4 work, one or more of the authors is a national of a Berne Union member on the date of first publi cation, and for purposes of this paragraph, authors who are domiciled or have their habitual residence in a Berne Union member are considered nation als of that member; "(2) the work was first published in a Berne Union member, or was simultaneously published in a Berne Union member and in a foreign nation that is not a Berne Union Member, and for the purposes of this paragraph, a work is considered as having been published simultaneously in two or more nations if it has been published in one nation within thirty days of its publication in the other nation; "(3) in the case of an audiovisual work "(A) one or more of the authors is a legal entity, and that author has its headquarters in a Berne Union member; or "(B) one or more of the authors is an individual, and that author has his or her ha bitual residence or domicile in a Berne Union member; "(4) in the case of a pictorial, graphic, or sculptural work, such work is incorporated in a 5 building or other structure located in the territory of a Berne Union member; or "(5) in the case of an architectural work in the form of a building or other 3-dimensional structure, the work is erected in the territory of a Berne Union member. "A 'Berne Union member' is a country or nation that is bound by any one of the texts of the Berne Convention."; and (C) in the definition of "pictorial, graphic, and sculptural works", by inserting before the period at the end of the first sentence the following: ", other than architectural works"; (2) in section 102(a)— (A) by striking out "and" at the end of paragraph (6); (B) by striking out the period at the end of paragraph (7) and inserting in lieu thereof "; and"; and (C) by adding at the end thereof the follow ing new paragraph: "(8) architectural works."; (3) in section 104(b)— (A) by redesignating paragraph (4) as para graph (5); and 81201 6 (B) by inserting after paragraph (3) the fol lowing new paragraph (4): "(4) the work is a Berne Convention work; or"; (4) in section 108(a) (A) by inserting after the semicolon at the end of paragraph (1), "and"; (B) by striking out "; and" at the end of paragraph (2) and inserting in lieu thereof a period; and (C) by repealing paragraph (3); (5) by striking out section 116 and inserting in lieu thereof the following: 13 "§ 116. Scope of exclusive rights in nondramatic musical 14 15 16 works: Public performances by means of coin-operated phonorecord players "(a) This section applies to any nondramatic musical 17 work embodied in a phonorecord. 18 "(b)(1) In the case of a work to which this section ap 19 plies, the exclusive right under paragraph (4) of section 106 20 to perform the work publicly by means of a coin-operated phonorecord player is limited to the extent that paragraph (2) 22 applies. 21 23 "(2) If, within 1 year after the effective date of the 24 Berne Convention Implementation Act of 1987, the Copy25 right Royalty Tribunal, (as established by section 801, and 7 1 hereinafter referred to as the "Tribunal') certifies by publica2 tion in the Federal Register that negotiated licenses author3 ized by subsection (c) have not come into effect to provide 4 permission to use a quantity of musical works not substantial5 ly smaller than the quantity of such works performed on coin6 operated phonorecord players during the 1-year period prior 7 to the effective date of that Act, then section 116 of this title 8 as in effect on the day before the effective date of that Act 9 shall be effective with respect to musical works that are not 10 the subject of such negotiated licenses. 11 “(c)(1) Notwithstanding any other provision of law, any 12 owner of a copyright in a work to which this section applies 13 and any operator of a coin-operated phonorecord player 20 21 2225 "(A) negotiate and agree on the terms and rates. of royalty payments for the performance of such works and the proportionate division of fees paid among vari ous copyright owners; and "(B) designate common agents to negotiate, agree to, pay, or receive such royalty payments. “(2)(A) A party to a negotiation referred to in paragraph 22 (1), within the time as may be specified by a regulation of the 23 Tribunal, may determine the result of the negotiation by 24 arbitration. 1 8 "(B) The arbitration referred to in subparagraph (A) 2 shall be governed by the provisions of title 9, to the extent 3 that such title is not inconsistent with this section. 4 "(C) The parties to the negotiations shall give the Tri 5 bunal notice of any determination reached by arbitration. 6 "(D) Any determination made through arbitration shall, 7 as between the parties to the arbitration, be dispositive of the 8 issues to which it relates. 9 "(d) License agreements between one or more copyright 10 owner and one or more operator of coin-operated phonorec11 ord players, which are negotiated in accordance with subsec12 tion (c), shall be given effect in lieu of any otherwise applica13 ble determination by the Tribunal. 14 "(e) If, within 60 days after the effective date of the 15 Berne Convention Implementation Act of 1987, the Chair16 man of the Tribunal has not received notice of the date and 17 location of the first meeting between copyright owners and 18 owners of coin-operated phonorecord players, referred to in 19 subsection (c)(1), from such owners or operators, the Chair20 man shall determine and announce the date and location of 21 such meeting, but in no event shall such meeting be held 22 more than 90 days after the effective date of that Act. 23 "(f) The Tribunal shall not conduct any ratemaking ac24 tivity with respect to coin-operated phonorecord players 25 unless, at any time beginning 1-year after the effective date OS 1301 IS |