,i #aaeth ,,congress #ast ,session ,h4 ,r4 #ahcf ,,in ,,the ,,house ,,of ,,representatives ,march #cj1 #bjag,mr4 ,nadler 7for himself1 ,mrs4 ,blackburn1 ,mr4 ,conyers1 ,mr4 ,issa1 ,mr4 ,deutch1 and ,mr4 ,thomas ,j4 ,rooney of ,florida7 introduced the following bill2 which was referred to the ,committee on the ,judiciary ,a ,,bill ,to amend title #ag1 ,united ,states ,code1 to provide fair treatment of radio stations and artists for the use of sound recordings1 and for other purposes4 #a4 ,short title2 table of contents 7a7 ,short title ,this ,act may be cited as the ,fair ,play ,fair ,pay ,act of #bjag4 7b7 ,table of contents ,the table of contents for this ,act is as follows3 ,sec4 #a4 ,short title2 table of contents4 ,sec4 #b4 ,equitable treatment for terrestrial broadcasts and ,internet services4 ,sec4 #c4 ,timing of proceedings under sections #aab7;e7 and #aad7;f74 ,sec4 #d4 ,ensuring platform parity4 ,sec4 #e4 ,special protection for small broadcasters1 public and educational radio1 religious services1 and incidental use of music4 ,sec4 #f4 ,distribution of certain royalties4 ,sec4 #g4 ,equitable treatment of legacy sound recordings4 ,sec4 #h4 ,no harmful effects on songwriters4 ,sec4 #i4 ,allocation of payments to music producers4 ,sec4 #aj4 ,effective date4 #b4 ,equitable treatment for terrestrial broadcasts and ,internet services 7a7 ,performance right applicable to transmissions generally ,paragraph 7#f7 of section #ajf of title #ag1 ,united ,states ,code1 is amended to read as follows3 7#f7 in the case of sound recordings1 to perform the copyrighted work publicly by means of an audio transmission4 4 7b7 ,inclusion of terrestrial broadcasts in existing performance right and statutory license ,section #aad7;d77#a7 of title #ag1 ,united ,states ,code1 is amended-- 7#a7 in the matter preceding subparagraph 7,a71 by striking a digital and inserting an2 and 7#b7 in subparagraph 7,b7-- 7,a7 by striking clauses 7i7 and 7iii72 7,b7 by redesignating clauses 7ii7 and 7iv7 as clauses 7i7 and 7ii71 respectively2 7,c7 in clause 7i71 as so redesignated1 by adding or after retransmitter22 and 7,d7 in clause 7ii71 as so redesignated1 by striking retransmission1 whether or not simultaneous1 is a and inserting retransmission is a non-simultaneous14 7c7 ,technical and conforming amendments 7#a7 ,definition ,section #aja of title #ag1 ,united ,states ,code1 is amended by inserting after the definition of architectural work the following3 ,an audio transmission is a transmission of a sound recording1 whether in a digital1 analog1 or other format4 ,this term does not include the transmission of any audiovisual work4 4 7#b7 ,conforming removal of digital ,title #ag1 ,united ,states ,code1 is amended-- 7,a7 in section #aab7;e77#h71 by striking a digital audio transmission and inserting an audio transmission2 and 7,b7 in section #aad-- 7i7 in subsection 7d7-- 7,i7 in paragraph 7#b7-- 7aa7 in the matter preceding subparagraph 7,a71 by striking subscription digital and inserting subscription2 and 7bb7 in subparagraph 7,c77viii71 by striking digital signal and inserting signal2 and 7,,ii7 in paragraph 7#d7-- 7aa7 in subparagraph 7,a71 by striking a digital audio transmission and inserting an audio transmission2 and 7bb7 in subparagraph 7,b77i71 by striking a digital audio transmission and inserting an audio transmission2 7ii7 in subsection 7g77#b77;,a71 by striking a digital and inserting an2 and 7iii7 in subsection 7j7-- 7,i7 in paragraph 7#f7-- 7aa7 by striking digital2 and 7bb7 by striking retransmissions of broadcast transmissions and inserting broadcast transmissions and retransmissions of broadcast transmissions2 and 7,,ii7 in paragraph 7#h71 by striking subscription digital and inserting subscription4 #c4 ,timing of proceedings under sections #aab7;e7 and #aad7;f7 ,paragraph 7#c7 of section #hjd7;b7 of title #ag1 ,united ,states ,code1 is amended by adding at the end the following new subparagraph3 7,d7 ,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 #bjag to determine royalty rates and terms for nonsubscription broadcast transmissions1 to be effective for the period beginning on such date of enactment1 and ending on ,december #ca1 #bjbb4 ,any payment due under section #aad7;f77#a77;,d7 shall not be due until the due date of the first royalty payments for nonsubscription broadcast transmissions that are determined1 after the date of the enactment of the ,fair ,play ,fair ,pay ,act of #bjag1 by the ,copyright ,royalty ,judges4 ,thereafter1 such proceeding shall be repeated in each subsequent fifth calendar year4 4 #d4 ,ensuring platform parity 7a7 ,uniform rate standard ,section #aad7;f7 of title #ag1 ,united ,states ,code1 is amended-- 7#a7 by striking paragraphs 7#a7 and 7#b7 and inserting the following3 7#a7 7,a7 ,proceedings under chapter #h shall determine reasonable rates and terms of royalty payments for transmissions subject to statutory licensing under subsection 7d77#b7 during the #e-year period beginning on ,january #a of the second year following the year in which the proceedings are to be commenced pursuant to subparagraph 7,a7 or 7,b7 of section #hjd7;b77#c71 as the case may be1 or such other period as the parties may agree4 ,the parties to each proceeding shall bear their own costs4 7,b7 ,the schedule of reasonable rates and terms determined by the ,copyright ,royalty ,judges shall1 subject to paragraph 7#b71 be binding on all copyright owners of sound recordings and entities performing sound recordings affected by this paragraph during the #e-year period specified in subparagraph 7,a71 or such other period as the parties may agree4 ,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 service1 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 consumers4 ,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 seller4 ,in determining such rates and terms1 the ,copyright ,royalty ,judges-- 7i7 shall base their decision on economic1 competitive1 and programming information presented by the parties1 including-- 7,i7 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 recordings2 and 7,,ii7 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 contribution1 technological contribution1 capital investment1 cost1 and risk2 and 7ii7 may consider the rates and terms for comparable types of audio transmission services and comparable circumstances under voluntary license agreements4 7,c7 ,the procedures under subparagraphs 7,a7 and 7,b7 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 operational1 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 services1 or preexisting services1 as the case may be1 most recently determined under subparagraph 7,a7 or 7,b7 and chapter #h expire1 or such other period as the parties may agree4 2 and 7#b7 by redesignating paragraphs 7#c71 7#d71 and 7#e7 as paragraphs 7#b71 7#c71 and 7#d71 respectively4 7b7 ,technical and conforming amendments 7#a7 ,section #aad ,section #aad7;f7 of title #ag1 ,united ,states ,code1 as amended by subsection 7a71 is further amended in paragraph 7#d77;,c71 as so redesignated1 by striking under paragraph 7#d7 and inserting under paragraph 7#c74 7#b7 ,section #hja ,section #hja7;b77#a7 of title #ag1 ,united ,states ,code1 is amended by striking #aad7;f77#a77;,b71 #aae1 and inserting #aae4 7#c7 ,section #hjd ,section #hjd7;b77#c77;,c7 of title #ag1 ,united ,states ,code1 is amended-- 7,a7 in clause 7i71 by striking and #aad7;f77#b77;,c72 7,b7 in clause 7iii77,,ii71 by striking #aad7;f77#d77;,b77ii7 and inserting #aad7;f77#c77;,b77ii72 and 7,c7 in clause 7iv71 by striking or #aad7;f77#b77;,c71 as the case may be4 #e4 ,special protection for small broadcasters1 public and educational radio1 religious services1 and incidental use of music 7a7 ,special ,protection for ,small ,broadcasters ,section #aad7;f77#a7 of title #ag1 ,united ,states ,code1 as amended by section #d7;a71 is further amended by inserting at the end the following new subparagraph3 7,d7 7i7 ,notwithstanding the provisions of subparagraphs 7,a7 through 7,c71 the royalty rate for nonsubscription broadcast transmissions by each individual terrestrial broadcast station licensed as such by the ,federal ,communications ,commission that is not a public broadcasting entity as defined in section #aah7;f7 and that has revenues in any calendar year of less than #a1jjj1jjj shall be #ejj per year for any such year4 ,for purposes of such determination1 such revenues shall include all revenues from the operation of the station1 calculated in accordance with generally accepted accounting principles in the ,united ,states4 ,in the case of affiliated broadcast stations1 revenues shall be allocated reasonably to individual stations associated with those revenues4 4 7b7 ,special ,protection for ,public ,broadcasters1 ,college ,radio1 and other ,noncommercial ,stations ,subparagraph 7,d7 of section #aad7;f77#a7 of title #ag1 ,united ,states ,code1 as added by subsection 7a71 is amended by inserting at the end the following new clauses3 7ii7 ,notwithstanding the provisions of subparagraphs 7,a7 through 7,c71 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 #aah7;f7 shall be #ajj per year4 7iii7 ,the royalty rates specified in clauses 7i7 and 7ii7 shall not be admissible as evidence or otherwise taken into account in determining royalty rates in a proceeding under chapter #h1 or in any other administrative1 judicial1 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 recordings1 the determination of terms or conditions related thereto1 or the establishment of notice or recordkeeping requirements4 4 7c7 ,no ,royalties for ,religious ,services or ,incidental ,uses of ,music ,section #aad7;d77#a7 of title #ag1 ,united ,states ,code1 as amended by section #b7;b71 is further amended by striking subparagraph 7,a7 and inserting the following3 7,a7 a nonsubscription broadcast transmission of-- 7i7 services at a place of worship or other religious assembly2 or 7ii7 an incidental use of a sound recording of a musical work2 4 7d7 ,technical correction ,section #aah7;f7 of title #ag1 ,united ,states ,code1 is amended by striking section #cig of title #dg and inserting section #cig of the ,communications ,act of #aicd 7#dg ,u4,s4,c4 #cig74 #f4 ,distribution of certain royalties ,section #aad7;g7 of title #ag1 ,united ,states ,code1 is amended-- 7#a7 in paragraph 7#a71 by inserting or in the case of a transmission to which paragraph 7#e7 applies after this section2 and 7#b7 by adding at the end the following new paragraph3 7#e7 ,notwithstanding paragraph 7#a71 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 7d77#b7 extends to such entity's transmissions otherwise licensable under a statutory license in accordance with subsection 7f71 such entity shall pay to the agent designated to distribute statutory licensing receipts from the licensing of transmissions in accordance with subsection 7f71 #ej percent of the total royalties that such entity is required1 pursuant to the applicable license agreement1 to pay for such transmissions otherwise licensable under a statutory license in accordance with subsection 7f74 ,that agent shall distribute such payments in proportion to the distributions provided in subparagraphs 7,b7 through 7,d7 of paragraph 7#b71 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 entity4 4 #g4 ,equitable treatment of legacy sound recordings 7a7 ,payment for use of certain sound recordings ,section #aad7;f77#c7 of title #ag1 ,united ,states ,code1 as so redesignated1 is amended by adding at the end the following3 7,d7 7i7 ,any person publicly performing sound recordings protected under this title by means of transmissions under a statutory license under this section1 or making reproductions of such sound recordings under section #aab7;e71 shall make royalty payments for transmissions that person makes of sound recordings that were fixed before ,february #ae1 #aigb1 and reproductions that person makes of those sound recordings under the circumstances described in section #aab7;e77#a71 in the same manner as such person does for sound recordings that are protected under this title4 7ii7 ,if a person fails to make royalty payments described in clause 7i7 for sound recordings fixed before ,february #ae1 #aigb1 there shall be available1 in addition to any remedy that may be available under the laws of any ,state1 a civil action in an appropriate ,united ,states district court for recovery limited to the payments described in clause 7i71 in addition to interest1 costs1 and attorneys' fees4 ,any such recovery that is obtained shall be offset against any recovery for such violation that may be available under the laws of any ,state4 7iii7 ,no action may be brought under the laws of any ,state against a transmitting entity alleging infringement of a right equivalent to the right granted in section #ajf7f7 based on a public performance of a sound recording fixed before ,february #ae1 #aigb1 or alleging infringement of a right equivalent to the right granted in section #ajf7a7 based on a reproduction of such a sound recording1 if-- 7,i7 the performance would have been subject to statutory licensing under subsection 7d77#b7 if the sound recording had been first fixed on or after ,february #ae1 #aigb2 7,,ii7 the reproduction would have been subject to statutory licensing under section #aab7;e77#a7 if the sound recording had been first fixed on or after ,february #ae1 #aigb2 7,,iii7 the transmitting entity has satisfied the requirements for statutory licensing under subparagraph 7,b7 and section #aab7;e77#f72 and 7,,iv7 the applicable royalty was paid and accounted for under this subparagraph4 7iv7 ,this subparagraph does not confer copyright protection under this title upon sound recordings that were fixed before ,february #ae1 #aigb4 ,such sound recordings are subject to the protection available under the laws of the ,states1 and except as provided in clause 7iii71 are not subject to any limitation of rights or remedies1 or any defense1 provided under this title4 7v7 ,this subparagraph shall have no effect with respect to any public performance that is made of a sound recording1 or reproduction that is made of a sound recording under the circumstances described in section #aab7;e77#a71 on or after ,february #ae1 #bjfg4 4 7b7 ,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 ,act4 #h4 ,no harmful effects on songwriters 7a7 ,no adverse effect on license fees for underlying musical works2 necessity for other licenses 7#a7 ,in general ,section #aad7;i7 of title #ag1 ,united ,states ,code1 is amended to read as follows3 7i7 ,no adverse effect on license fees for underlying musical works2 necessity for other licenses 7#a7 ,no adverse effect on license fees for underlying musical works ,license fees payable for the public performance of sound recordings under section #ajf7f7 shall not be cited1 taken into account1 or otherwise used in any administrative1 judicial1 or other governmental forum or proceeding1 or otherwise1 to set or adjust the license fees payable to copyright owners of musical works or their representatives for the public performance of their works1 for the purpose of reducing or adversely affecting such license fees4 ,license fees payable to copyright owners for the public performance of their musical works shall not be reduced or adversely affected in any respect as a result of the rights granted by section #ajf7f74 7#b7 ,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 #ajf7f7 to perform the work publicly1 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 recording4 ,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 owner4 4 7#b7 ,conforming amendment ,section #aad7;d77#c77;,c7 of title #ag1 ,united ,states ,code1 is hereby repealed4 7b7 ,public performance rights and royalties ,nothing in this ,act1 or the amendments made by this ,act1 shall adversely affect in any respect the public performance rights of or royalties payable to songwriters or copyright owners of musical works4 7c7 ,preservation of royalties on underlying works publicly performed by terrestrial broadcast stations ,section #aad7;f7 of title #ag1 ,united ,states ,code1 as amended by section #d7;a71 is further amended by adding at the end the following new paragraph3 7#e7 ,notwithstanding any other provision of this section1 under no circumstances shall the rates established by the ,copyright ,royalty ,judges for the public performance of sound recordings be cited1 taken into account1 or otherwise used in any administrative1 judicial1 or other governmental forum or proceeding1 or otherwise1 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 stations1 and such license fees for the public performance of musical works shall be independent of license fees paid for the public performance of sound recordings4 4 #i4 ,allocation of payments to music producers 7a7 ,letter of direction ,section #aad7;g7 of title #ag1 ,united ,states ,code1 as amended by section #f1 is further amended by adding at the end the following new paragraph3 7#f7 ,letter of direction ,a collective designated by the ,copyright ,royalty ,judges to distribute receipts from the licensing of transmissions in accordance with subsection 7f7 shall adopt and reasonably implement a policy that provides1 in circumstances determined by the collective to be appropriate1 for acceptance of instructions from a payee identified in subparagraph 7,a7 or 7,d7 of paragraph 7#b7 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 producer1 mixer1 or sound engineer who was part of the creative process that created the sound recording 7in this section1 referred to as a letter of direction74 ,to the extent that the collective accepts a letter of direction1 the person entitled to payment pursuant to such letter of direction shall1 during the time such letter of direction is in effect and followed by the collective1 be treated for all purposes as the owner of the right to receive such payment4 ,this paragraph shall not be interpreted to imply that a collective cannot accept or act upon payment instructions in other circumstances4 4 7b7 ,additional provisions for recordings fixed before ,november #a1 #aiie ,section #aad7;g7 of title #ag1 ,united ,states ,code1 as amended by subsection 7a71 is further amended by adding at the end the following new paragraph3 7#g7 ,sound recordings fixed before ,november #a1 #aiie 7,a7 ,payment absent letter of direction ,a collective designated by the ,copyright ,royalty ,judges to distribute receipts from the licensing of transmissions in accordance with subsection 7f7 shall adopt and reasonably implement a policy that provides1 in circumstances determined by the collective to be appropriate1 for deduction of #b percent of the receipts from the licensing of transmissions of a sound recording fixed before ,november #a1 #aiie1 from receipts otherwise payable to the recording artist or artists featured on such sound recording 7or the persons conveying rights in the artists' performance in the sound recordings7 pursuant to paragraph 7#b77;,d7 7which leaves the recording artist or artists featured on such sound recording 7or the persons conveying rights in the artists' performance in the sound recordings7 #dc percent of the total receipts paid pursuant to paragraph 7#b77 and distribution of such amount to one or more persons described in subparagraph 7,b71 after deduction of costs as described in paragraph 7#c7 or 7#d71 as applicable1 if each of the following requirements is met3 7i7 ,certification of attempt to obtain a letter of direction ,a person described in subparagraph 7,b7 certified to the collective1 under penalty of perjury1 that-- 7,i7 for a period of at least #d months1 that person made reasonable efforts to contact the artist payee for such sound recording to request and obtain a letter of direction instructing the collective to pay a portion of the royalties from the featured recording artist or artists to that person2 and 7,,ii7 during the period beginning on the date that person began the reasonable efforts described in subclause 7,i7 and ending on date of that person's certification to the collective1 the artist payee did not definitively affirm or deny the request for a letter of direction4 7ii7 ,collective attempt to contact artist ,after receipt of the certification described in clause 7i7 and for a period of at least #d months before the collective's first distribution to the person described in subparagraph 7,b71 the collective attempted to notify the artist payee of the certification made by the person described in subparagraph 7,b7 in a manner reasonably determined by the collective4 7iii7 ,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 #aj business days before the date on which the first distribution is made4 7,b7 ,eligibility for payment ,a person shall be eligible for payment under subparagraph 7,a7 if such person-- 7i7 is a producer1 mixer1 or sound engineer of the relevant sound recording2 7ii7 has entered into a written contract with a record company involved in the creation or lawful exploitation of the relevant sound recording1 or with the recording artist or artists featured on such sound recording 7or the persons conveying rights in the artists performance in the sound recordings71 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 7or the persons conveying rights in the artists performance in the sound recordings72 7iii7 made a contribution1 of a nature subject to copyright protection under section #ajb1 to the creation of the relevant sound recording2 and 7iv7 submits a written certification to the collective stating1 under penalty of perjury1 that such person meets the requirements in clauses 7i7 through 7iii7 and includes a true copy of the contract described in clause 7ii74 7,c7 ,multiple certifications ,subject to subparagraph 7,d71 in a case in which more than one person described in subparagraph 7,b7 has met the requirements for a distribution pursuant to subparagraph 7,a7 with respect to a sound recording as of the date that is #aj business days before the date on which a distribution is made1 the collective shall divide the #b percent distribution equally among all such persons4 7,d7 ,objection to payment ,not later than #aj days after the collective receives from the artist payee a written objection to a distribution made pursuant to subparagraph 7,a71 the collective shall cease making any further payment related to such distribution4 ,in any case in which the collective has made one or more distributions pursuant to subparagraph 7,a7 to a person described in subparagraph 7,b7 before the date that is #aj business days after the date on which the collective receives an objection by the artist payee to such distribution1 the objection shall not affect that person's entitlement to any distribution made before the collective ceases such distribution pursuant to this subparagraph4 7,e7 ,ownership of the right to receive payments ,to the extent that the collective determines that a distribution will be made pursuant to subparagraph 7,a7 to a person described in subparagraph 7,b71 such person shall during the period of such distribution be treated for all purposes as the owner of the right to receive such payments4 7,f7 ,artist payee defined ,in this paragraph1 the term artist payee means a person1 other than a person described in subparagraph 7,b71 who owns the right to receive all or part of the receipts payable under paragraph 7#b77;,d7 with respect to a sound recording4 ,in a case in which there are multiple artist payees with respect to a sound recording1 an objection by one such payee shall apply only to that payee's share of the receipts payable under paragraph 7#b77;,d71 and does not preclude payment under subparagraph 7,a7 from the share of an artist payee that does not object4 4 7c7 ,technical and conforming amendments ,section #aad7;g7 of title #ag1 ,united ,states ,code1 as amended by subsections 7a7 and 7b71 is further amended-- 7#a7 in paragraph 7#b71 by striking ,an agent designated and inserting ,except as provided for in paragraph 7#g71 a collective designated by the ,copyright ,royalty ,judges2 7#b7 in paragraph 7#c7-- 7,a7 by striking agent designated and inserting collective designated by the ,copyright ,royalty ,judges2 and 7,b7 by striking agent and inserting collective1 each place it appears2 and 7#c7 in paragraph 7#d71 by striking agent and inserting collective1 each place it appears4 #aj4 ,effective date ,this ,act1 and the amendments made by this ,act1 shall take effect on the date of enactment of this ,act1 and except as provided in the amendment made by section #c1 shall apply to any proceeding that is pending on1 or commenced on or after1 such effective date4