1 2 3 4 5 6 7 8 9 10 a work by the reception of a broadcast, cable, sat ellite, or other transmission, unless “(A) an admission fee is charged specifi cally to see or hear the transmission, or "(B) the transmission is not properly licensed, except that this paragraph shall apply in the case of a performance or display in a commercial establish ment only if the performance or display is incidental to the main purpose of the establishment;". 11 SEC. 3. BINDING ARBITRATION OF RATE DISPUTES INVOLV. 12 13 ING PERFORMING RIGHTS SOCIETIES. (a) IN GENERAL.-Section 504 of title 17, United 14 States Code, is amended by adding at the end the follow 15 ing new subsection: 16 "(d) PERFORMING RIGHTS SOCIETIES; BINDING AR 17 BITRATION.— 18 19 "(1) ARBITRATION OF DISPUTES PRIOR TO COURT ACTION. "(A) ARBITRATION.-(i) If a general music user and a performing rights society are unable to agree on the appropriate fee to be paid for the user's past or future performance of musical works in the repertoire of the performing rights society, the general music user shall, in HR 789 I lieu of any other dispute-resolution mechanism established by any judgment or decree governing the operation of the performing rights society, be entitled to binding arbitration of such disagreement pursuant to the rules of the American Arbitration Association. The music user may initiate such arbitration. "(ii) The arbitrator in such binding arbitration shall determine a fair and reasonable fee for the general music user's past and future performance of musical works in such society's repertoire and shall determine whether the user's past performances of such musical works, if any, infringed the copyrights of works in the society's repertoire. If the arbitrator determines that the general music user's past performances of such musical works infringed the copyrights of works in the society's repertoire, the arbitra tor shall impose a penalty for such infringement. Such penalty shall not exceed the arbitrator's determination of the fair and reasonable license fee for the performances at issue. "(B) DEFINITION.-For purposes of this paragraph, a ‘general music user' is any person who performs musical works publicly but is not HR 789 IH 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2 2 2 2 2 2 22 23 engaged in the transmission of musical works to the general public or to subscribers through broadcast, cable, satellite, or other transmission. For purposes of this paragraph, trans missions within a single commercial establishment or within establishments under common ownership or control are not transmissions to the general public. "(C) ENFORCEMENT OF ARBITRATOR'S DETERMINATIONS.-An arbitrator's determination under this paragraph is binding on the parties and may be enforced pursuant to sections 9 through 13 of title 9. "(2) COURT-ANNEXED ARBITRATION.-In any civil action for infringement of the right granted in section 106(4) involving a musical work that is in the repertoire of a performing rights society, if the defendant admits the prior public performance of one or more works in the repertoire of the performing rights society but contests the amount of the license fee demanded by such society for such performance, the dispute shall, if requested by the defendant, be submitted to arbitration under section 24 652(e) of title 28. In such arbitration proceeding, 25 the arbitrator shall determine the amount owed by HR 789 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 the defendant to the performing rights society for all past public performances of musical works in the society's repertoire. Such amount shall not exceed two times the amount of the blanket license fee that would be applied by the society to the defendant for the year or years in which the performances occurred. In addition, the arbitrator shall, if requested by the defendant, determine a fair and reasonable license fee for the defendant's future public performances of the musical works in such society's rep ertoire. "(3) TERM OF LICENSE FEE DETERMINATION.—In any arbitration proceeding initiated under this subsection, the arbitrator's determination of a fair and reasonable license fee for the performance of the music in the repertoire of the performing rights society concerned shall apply for a period of not less than 3 years nor more than 5 years after the date of the arbitrator's determination.". (b) ACTIONS THAT SHALL BE REFERRED TO ARBI21 TRATION.-Section 652 of title 28, United States Code, 22 is amended by adding at the end the following: 23 "(e) ACTIONS THAT SHALL BE REFERRED TO ARBI24 TRATION.-In any civil action for infringement of the 25 right granted in section 106(4) of title 17 involving a mu 1 sical work that is in the repertoire of a performing rights 2 society, if the defendant admits the public performance of 3 any musical work in the repertoire of the performing 4 rights society but contests the amount of the license fee 5 demanded for such performance by the society, the district 6 court shall, if requested by the defendant, refer the dispute 7 to arbitration, which shall be conducted in accordance with 8 section 504(d)(2) of title 17. Each district court shall es9 tablish procedures by local rule authorizing the use of ar10 bitration under this subsection. The definitions set forth 11 in title 17 apply to the terms used in this subsection.". 12 SEC. 4. RADIO PER PROGRAMMING PERIOD LICENSE. 13 Section 504 of title 17, United States Code, as 14 amended by section 3 of this Act, is further amended by 15 adding at the end thereof the following new subsection: "(e) RADIO PER PROGRAMMING PERIOD LI 16 CENSES. “(1) IN GENERAL.-Each performing rights society shall offer, to any radio broadcaster that so requests, a per programming period license to perform nondramatic musical works in the repertoire of the performing rights society. Such license shall be of fered on reasonable terms and conditions that provide an economically and administratively viable al ⚫HR 789 IH |