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HR 5285 IH

To amend title 17, United States Code, with respect to royalty fees for webcasting, and for other purposes.

JULY 26, 2002

Mr. INSLEE (for himself, Mr. NETHERCUTT, Mr. BOUCHER, Mr. MANZULLO, Mr. MORAN of Virginia, Mrs. MINK of Hawaii, Mr. LARSEN of Washington, Mr. KUCINICH, Mr. KLECZKA, Mr. LEACH, Ms. LOFGREN, Ms. BROWN of Florida, Mr. DICKS, and Mr. SMITH of Washington) introduced the following bill; which was referred to the Committee on the Judiciary

To amend title 17, United States Code, with respect to royalty fees for webcasting, 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 `Internet Radio Fairness Act'.

SEC. 2. APPLICABILITY OF ROYALTY RATES TO SMALL BUSINESS CONCERNS.

(a) INAPPLICABILITY OF DETERMINATION OF JULY 8, 2002- The determination by the Librarian of Congress of rates and terms for the digital performance of sound recordings and ephemeral recordings of July 8, 2002, pursuant to section 112(e) and section 114(f)(2)(B) of title 17, United States Code, shall not apply to transmissions and ephemeral recordings by small entities.

(b) FUTURE PROCEEDINGS- The first determination of terms and rates of royalty payments that is made pursuant to section 114(f)(2)(B) of title 17, United States Code, after the enactment of this Act shall apply to transmissions (to which such section applies) that are made by small business concerns during the period beginning on the date of the enactment of the Digital Millennium Copyright Act and ending on the date provided for in that determination.

(c) VOLUNTARY NEGOTIATIONS- Nothing in this section shall affect the participation of small entities in voluntary negotiation proceedings under section 114(f)(2)(A) and (C)(i) of title 17, United States Code.

SEC. 3. STANDARD FOR DETERMINING RATES.

Section 114(f)(2)(B) of title 17, United States Code, is amended--

(1) by striking `Such rates and terms shall distinguish' and all that follows through `capital investment, cost, and risk.'; and

(2) by inserting after `as the parties may agree.' the following: `The copyright arbitration royalty panel shall establish rates and terms in accordance with the objectives set forth in section 801(b)(1).'.

SEC. 4. COSTS OF PROCEEDINGS; REGULATING FLEXIBILITY.

(a) COSTS OF PROCEEDINGS- Section 802(c) of title 17, United States Code, is amended--

(1) by inserting after `In ratemaking proceedings, the parties to the proceedings' the following: `, except for small entities that are parties to ratemaking proceedings under section 114(f)(2)(B),'; and

(2) by adding at the end the following: `In this subsection, the term `small entity' means a small business, small organization, or small governmental jurisdiction, as those terms are defined in section 601 of title 5.'.

(b) REGULATING FLEXIBILITY- Section 701(e) of title 17, United States Code, is amended by inserting before the period `and to the provisions of chapter 6 of title 5'.

SEC. 5. ELIMINATION OF CERTAIN STATUTORY LICENSES FOR EPHEMERAL RECORDINGS.

(a) ELIMINATION OF STATUTORY LICENSE- Section 112(a) of title 17, United States Code, is amended by adding at the end the following:

`(3) Notwithstanding the provisions of section 106 and paragraph (1) of this subsection, and except in the case of a motion picture or other audiovisual work, it is not an infringement of copyright for a transmitting organization entitled to transmit to the public a performance or display of a work, under a license, including a statutory license under section 114(f), or transfer of the copyright or for a transmitting organization that is a broadcast radio station licensed as such by the Federal Communications Commission and that makes a broadcast transmission of a sound recording in a digital format on a nonsubscription basis, to make one or more copies or phonorecords of that work, if--

`(A) each copy or phonorecord is retained and used solely by the transmitting organization that made it; and

`(B) each copy or phonorecord is used solely for the purpose of making the transmitting organization's own transmissions or for purposes of archival preservation or security.'.

(b) CONFORMING AMENDMENTS- Section 112(e) of title 17, United States Code, is amended--

(1) by striking in paragraph (1) `or under a statutory license in accordance with section 114(f)'; and

(2) by striking in paragraph (1)(B) `a statutory license in accordance with section 114(f) or'.

(c) EFFECTIVE DATE- The amendments made by subsection (a) take effect on January 1, 2003.

SEC. 6. DEFINITION.

In this Act, the term `small entity' means a small business, small organization, or small governmental jurisdiction, as those terms are defined in section 601 of title 5, United States Code.

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