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within 30 days after the publication of the decision in the Fed-
eral Register. The pendency of an appeal under this paragraph
shall not relieve satellite carriers of the obligation under sub-
section (b)(1) to deposit the statement of account and royalty
fees specified in that subsection. The court shall have jurisdic-
tion to modify or vacate a decision of the Tribunal only if it
finds, on the basis of the record before the Tribunal and the
statutory criteria set forth in paragraph (3)(D), that the Arbi-
tration Panel or the Tribunal acted in an arbitrary manner. If
the court modifies the decision of the Tribunal, the court shall
have jurisdiction to enter its own determination with respect
to royalty fees, to order the repayment of any excess fees de-
posited under subsection (b)(1)(B), and to order the payment of
any underpaid fees, and the interest pertaining respectively
thereto, in accordance with its final judgment. The court may
further vacate the decision of the Tribunal and remand the
case for arbitration proceedings in accordance with paragraph
(3).

(d) DEFINITIONS.-As used in this section

(1) DISTRIBUTOR.-The term "distributor" means an entity which contracts to distribute secondary transmissions from a satellite carrier and, either as a single channel or in a package with other programming, provides the secondary transmission either directly to individual subscribers for private home viewing or indirectly through other program distribution entities.

(2) NETWORK STATION.-The term "network station" has the meaning given that term in section 111(f) of this title, and includes any translator station or terrestrial satellite station that rebroadcasts all or substantially all of the programming broadcast by a network station.

(3) PRIMARY NETWORK STATION.-The term "primary network station" means a network station that broadcasts or rebroadcasts the basic programming service of a particular national network.

(4) PRIMARY TRANSMISSION.-The term "primary transmission" has the meaning given that term in section 111(f) of this title.

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(5) PRIVATE HOME VIEWING.-The term "private home viewing" means the viewing, for private use in a household by means of satellite reception equipment which is operated by an individual in that household and which serves only such household, of a secondary transmission delivered by a satellite carrier of a primary transmission of a television station licensed by the Federal Communications Commission.

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(6) SATELLITE CARRIER.-The term "satellite carrier" means an entity that uses the facilities of a satellite or satellite service licensed by the Federal Communications Commission, to establish and operate a channel of communications for point-tomultipoint distribution of television station signals, and that owns or leases a capacity or service on a satellite in order to provide such point-to-multipoint distribution, except to the extent that such entity provides such distribution pursuant to

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tariff under the Communications Act of 1934, other than for private home viewing.

(7) SECONDARY TRANSMISSION.-The term "secondary transmission" has the meaning given that term in section 111(f) of this title.

(8) SUBSCRIBER.-The term "subscriber" means an individual who receives a secondary transmission service for private home viewing by means of a secondary transmission from a satellite carrier and pays a fee for the service, directly or indirectly, to the satellite carrier or to a distributor.

(9) SUPERSTATION.-The term "superstation" means a television broadcast station other than a network station, licensed by the Federal Communications Commission that is secondarily transmitted by a satellite carrier.

(10) UNSERVED HOUSEHOLD.-The term "unserved household", with respect to a particular television network, means a household that

(A) cannot receive, through the use of a conventional outdoor rooftop receiving antenna, an over-the-air signal of grade B intensity (as defined by the Federal Communications Commission) of a primary network station affiliated with that network, and

(B) has not, within 90 days before the date on which that household subscribes, either initially or on renewal, to receive secondary transmissions by a satellite carrier of a network station affiliated with that network, subscribed to a cable system that provides the signal of a primary network station affiliated with that network.

(e) EXCLUSIVITY OF THIS SECTION WITH RESPECT TO SECONDARY TRANSMISSIONS OF BROADCAST STATIONS BY SATELLITE TO MEMBERS OF THE PUBLIC.-No provision of section 111 of this title or any other law (other than this section) shall be construed to contain any authorization, exemption, or license through which secondary transmissions by satellite carrier for private home viewing of programming contained in a primary transmission made by a superstation or a network station may be made without obtaining the consent of the copyright owner.

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CHAPTER 5-COPYRIGHT INFRINGEMENT AND REMEDIES § 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118, or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright. As used in this subsection, the term "anyone" includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State action in his or her official capacity. Any State, and any such instumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of sections 205 (d) and 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.

(c) For any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station.

(d) For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111(c)(3), the following shall also have standing to sue: (i) the primary transmitter whose transmission has been altered by the cable system; and (ii) any broadcast station within whose local service area the secondary transmission occurs.

(e) With respect to any secondary transmission that is made by a satellite carrier of a primary transmission embodying the performance or display of a work and is actionable as an act of infringement under section 119(a)(5), a network station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that station.

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CHAPTER 8-COPYRIGHT ROYALTY TRIBUNAL

(§§ 801-810)

2

§ 801. Copyright Royalty Tribunal: Establishment and purpose (a) There is hereby created an independent Copyright Royalty Tribunal in the legislative branch.

(b) Subject to the provisions of this chapter, the purposes of the Tribunal shall be

(1) to make determinations concerning the adjustment of reasonable copyright royalty rates as provided in sections 115 and 116, and to make determinations as to reasonable terms and rates of royalty payments as provided in section 118. The rates

2 Added by Public Law 94-553, 90 Stat. 2594. Oct. 19, 1976; amended by Public Law 100-667, 102 Stat. 3949, Nov. 16, 1988.

applicable under sections 115 and 116 shall be calculated to achieve the following objectives:

(A) To maximize the availability of creative works to the public;

(B) To afford the copyright owner a fair return for his creative work and the copyright user a fair income under existing economic conditions;

(C) To reflect the relative roles of the copyright owner and the copyright user in the product made available to the public with respect to relative creative contribution, technological contribution, capital investment, cost, risk, and contribution to the opening of new markets for creative expression and media for their communication;

(D) To minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices.

(2) to make determinations concerning the adjustment of the copyright royalty rates in section 111 solely in accordance with the following provisions;

(A) The rates established by section 111(d)(1)(B) may be adjusted to reflect (i) national monetary inflation or deflation or (ii) changes in the average rates charged cable subscribers for the basic service of providing secondary transmissions to maintain the real constant dollar level of the royalty fee per subscriber which existed as of the date of enactment of this Act: Provided, That if the average rates charged cable system subscribers for the basic service of providing secondary transmissions are changed so that the average rates exceed national monetary inflation, no change in the rates established by section 111(d)(1)(B) shall be permitted: And provided further, That no increase in the royalty fee shall be permitted based on any reduction in the average number of distant signal equivalents per subscriber. The Commission may consider all factors relating to the maintenance of such level of payments including, as an extenuating factor, whether the cable industry has been restrained by subscriber rate regulating authorities from increasing the rates for the basic service of providing secondary transmissions.

(B) In the event that the rules and regulations of the Federal Communications Commission are amended at any time after April 15, 1976, to permit the carriage by cable systems of additional television broadcast signals beyond the local service area, of the primary transmitters of such signals, the royalty rates established by section 111(d)(1)(B) may be adjusted to insure that the rates for the additional distant signal equivalents resulting from such carriage are reasonable in the light of the changes effected by the amendment to such rules and regulations. In determining the reasonableness of rates proposed following an amendment of Federal Communications Commission rules and regulations the Copyright Royalty Tribunal shall consider, among other factors, the economic impact on copyright

owners and users: Provided, That no adjustment in royalty
rates shall be made under this subclause with respect to
any distant signal equivalent or fraction thereof represent-
ed by (i) carriage of any signal permitted under the rules
and regulations of the Federal Communications Commis-
sion in effect on April 15, 1976, or the carriage of a signal
of the same type (that is, independent, network, or non-
commercial educational) substituted for such permitted
signal, or (ii) a television broadcast signal first carried
after April 15, 1976, pursuant to an individual waiver of
the rules and regulations of the Federal Communications
Commission, as such rules and regulations were in effect
on April 15, 1976.

(C) In the event of any change in the rules and regula-
tions of the Federal Communications Commission with re-
spect to syndicated and sports program exclusivity after
April 15, 1976, the rates established by section 111(d)(1)(B)
may be adjusted to assure that such rates are reasonable
in light of the changes to such rules and regulations, but
any such adjustment shall apply only to the affected tele-
vision broadcast signals carried on those systems affected
by the change.

(D) The gross receipts limitations established by section 111(d)(1)(C) and (D) shall be adjusted to reflect national monetary inflation or deflation or changes in the average rates charged cable system subscribers for the basic service of providing secondary transmissions to maintain the real constant dollar value of the exemption provided by such section; and the royalty rate specified therein shall not be subject to adjustment; and

(3) to distribute royalty fees deposited with the Register of Copyrights under sections 111, 116, and 119(b) and to determine, in cases where controversy exists, the distribution of such fees. In determining whether a return to a copyright owner under section 116 is fair, appropriate weight shall be given to

"(i) the rates previously determined by the Tribunal to provide a fair return to the copyright owner, and

"(ii) the rates contained in any license negotiated pursuant to section 116A of this title.

(c) As soon as possible after the date of enactment of this Act, and no later than six months following such date, the President shall publish a notice announcing the initial appointments provided in section 802, and shall designate an order of seniority among the initially-appointed commissioners for purposes of section 802(b).

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