Copyright Law Revision

(1) Subject to the provisions of subsections (a) and (b), but notwithstanding the provisions of clauses (2) and (4) of this subsection, the secondary transmission to the public by a cable system of a primary transmission made by a broadcast station licensed by the Federal Communications Commission and embodying a performance or display of a work is subject to compulsory licensing under the conditions specified by subsection (d), in the following cases:

(A) Where the signals comprising the primary transmission are exclusively aural; or

(B) Where the reference point of the cable system is within the local service area of the primary transmitter; or

(C) Where the reference point of the cable system is outside any United States television market, as defined in accordance with subsection (f).

(2) Subject to the provisions of subsections (a), (b), and (e) and of clauses (1) and (4) of this subsection, the secondary transmission to the public by a cable system of a primary transmission made by a broadcast station licensed by the Federal Communications Commission and embodying a performance or display of a work is subject to compulsory licensing under the conditions specified by subsection (d), in the following cases:

(A) Where the reference point of the cable system is within a United States television market, as defined in accordance with subsection (f), but the signal of the primary transmitter—

(i) when added to the signals of those television broadcast stations whose local service areas are within that market, and of any other television broadcast stations whose signals are being regularly and lawfully used under this section by the cable system for secondary transmissions, does not exceed the number of signals of stations specified by clause (3) as comprising adequate television service for that market; and

(ii) is the signal of a television broadcast station of the type whose lack deprives the market of adequate service in accordance with the standards specified by clause (3), and is closer to the market than the signal of any other station of the same type, whose local service area is not within the market; or

(B) Where, notwithstanding the provisions of subclause (A),

the cable system or its predecessor in title had, before January 1, 1971, in accordance with the applicable rules of the Federal Communications Commission, made regular secondary transmissions of the transmissions of the primary transmitter or its predecessor in title. And provided that such regular secondary transmissions shall be exempt from the requirements of clauses (4) (A) and (4) (B) of subsection (c).

(3) For the purposes of this subsection, “adequate television serv9 ice" within a United States television market is defined according to 10 the numerical rank of the market and the number and type of those 11 operating broadcast stations licensed by the Federal Communications 12 Commission whose local service areas are within that market. Con13 struction permits shall not be included in any computation for this 14 purpose.

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(A) In markets 1 through 50, adequate television service comprises the network stations transmitting the programs of all the television networks providing national transmissions, three independent commercial stations, and one noncommercial educational station.

(B) In markets 51 and below, adequate television service comprises the network stations transmitting the programs of all the television networks providing national transmissions, two independent commercial stations, and one noncommercial educational station.

(4) Subject to the provisions of subsections (a) and (b) and of 26 clause (1) of this subsection, but notwithstanding the provisions of 27 clause (2) of this subsection, the secondary transmission to the public 28 by a cable system of a primary transmission made by a broadcast 29 station licensed by the Federal Communications Commission and 30 embodying a performance or display of a work is actionable as an 31 act of infringement under section 501, and is fully subject to the 32 remedies provided by sections 502 through 506, in the following

(A) Where the cable system, at least one month before the date of the secondary transmission, has not recorded the notice specified by subsection (d); or

(B) Where the reference point of the cable system falls within a circle defined by a radius of thirty-five air miles, or within a radius as subsequently determined by the Federal Communications Commission, after notice and public hearings, from the cen

(3) The royalty fees thus deposited shall be distributed in accordance with the following procedures:

(A) During the month of July in each year, every person claiming to be entitled to compulsory license fees for secondary transmissions made during the preceding twelve-month period shall file a claim with the Register of Copyrights, in accordance with requirements that Register shall prescribe by regulation. Notwithstanding any provisions of the antitrust laws (the Act of October 15, 1914, 38 Stat. 730, and any amendments of any such laws), for purposes of this clause any claimants may agree among themselves as to the proportionate division of compulsory licensing fees among them, may lump their claims together and file them jointly or as a single claim, or may designate a common agent to receive payment on their behalf.

(B) After the first day of August of each year, the Register of Copyrights shall determine whether there exists a controversy concerning the distribution of royalty fees deposited under clause (2). If he determines that no such controversy exists, he shall, after deducting his reasonable administrative costs under this section, distribute such fees to the copyright owners entitled, or to their designated agents. If he finds the existence of a controversy he shall certify to that fact and proceed to constitute a panel of the Copyright Royalty Tribunal in accordance with section 803. In such cases the reasonable administrative costs of the Register under this section shall be deducted prior to distribution of the royalty fee by the tribunal.

(C) After deducting the costs of administration, 15 percent of the royalty fees collected shall be maintained in a special fund, and shall be distributed, according to regulations prescribed by the Register of Copyrights, to the copyright owners, or their designated agents, of musical works.

(D) During the pendency of any proceeding under this subsection, the Register of Copyrights or the Copyright Royalty Tribunal shall withhold from distribution an amount sufficient to satisfy all claims with respect to which a controversy exists, but shall have discretion to proceed to distribute any amounts that are not in controversy. (e) PREEMPTION OF OTHER LAWS AND REGULATIONS.—

(1) Except as provided by clause (2), on and after January 1, 1975, all Federal, State, and local laws and regulations restricting the right of a cable system to make secondary transmissions in any case made 39 subject to compulsory licensing by this section are preempted by this title. Thereafter, unless specifically authorized by this subsection, the

1 Federal Communications Commission or any other governmental agency or instrumentality shall not issue or enforce any order, notice, 3 rule, or regulation requiring a cable system to obtain authority of the 4 copyright owner as a condition for making any secondary transmis5 sion, or prohibiting a cable system from making secondary trans6 missions within an area where such secondary transmissions are per7 missible under the compulsory licensing provisions of subsection (c). 8 However, nothing in this section shall be construed to preempt the 9 authority of the Federal Communications Commission, with respect to a cable system whose reference point is within a United States television market

(A) to prevent the cable system from further transmitting a primary transmission made by a television broadcast station, whose local service area is outside the market, on the same day that another station licensed by the Commission, whose local service area is within the market, transmits the same transmission program;

(B) to compel the cable system to make secondary transmissions of primary transmissions by television broadcast stations licensed by the Commission, whose local service area is within the market; and

(2) Notwithstanding the provisions of clause (1), the Federal Communications Commission shall have the responsibility to establish various criteria and definitions as provided by subsection (f), and shall have the authority in the public interest, and in accordance with requirements that the Commission shall prescribe by regulation, to do the following:

(A) to permit a cable system to substitute, for the signal of the station specified in the compulsory licensing provisions of paragraph (ii) of subsection (c) (2) (A), a more distant signal;

(B) to increase the number of signals of stations specified in the compulsory licensing provisions of clause (3) of subsection (c) as comprising adequate television service for a United States television market; and

(C) to permit a cable system that is required to delete a signal under the provisions of clause (4) of subsection (c), to substitute the signal of another station of the same kind and within the

quantitative limits specified by the compulsory licensing provi

sions of clause (3) of subsection (c).

(f) DEFINITIONS.

(1) As used in this section, the following terms and their variant forms mean the following:

(A) A "primary transmission" is a transmission made to the public by the transmitting facility whose signals are being received and further transmitted by the secondary transmission service, regardless of where or when the performance or display was first transmitted.

(B) A "secondary transmission" is the further transmitting of a primary transmission simultaneously with the primary transmission.

(C) A "cable system" is a facility operated for purposes of commercial advantage that receives signals transmitted by one or more television broadcast stations licensed by the Federal Communications Commission and simultaneously makes secondary transmissions of such signals by wires, cables, or other communications channels to subscribing members of the public who pay for such service.

(2) As used in this section, the following terms and their variant forms have the meanings given to them in definitions that the Federal Communications Commission shall publish in the Federal Register 24 during July, 1974, and annually in July thereafter. Said definitions shall have binding effect upon the 1st day of January of the year fol26 lowing their publication; they shall be based upon the general criteria 27 provided by this clause, and upon specific criteria adopted by the Com28 mission in the public interest and in the light of changing industry practices and communications technology. Annual publication of the definitions shall be accompanied by publication of lists specifying the reference points for all cable systems in the United States, the numeri

cal rank of all United States television markets, and all network sta33 tions, independent commercial stations, and noncommercial educa34 tional stations, together with maps showing the specific geographical 35 location of all said reference points, the area encompassed by all said United States television markets, and the local service areas of all said stations.

(A) The "reference point" of a cable system is the longitude and latitude, expressed in degrees, minutes, and seconds, of a point repre40 senting the effective center of operations of a cable system, taking into

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Copyright Law Revision: Hearings Before the Subcommittee on Patents ...