding the provisions of subparagraphs (A) through (C), the royalty rate for nonsubscription broadcast transmissions by each individual terrestrial broadcast station licensed as such by the Federal Communications Commission that is a public broadcasting entity as defined in section 118(f) shall be $100 per year.

“(iii) The royalty rates specified in clauses (i) and (ii) shall not be admissible as evidence or otherwise taken into account in determining royalty rates in a proceeding under chapter 8, or in any other administrative, judicial, or other Federal Government proceeding involving the setting or adjustment of the royalties payable for the public performance or reproduction in ephemeral phonorecords or copies of sound recordings, the determination of terms or conditions related thereto, or the establishment of notice or recordkeeping requirements.”.

(c) No Royalties for Religious Services or Incidental Uses of Music.—Section 114(d)(1) of title 17, United States Code, as amended by section 2(b), is further amended by striking subparagraph (A) and inserting the following:

“(ii) an incidental use of a sound recording of a musical work;”.

Section 114(g) of title 17, United States Code, is amended—

(1) in paragraph (1), by inserting “or in the case of a transmission to which paragraph (5) applies” after “this section”; and

(2) by adding at the end the following new paragraph:

“(5) Notwithstanding paragraph (1), to the extent that a license granted by the copyright owner of a sound recording to a transmitting entity eligible for a statutory license under subsection (d)(2) extends to such entity’s transmissions otherwise licensable under a statutory license in accordance with subsection (f), such entity shall pay to the agent designated to distribute statutory licensing receipts from the licensing of transmissions in accordance with subsection (f), 50 percent of the total royalties that such entity is required, pursuant to the applicable license agreement, to pay for such transmissions otherwise licensable under a statutory license in accordance with subsection (f). That agent shall distribute such payments in proportion to the distributions provided in subparagraphs (B) through (D) of paragraph (2), and such payments shall be the sole payments to which featured and nonfeatured artists are entitled by virtue of such transmissions under the direct license with such entity.”.

(a) Payment for use of certain sound recordings.—Section 114(f)(3) of title 17, United States Code, as so redesignated, is amended by adding at the end the following:

“(II) the reproduction would have been subject to statutory licensing under section 112(e)(1) if the sound recording had been first fixed on or after February 15, 1972;

“(III) the transmitting entity has satisfied the requirements for statutory licensing under subparagraph (B) and section 112(e)(6); and

“(IV) the applicable royalty was paid and accounted for under this subparagraph.

“(iv) This subparagraph does not confer copyright protection under this title upon sound recordings that were fixed before February 15, 1972. Such sound recordings are subject to the protection available under the laws of the States, and except as provided in clause (iii), are not subject to any limitation of rights or remedies, or any defense, provided under this title.

“(v) This subparagraph shall have no effect with respect to any public performance that is made of a sound recording, or reproduction that is made of a sound recording under the circumstances described in section 112(e)(1), on or after February 15, 2067.”.

(b) Effective date.—The amendments made by this section shall apply to performances and reproductions of sound recordings occurring on or after the date of the enactment of this Act.

“(2) NECESSITY FOR OTHER LICENSES.—Notwithstanding the grant by an owner of copyright in a sound recording of an exclusive or nonexclusive license of the right under section 106(6) to perform the work publicly, a licensee of that sound recording may not publicly perform such sound recording unless a license has been granted for the public performance of any copyrighted musical work contained in the sound recording. Such license to publicly perform the copyrighted musical work may be granted either by a performing rights society representing the copyright owner or by the copyright owner.”.

(2) CONFORMING AMENDMENT.—Section 114(d)(3)(C) of title 17, United States Code, is hereby repealed.

(b) Public performance rights and royalties.—Nothing in this Act, or the amendments made by this Act, shall adversely affect in any respect the public performance rights of or royalties payable to songwriters or copyright owners of musical works.

(c) Preservation of royalties on underlying works publicly performed by terrestrial broadcast stations.—Section 114(f) of title 17, United States Code, as amended by section 4(a), is further amended by adding at the end the following new paragraph:

“(5) Notwithstanding any other provision of this section, under no circumstances shall the rates established by the Copyright Royalty Judges for the public performance of sound recordings be cited, taken into account, or otherwise used in any administrative, judicial, or other governmental forum or proceeding, or otherwise, to reduce or adversely affect the license fees payable to copyright owners of musical works or their representatives for the public performance of their works by terrestrial broadcast stations, and such license fees for the public performance of musical works shall be independent of license fees paid for the public performance of sound recordings.”.

(a) Letter of direction.—Section 114(g) of title 17, United States Code, as amended by section 6, is further amended by adding at the end the following new paragraph:

“(6) LETTER OF DIRECTION.—A collective designated by the Copyright Royalty Judges to distribute receipts from the licensing of transmissions in accordance with subsection (f) shall adopt and reasonably implement a policy that provides, in circumstances determined by the collective to be appropriate, for acceptance of instructions from a payee identified in subparagraph (A) or (D) of paragraph (2) to distribute a portion of the payments to which the payee otherwise would be entitled from the licensing of transmissions of a particular sound recording to a producer, mixer, or sound engineer who was part of the creative process that created the sound recording (in this section, referred to as a ‘letter of direction’). To the extent that the collective accepts a letter of direction, the person entitled to payment pursuant to such letter of direction shall, during the time such letter of direction is in effect and followed by the collective, be treated for all purposes as the owner of the right to receive such payment. This paragraph shall not be interpreted to imply that a collective cannot accept or act upon payment instructions in other circumstances.”.

(b) Additional provisions for recordings fixed before November 1, 1995.—Section 114(g) of title 17, United States Code, as amended by subsection (a), is further amended by adding at the end the following new paragraph:

“(II) during the period beginning on the date that person began the reasonable efforts described in subclause (I) and ending on date of that person’s certification to the collective, the artist payee did not definitively affirm or deny the request for a letter of direction.

“(ii) COLLECTIVE ATTEMPT TO CONTACT ARTIST.—After receipt of the certification described in clause (i) and for a period of at least 4 months before the collective’s first distribution to the person described in subparagraph (B), the collective attempted to notify the artist payee of the certification made by the person described in subparagraph (B) in a manner reasonably determined by the collective.

“(iii) NO OBJECTION RECEIVED.—An objection to the distribution has not been submitted to the collective by the artist payee as of the date that is 10 business days before the date on which the first distribution is made.

“(ii) has entered into a written contract with a record company involved in the creation or lawful exploitation of the relevant sound recording, or with the recording artist or artists featured on such sound recording (or the persons conveying rights in the artists performance in the sound recordings), pursuant to which such person is entitled to participate in royalty payments based on exploitation of the relevant sound recording that are payable from royalties otherwise payable to the recording artist or artists featured on such sound recording (or the persons conveying rights in the artists performance in the sound recordings);

“(iii) made a contribution, of a nature subject to copyright protection under section 102, to the creation of the relevant sound recording; and

“(iv) submits a written certification to the collective stating, under penalty of perjury, that such person meets the requirements in clauses (i) through (iii) and includes a true copy of the contract described in clause (ii).

“(C) MULTIPLE CERTIFICATIONS.—Subject to subparagraph (D), in a case in which more than one person described in subparagraph (B) has met the requirements for a distribution pursuant to subparagraph (A) with respect to a sound recording as of the date that is 10 business days before the date on which a distribution is made, the collective shall divide the 2 percent distribution equally among all such persons.

“(D) OBJECTION TO PAYMENT.—Not later than 10 days after the collective receives from the artist payee a written objection to a distribution made pursuant to subparagraph (A), the collective shall cease making any further payment related to such distribution. In any case in which the collective has made one or more distributions pursuant to subparagraph (A) to a person described in subparagraph (B) before the date that is 10 business days after the date on which the collective receives an objection by the artist payee to such distribution, the objection shall not affect that person’s entitlement to any distribution made before the collective ceases such distribution pursuant to this subparagraph.

“(E) OWNERSHIP OF THE RIGHT TO RECEIVE PAYMENTS.—To the extent that the collective determines that a distribution will be made pursuant to subparagraph (A) to a person described in subparagraph (B), such person shall during the period of such distribution be treated for all purposes as the owner of the right to receive such payments.

“(F) ARTIST PAYEE DEFINED.—In this paragraph, the term ‘artist payee’ means a person, other than a person described in subparagraph (B), who owns the right to receive all or part of the receipts payable under paragraph (2)(D) with respect to a sound recording. In a case in which there are multiple artist payees with respect to a sound recording, an objection by one such payee shall apply only to that payee’s share of the receipts payable under paragraph (2)(D), and does not preclude payment under subparagraph (A) from the share of an artist payee that does not object.”.

(B) by striking “agent” and inserting “collective”, each place it appears; and

(3) in paragraph (4), by striking “agent” and inserting “collective”, each place it appears.

This Act, and the amendments made by this Act, shall take effect on the date of enactment of this Act, and except as provided in the amendment made by section 3, shall apply to any proceeding that is pending on, or commenced on or after, such effective date.