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of copyright in the sound recording, as long as "copies or phonorecords of said programs are not commercially distributed by or through public broadcasting entities to the general public." During the 1975 hearings, the Register of Copyrights expressed some concern that an invaluable segment of this country's musical heritage - in the form of sound recordings - had become inaccessible to musicologists and to others for scholarly purposes. Several of the major recording companies have responded to the Register's concern by granting blanket licenses to the Library of Congress to permit it to make single copy duplications of sound recordings maintained in the Library's archives for research purposes. Moreover, steps are being taken to determine the feasibility of additional licensing arrangements as a means of satisfying the needs of key regional music libraries across the country. The Register has agreed to report to Congress if further legislative consideration should be undertaken. Section 114(c) states explicitly that nothing in the provisions of section 114 should be construed to "limit or impair the exclusive right to perform publicly, by means of a phonorecord, any of the works specified by section 106(4)." This principle is already implicit in the bill, but it is restated to avoid the danger of confusion between rights in a sound recording and rights in the musical composition or other work embodied in the recording. -REFTEXT- REFERENCES IN TEXT Section 602(12) of the Communications Act of 1934, referred to in subsec. (d)(1)(C)(iii), was subsequently amended, and section 602(12) no longer defines "multichannel video programming distributor". However, such term is defined elsewhere in that section. The date of the enactment of the Digital Millennium Copyright Act, referred to in subsecs. (d)(2)(C)(ix) and (f)(2)(A), (B), is the date of enactment of Pub. L. 105-304, which was approved Oct. 28, 1998. The date of enactment of the Digital Performance Right in Sound Recordings Act of 1995, referred to in subsecs. (d)(4)(B)(iii), (C) and (f)(1), is the date of enactment of Pub. L. 104-39, which was approved Nov. 1, 1995. The antitrust laws, referred to in subsec. (e)(1), are classified generally to chapter 1 (Sec. 1 et seq.) of Title 15, Commerce and Trade. For effective date of the Digital Performance Right in Sound Recordings Act of 1995, referred to in subsec. (f)(1), see section 6 of Pub. L. 104-39, set out as an Effective Date of 1995 Amendment note under section 101 of this title. The Small Webcaster Settlement Act of 2002, referred to in subsec. (f)(5)(D), is Pub. L. 107-321, Dec. 4, 2002, 116 Stat. 2780, which amended this section and enacted provisions set out as notes under this section and section 101 of this title. For complete classification of this Act to the Code, see Short Title of 2002 Amendments note set out under section 101 of this title and Tables. -MISC2- AMENDMENTS 2002 - Subsec. (f)(5). Pub. L. 107-321, Sec. 4, added par. (5). Subsec. (g)(2). Pub. L. 107-321, Sec. 5(c), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "The copyright owner of the exclusive right under section 106(6) of this title to publicly perform a sound recording by means of a digital audio transmission shall allocate to recording artists in the following manner its receipts from the statutory licensing of transmission performances of the sound recording in accordance with subsection (f) of this section: "(A) 2 1/2 percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Musicians (or any successor entity) to be distributed to nonfeatured musicians (whether or not members of the American Federation of Musicians) who have performed on sound recordings. "(B) 2 1/2 percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Television and Radio Artists (or any successor entity) to be distributed to nonfeatured vocalists (whether or not members of the American Federation of Television and Radio Artists) who have performed on sound recordings. "(C) 45 percent of the receipts shall be allocated, on a per sound recording basis, to the recording artist or artists featured on such sound recording (or the persons conveying rights in the artists' performance in the sound recordings)." Subsec. (g)(3), (4). Pub. L. 107-321, Sec. 5(b), added pars. (3) and (4). 1998 - Subsec. (d)(1)(A). Pub. L. 105-304, Sec. 405(a)(1)(A), added subpar. (A) and struck out former subpar. (A) which read as follows: "(A)(i) a nonsubscription transmission other than a retransmission; "(ii) an initial nonsubscription retransmission made for direct reception by members of the public of a prior or simultaneous incidental transmission that is not made for direct reception by members of the public; or "(iii) a nonsubscription broadcast transmission;". Subsec. (d)(2). Pub. L. 105-304, Sec. 405(a)(1)(B), amended heading and text of par. (2) generally. Prior to amendment, text read as follows: "In the case of a subscription transmission not exempt under subsection (d)(1), the performance of a sound recording publicly by means of a digital audio transmission shall be subject to statutory licensing, in accordance with subsection (f) of this section, if - "(A) the transmission is not part of an interactive service; "(B) the transmission does not exceed the sound recording performance complement; "(C) the transmitting entity does not cause to be published by means of an advance program schedule or prior announcement the titles of the specific sound recordings or phonorecords embodying such sound recordings to be transmitted; "(D) except in the case of transmission to a business establishment, the transmitting entity does not automatically and intentionally cause any device receiving the transmission to switch from one program channel to another; and "(E) except as provided in section 1002(e) of this title, the transmission of the sound recording is accompanied by the information encoded in that sound recording, if any, by or under the authority of the copyright owner of that sound recording, that identifies the title of the sound recording, the featured recording artist who performs on the sound recording, and related information, including information concerning the underlying musical work and its writer." Subsec. (f). Pub. L. 105-304, Sec. 405(a)(2)(A), substituted "Certain Nonexempt" for "Nonexempt Subscription" in heading. Subsec. (f)(1)(A). Pub. L. 105-304, Sec. 405(a)(2)(B), designated existing provisions as subpar. (A), in first sentence, substituted "subscription transmissions by preexisting subscription services and transmissions by preexisting satellite digital audio radio services" for "the activities" and "2001" for "2000", and amended third sentence generally. Prior to amendment, third sentence read as follows: "Any copyright owners of sound recordings or any entities performing sound recordings affected by this section may submit to the Librarian of Congress licenses covering such activities with respect to such sound recordings." Subsec. (f)(1)(B), (C). Pub. L. 105-304, Sec. 405(a)(2)(C), added subpars. (B) and (C). Subsec. (f)(2) to (5). Pub. L. 105-304, Sec. 405(a)(2)(C), added pars. (2) to (4) and struck out former pars. (2) to (5), which provided: in par. (2) that Librarian of Congress would convene a copyright arbitration royalty panel to determine schedule of rates and terms, that panel could consider rates and terms for comparable types of services under voluntary license agreements, and that requirements would be established by which copyright owners would receive notice of use of their recordings; in par. (3) that voluntarily negotiated license agreements would be given effect in lieu of determination by panel or decision by Librarian; in par. (4) that publication of notice of negotiations would be repeated no later than 30 days after petition was filed, in the first week of January, 2000, and at 5-year intervals thereafter, and that par. (2) procedures would be repeated upon filing of petition during a 60-day period commencing six months after publication of notice or on July 1, 2000 and at 5-year intervals thereafter; and in par. (5) that performance by non-exempt subscription transmission without infringing copyright was permissible by compliance with notice requirements and payment of royalty fees or agreement to pay such fees. Subsec. (g). Pub. L. 105-304, Sec. 405(a)(3)(A), struck out "Subscription" before "Transmissions" in heading. Subsec. (g)(1). Pub. L. 105-304, Sec. 405(a)(3)(B), substituted "transmission licensed under a statutory license" for "subscription transmission licensed" in introductory provisions. Subsec. (g)(1)(A), (B). Pub. L. 105-304, Sec. 405(a)(3)(C), struck out "subscription" before "transmission". Subsec. (g)(2). Pub. L. 105-304, Sec. 405(a)(3)(D), struck out "subscription" before "transmission performances" in introductory provisions. Subsec. (j)(2), (3). Pub. L. 105-304, Sec. 405(a)(4)(A), (B), added par. (2) and redesignated former par. (2) as (3). Former par. (3) redesignated (5). Subsec. (j)(4). Pub. L. 105-304, Sec. 405(a)(4)(A), (C), added par. (4) and struck out former par. (4) which read as follows: "An 'interactive service' is one that enables a member of the public to receive, on request, a transmission of a particular sound recording chosen by or on behalf of the recipient. The ability of individuals to request that particular sound recordings be performed for reception by the public at large does not make a service interactive. If an entity offers both interactive and non-interactive services (either concurrently or at different times), the non-interactive component shall not be treated as part of an interactive service." Subsec. (j)(5). Pub. L. 105-304, Sec. 405(a)(4)(A), redesignated par. (3) as (5). Former par. (5) redesignated (9). Subsec. (j)(6) to (8). Pub. L. 105-304, Sec. 405(a)(4)(A), (D), added pars. (6) to (8). Former pars. (6) to (8) redesignated (12) to (14), respectively. Subsec. (j)(9). Pub. L. 105-304, Sec. 405(a)(4)(A), redesignated par. (5) as (9) and struck out former par. (9) which read as follows: "A 'transmission' includes both an initial transmission and a retransmission." Subsec. (j)(10), (11). Pub. L. 105-304, Sec. 405(a)(4)(E), added pars. (10) and (11). Subsec. (j)(12) to (14). Pub. L. 105-304, Sec. 405(a)(4)(A), redesignated pars. (6) to (8) as (12) to (14), respectively. Subsec. (j)(15). Pub. L. 105-304, Sec. 405(a)(4)(F), added par. (15). 1997 - Subsec. (f)(1). Pub. L. 105-80, Sec. 3(1), inserted ", or, if a copyright arbitration royalty panel is convened, ending 30 days after the Librarian issues and publishes in the Federal Register an order adopting the determination of the copyright arbitration royalty panel or an order setting the terms and rates (if the Librarian rejects the panel's determination)" after "December 31, 2000". Subsec. (f)(2). Pub. L. 105-80, Sec. 3(2), struck out "and publish in the Federal Register" before "a schedule of rates and terms". 1995 - Subsec. (a). Pub. L. 104-39, Sec. 3(1), substituted "(3) and (6) of section 106" for "and (3) of section 106". Subsec. (b). Pub. L. 104-39, Sec. 3(2), substituted "phonorecords or copies" for "phonorecords, or of copies of motion pictures and other audiovisual works," in first sentence. Subsec. (d). Pub. L. 104-39, Sec. 3(3), added subsec. (d) and struck out former subsec. (d), which read as follows: "On January 3, 1978, the Register of Copyrights, after consulting with representatives of owners of copyrighted materials, representatives of the broadcasting, recording, motion picture, entertainment industries, and arts organizations, representatives of organized labor and performers of copyrighted materials, shall submit to the Congress a report setting forth recommendations as to whether this section should be amended to provide for performers and copyright owners of copyrighted material any performance rights in such material. The report should describe the status of such rights in foreign countries, the views of major interested parties, and specific legislative or other recommendations, if any." Subsecs. (e) to (j). Pub. L. 104-39, Sec. 3(4), added subsecs. (e) to (j). EFFECTIVE DATE OF 1998 AMENDMENT Amendment by section 405(a)(1), (2)(A), (B)(i)(I), (II), (ii), (3), (4) of Pub. L. 105-304 effective Oct. 28, 1998, except as otherwise provided, see section 407 of Pub. L. 105-304, set out as a note under section 108 of this title. Pub. L. 105-304, title IV, Sec. 405(a)(5), Oct. 28, 1998, 112 Stat. 2899, provided that: "The amendment made by paragraph (2)(B)(i)(III) of this subsection [amending this section] shall be deemed to have been enacted as part of the Digital Performance Right in Sound Recordings Act of 1995 [Pub. L. 104-39], and the publication of notice of proceedings under section 114(f)(1) of title 17, United States Code, as in effect upon the effective date of that Act [see Effective Date of 1995 Amendment note set out under section 101 of this title], for the determination of royalty payments shall be deemed to have been made for the period beginning on the effective date of that Act and ending on December 1, 2001." EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104-39 effective 3 months after Nov. 1, 1995, except that provisions of subsecs. (e) and (f) of this section effective Nov. 1, 1995, see section 6 of Pub. L. 104-39, set out as a note under section 101 of this title. CONSTRUCTION OF 1998 AMENDMENT Pub. L. 105-304, title IV, Sec. 405(a)(6), Oct. 28, 1998, 112 Stat. 2899, provided that: "The amendments made by this subsection [amending this section] do not annul, limit, or otherwise impair the rights that are preserved by section 114 of title 17, United States Code, including the rights preserved by subsections (c), (d)(4), and (i) of such section." FINDINGS RELATING TO PUB. L. 107-321 Pub. L. 107-321, Sec. 2, Dec. 4, 2002, 116 Stat. 2780, provided that: "Congress finds the following: "(1) Some small webcasters who did not participate in the copyright arbitration royalty panel proceeding leading to the July 8, 2002 order of the Librarian of Congress establishing rates and terms for certain digital performances and ephemeral reproductions of sound recordings, as provided in part 261 of the Code of Federal Regulations (published in the Federal Register on July 8, 2002) (referred to in this section as 'small webcasters'), have expressed reservations about the fee structure set forth in such order, and have expressed their desire for a fee based on a percentage of revenue. "(2) Congress has strongly encouraged representatives of copyright owners of sound recordings and representatives of the small webcasters to engage in negotiations to arrive at an agreement that would include a fee based on a percentage of revenue. "(3) The representatives have arrived at an agreement that they can accept in the extraordinary and unique circumstances here presented, specifically as to the small webcasters, their belief in their inability to pay the fees due pursuant to the July 8 order, and as to the copyright owners of sound recordings and performers, the strong encouragement of Congress to reach an accommodation with the small webcasters on an expedited basis. "(4) The representatives have indicated that they do not believe the agreement provides for or in any way approximates fair or reasonable royalty rates and terms, or rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller. "(5) Congress has made no determination as to whether the agreement provides for or in any way approximates fair or reasonable fees and terms, or rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller. "(6) Congress likewise has made no determination as to whether the July 8 order is reasonable or arbitrary, and nothing in this Act [amending this section and enacting provisions set out as notes under this section and section 101 of this title] shall be taken into account by the United States Court of Appeals for the District of Columbia Circuit in its review of such order. "(7) It is, nevertheless, in the public interest for the parties to be able to enter into such an agreement without fear of liability for deviating from the fees and terms of the July 8 order, if it is clear that the agreement will not be admissible as evidence or otherwise taken into account in any government proceeding involving the setting or adjustment of the royalties payable to copyright owners of sound recordings for the public performance or reproduction in ephemeral phonorecords or copies of such works, the determination of terms or conditions related thereto, or the establishment of notice or recordkeeping requirements." Pub. L. 107-321, Sec. 5(a), Dec. 4, 2002, 116 Stat. 2783, provided that: "Congress finds that - "(1) in the case of royalty payments from the licensing of digital transmissions of sound recordings under subsection (f) of section 114 of title 17, United States Code, the parties have voluntarily negotiated arrangements under which payments shall be made directly to featured recording artists and the administrators of the accounts provided in subsection (g)(2) of that section; "(2) such voluntarily negotiated payment arrangements have been codified in regulations issued by the Librarian of Congress, currently found in section 261.4 of title 37, Code of Federal Regulations, as published in the Federal Register on July 8, 2002; "(3) other regulations issued by the Librarian of Congress were inconsistent with the voluntarily negotiated arrangements by such parties concerning the deductibility of certain costs incurred for licensing and arbitration, and Congress is therefore restoring those terms as originally negotiated among the parties; and "(4) in light of the special circumstances described in this subsection, the uncertainty created by the regulations issued by the Librarian of Congress, and the fact that all of the interested parties have reached agreement, the voluntarily negotiated arrangements agreed to among the parties are being codified." SUSPENSION OF CERTAIN PAYMENTS Pub. L. 107-321, Sec. 3, Dec. 4, 2002, 116 Stat. 2781, provided that: "(a) Noncommercial Webcasters. - "(1) In general. - The payments to be made by noncommercial webcasters for the digital performance of sound recordings under section 114 of title 17, United States Code, and the making of ephemeral phonorecords under section 112 of title 17, United States Code, during the period beginning on October 28, 1998, and ending on May 31, 2003, which have not already been paid, shall not be due until June 20, 2003. "(2) Definition. - In this subsection, the term 'noncommercial webcaster' has the meaning given that term in section 114(f)(5)(E)(i) of title 17, United States Code, as added by section 4 of this Act. "(b) Small Commercial Webcasters. - "(1) In general. - The receiving agent may, in a writing signed by an authorized representative thereof, delay the obligation of any 1 or more small commercial webcasters to make payments pursuant to sections 112 and 114 of title 17, United States Code, for a period determined by such entity to allow negotiations as permitted in section 4 of this Act [amending this section], except that any such period shall end no later than December 15, 2002. The duration and terms of any such delay shall be as set forth in such writing. "(2) Definitions. - In this subsection - "(A) the term 'webcaster' has the meaning given that term in section 114(f)(5)(E)(iii) of title 17, United States Code, as added by section 4 of this Act; and "(B) the term 'receiving agent' shall have the meaning given that term in section 261.2 of title 37, Code of Federal Regulations, as published in the Federal Register on July 8, 2002." REPORT TO CONGRESS Pub. L. 107-321, Sec. 6, Dec. 4, 2002, 116 Stat. 2785, provided that: "By not later than June 1, 2004, the Comptroller General of the United States, in consultation with the Register of Copyrights, shall conduct and submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a study concerning the economic arrangements among small commercial webcasters covered by agreements entered into pursuant to section 114(f)(5)(A) of title 17, United States Code, as added by section 4 of this Act, and third parties, and the effect of those arrangements on royalty fees payable on a percentage of revenue or expense basis." -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 106, 111, 112, 115, 119, 501, 511, 801, 802, 803 of this title; title 18 section 2319. -FOOTNOTE- (!1) See References in Text note below. -End- -CITE- 17 USC Sec. 115 01/19/04 -EXPCITE- TITLE 17 - COPYRIGHTS CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT -HEAD- Sec. 115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords -STATUTE- In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section. (a) Availability and Scope of Compulsory License. - (1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person, including those who make phonorecords or digital phonorecord deliveries, may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work. A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use, including by means of a digital phonorecord delivery. A person may not obtain a compulsory license for use of the work in the making of phonorecords duplicating a sound recording fixed by another, unless: (i) such sound recording was fixed lawfully; and (ii) the making of the phonorecords was authorized by the owner of copyright in the sound recording or, if the sound recording was fixed before February 15, 1972, by any person who fixed the sound recording pursuant to an express license from the owner of the copyright in the musical work or pursuant to a valid compulsory license for use of such work in a sound recording. (2) A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner. (b) Notice of Intention To Obtain Compulsory License. - (1) Any person who wishes to obtain a compulsory license under this section shall, before or within thirty days after making, and before distributing any phonorecords of the work, serve notice of intention to do so on the copyright owner. If the registration or other

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