Sec. 103. AMENDMENTS TO SECTION 114
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## SEC. 103 AMENDMENTS TO SECTION 114 ###
(a)Uniform Rate Standard Section 114(f) of title 17, United States Code, is amended— ####
(1)by striking paragraphs
(1)and
(2)and inserting the following: > > #### “(1) > > > #####
(A)> > Proceedings under chapter 8 shall determine reasonable rates and terms of royalty payments for transmissions subject to statutory licensing under subsection (d)(2) during the 5-year period beginning on January 1 of the second year following the year in which the proceedings are to be commenced pursuant to subparagraph
(A)or
(B)of section 804(b)(3), as the case may be, or such other period as the parties may agree. The parties to each proceeding shall bear their own costs. > > > ##### “(B) > > The schedule of reasonable rates and terms determined by the Copyright Royalty Judges shall, subject to paragraph (2), be binding on all copyright owners of sound recordings and entities performing sound recordings affected by this paragraph during the 5-year period specified in subparagraph (A), or such other period as the parties may agree. Such rates and terms shall distinguish among the different types of services then in operation and shall include a minimum fee for each such type of service, such differences to be based on criteria including the quantity and nature of the use of sound recordings and the degree to which use of the service may substitute for or may promote the purchase of phonorecords by consumers. The Copyright Royalty Judges shall establish rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller. In determining such rates and terms, the Copyright Royalty Judges— > > > ###### “(i) > > shall base their decision on economic, competitive, and programming information presented by the parties, including— > > > ###### “(I) > > whether use of the service may substitute for or may promote the sales of phonorecords or otherwise may interfere with or may enhance the sound recording copyright owner’s other streams of revenue from the copyright owner’s sound recordings; and > > > ###### “(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 sound recording copyright owner 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 subscription services and preexisting satellite digital audio radio 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. ###
(b)Repeal Subsection
(i)of section 114 of title 17, United States Code, is repealed. ###
(c)Use in Musical Work Proceedings **[**[17 U.S.C. 114 note](/us/usc/t17/s114)**]** ####
(1)In general License fees payable for the public performance of sound recordings under section 106(6) of title 17, United States Code, shall not be taken into account in any administrative, judicial, or other governmental proceeding to set or adjust the royalties payable to musical work copyright owners for the public performance of their works except in such a proceeding to set or adjust royalties for the public performance of musical works by means of a digital audio transmission other than a transmission by a broadcaster, and may be taken into account only with respect to such digital audio transmission. ####
(2)Definitions In this subsection: #####
(A)Transmission by a broadcaster The term “transmission by a broadcaster” means a nonsubscription digital transmission made by a terrestrial broadcast station on its own behalf, or on the behalf of a terrestrial broadcast station under common ownership or control, that is not part of an interactive service or a music-intensive service comprising the transmission of sound recordings customized for or customizable by recipients or service users. #####
(B)Terrestrial broadcast station The term “terrestrial broadcast station” means a terrestrial, over-the-air radio or television broadcast station, including an FM translator (as defined in section 74.1201 of title 47, Code of Federal Regulations, and licensed as such by the Federal Communications Commission) whose primary business activities are comprised of, and whose revenues are generated through, terrestrial, over-the-air broadcast transmissions, or the simultaneous or substantially-simultaneous digital retransmission by the terrestrial, over-the-air broadcast station of its over-the-air broadcast transmissions. ###
(d)Rule of Construction **[**[17 U.S.C. 114 note](/us/usc/t17/s114)**]** Subsection (c)(2) shall not be given effect in interpreting provisions of title 17, United States Code. ###
(e)Use in Sound Recording Proceedings **[**[17 U.S.C. 114 note](/us/usc/t17/s114)**]** The repeal of section 114(i) of title 17, United States Code, by subsection
(b)shall not be taken into account in any proceeding to set or adjust the rates and fees payable for the use of sound recordings under section 112(e) or 114(f) of such title that is pending on, or commenced on or after, the date of enactment of this Act. ###
(f)Decisions and Precedents Not Affected **[**[17 U.S.C. 114 note](/us/usc/t17/s114)**]** The repeal of section 114(i) of title 17, United States Code, by subsection
(b)shall not have any effect upon the decisions, or the precedents established or relied upon, in any proceeding to set or adjust the rates and fees payable for the use of sound recordings under section 112(e) or 114(f) of such title before the date of enactment of this Act. ###
(g)Technical and Conforming Amendments ####
(1)Section 114 Section 114(f) of title 17, United States Code, as amended by subsection (a), is further amended in paragraph (4)(C), as so redesignated, in the first sentence, by striking “under paragraph (4)” and inserting “under paragraph (3)”. ####
(2)Section 801 Section 801(b) of title 17, United States Code, is amended— #####
(A)in paragraph (1), by striking “The rates applicable” and all that follows though “prevailing industry practices.”; and #####
(B)in paragraph (7)(B), by striking “114(f)(3)” and inserting “114(f)(2)”. ####
(3)Section 803 Section 803(c)(2)(E)(i)(II) of title 17, United States Code, is amended— #####
(A)by striking “or 114(f)(2)(C)”; and #####
(B)by striking “114(f)(4)(B)” and inserting “114(f)(3)(B)”. ####
(4)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)”; #####
(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”. ###
(h)Effective Date of Amended Rate Setting Standard **[**[17 U.S.C. 114 note](/us/usc/t17/s114)**]** The amendments made by subsection (a)(1) shall apply to any proceeding before the Copyright Royalty Judges that is commenced on or after the date of the enactment of this Act. ###
(i)Timing of Rate Determinations Section 804(b)(3)(B) of title 17, United States Code, is amended, in the third sentence, by inserting the following after “fifth calendar year”: “, except that—(i) with respect to preexisting subscription services, the terms and rates finally determined for the rate period ending on December 31, 2022, shall remain in effect through December 31, 2027, and there shall be no proceeding to determine terms and rates for preexisting subscription services for the period beginning on January 1, 2023, and ending on December 31, 2027; and”“(ii) with respect to pre-existing satellite digital audio radio services, the terms and rates set forth by the Copyright Royalty Judges on December 14, 2017, in their initial determination for the rate period ending on December 31, 2022, shall be in effect through December 31, 2027, without any change based on a rehearing under section 803(c)(2) and without the possibility of appeal under section 803(d), and there shall be no proceeding to determine terms and rates for preexisting satellite digital audio radio services for 132 STAT. 3726 the period beginning on January 1, 2023, and ending on December 31, 2027”.
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Sec. 103
AMENDMENTS TO SECTION 114
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