Subsection (a) of Section 114 specified that the exclusive rights of the owner of copyright in a sound recording are limited to the rights to reproduce the sound recording in copies or phonorecords, to prepare derivative works based on the copyrighted sound recording, and to distribute copies or phonorecords of the sound recording to the public. Subsection (a) states explicitly that the owner’s rights “do not include any right of performance under section 106(4).” The Committee considered at length the arguments in favor of establishing a limited performance right, in the form of a compulsory license, for copyrighted sound recordings, but concluded that the problem requires further study. It therefore added a new subsection (d) to the bill requiring the Register of Copyrights to submit to Congress, on
Subsection (b) of section 114 makes clear that statutory protection for sound recordings extends only to the particular sounds of which the recording consists, and would not prevent a separate recording of another performance in which those sounds are imitated. Thus, infringement takes place whenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by repressing, transcribing, recapturing off the air, or any other method, or by reproducing them in the soundtrack or audio portion of a motion picture or other audiovisual work. Mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another’s performance as exactly as possible.
Under section 114, the exclusive right of owner of copyright in a sound recording to prepare derivative works based on the copyrighted sound recording is recognized. However, in view of the expressed intention not to give exclusive rights against imitative or simulated performances and recordings, the Committee adopted an amendment to make clear the scope of rights under section 106(2) in this context. Section 114(b) provides that the “exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.”
Another amendment deals with the use of copyrighted sound recordings “included in educational television and radio programs * * * distributed or transmitted by or through public broadcasting entities.” This use of recordings is permissible without authorization from the owner of copyright in the sound recording, as long as “copies or phonorecords of said programs are not commercially distributed by or through public broadcasting entities to the general public.”
During the 1975 hearings, the Register of Copyrights expressed some concern that an invaluable segment of this country’s musical heritage—in the form of sound recordings—had become inaccessible to musicologists and to others for scholarly purposes. Several of the major recording companies have responded to the Register’s concern by granting blanket licenses to the Library of Congress to permit it to make single copy duplications of sound recordings maintained in the Library’s archives for research purposes. Moreover, steps are being taken to determine the feasibility of additional licensing arrangements as a means of satisfying the needs of key regional music libraries across the country. The Register has agreed to report to Congress if further legislative consideration should be undertaken.
Section 114(c) states explicitly that nothing in the provisions of section 114 should be construed to “limit or impair the exclusive right to perform publicly, by means of a phonorecord, any of the works specified by section 106(4).” This principle is already implicit in the bill, but it is restated to avoid the danger of confusion between rights in a sound recording and rights in the musical composition or other work embodied in the recording.
Section 602(12) of the Communications Act of 1934, referred to in subsec. (d)(1)(C)(iii), was subsequently amended, and section 602(12) no longer defines “multichannel video programming distributor”. However, such term is defined elsewhere in that section.
The date of the enactment of the Digital Millennium Copyright Act, referred to in subsec. (d)(2)(C)(ix), is the date of enactment of Pub. L. 105–304, which was approved
The date of enactment of the Digital Performance Right in Sound Recordings Act of 1995, referred to in subsec. (d)(4)(B)(iii), (C), is the date of enactment of Pub. L. 104–39, which was approved
The effective date of the Copyright Royalty and Distribution Reform Act of 2004, referred to in subsec. (f)(3)(A), is the effective date of Pub. L. 108–419, which is 6 months after
The Webcaster Settlement Act of 2008, referred to in subsec. (f)(4)(D), is Pub. L. 110–435,
The Webcaster Settlement Act of 2009, referred to in subsec. (f)(4)(D), is Pub. L. 111–36,
The date of the enactment of the Webcaster Settlement Act of 2009, referred to in subsec. (f)(4)(F), is the date of the enactment of Pub. L. 111–36, which was approved
2018—Subsec. (f)(1). Pub. L. 115–264, § 103(a)(1), added par. (1) and struck out former par. (1) which related to the determination of reasonable rates and terms of royalty payments for certain subscription and satellite digital audio transmissions.
Subsec. (f)(2) to (5). Pub. L. 115–264, § 103(a), redesignated pars. (3) to (5) as (2) to (4), respectively, and struck out former par. (2) which related to the determination of reasonable rates and terms of royalty payments for certain types of public performances of sound recordings.
Subsec. (f)(4)(C). Pub. L. 115–264, § 103(g)(1), substituted “under paragraph (3)” for “under paragraph (4)”.
Subsec. (g)(2). Pub. L. 115–264, § 302(c)(1), substituted “Except as provided for in paragraph (6), a nonprofit collective designated by the Copyright Royalty Judges” for “An agent designated” in introductory provisions.
Subsec. (g)(3). Pub. L. 115–264, § 302(c)(2), in introductory provisions, substituted “nonprofit collective designated by the Copyright Royalty Judges” for “nonprofit agent designated”, “another designated nonprofit collective” for “another designated agent”, “such nonprofit collective” for “such nonprofit agent”, and “of such collective” for “of such agent”.
Subsec. (g)(4). Pub. L. 115–264, § 302(c)(3), substituted “nonprofit collective” for “designated agent” and substituted “such collective” for “such agent” in two places.
Subsec. (g)(5). Pub. L. 115–264, § 302(a), added par. (5).
Subsec. (g)(6). Pub. L. 115–264, § 302(b), added par. (6).
Subsec. (g)(7). Pub. L. 115–264, § 302(c)(4), added par. (7).
Subsec. (i). Pub. L. 115–264, § 103(b), struck out subsec. (i). Text read as follows: “License fees payable for the public performance of sound recordings under section 106(6) shall not be taken into account in any administrative, judicial, or other governmental proceeding to set or adjust the royalties payable to copyright owners of musical works for the public performance of their works. It is the intent of Congress that royalties payable to copyright owners of musical works for the public performance of their works shall not be diminished in any respect as a result of the rights granted by section 106(6).”
2010—Subsec. (b). Pub. L. 111–295, § 6(f)(1), substituted “118(f)” for “118(g)”.
Subsec. (f)(2)(B). Pub. L. 111–295, § 6(b), substituted “Judges shall base their decision” for “Judges shall base its decision” in introductory provisions.
Subsec. (f)(2)(C). Pub. L. 111–295, § 5(c), substituted “eligible nonsubscription services and new subscription services” for “preexisting subscription digital audio transmission services or preexisting satellite digital radio audio services”.
2009—Subsec. (f)(5)(D). Pub. L. 111–36, § 2(1), substituted “2008, the Webcaster Settlement Act of 2009,” for “2008”.
Subsec. (f)(5)(E)(iii). Pub. L. 111–36, § 2(2), struck out “to make eligible nonsubscription transmissions and ephemeral recordings” after “therefor”.
Subsec. (f)(5)(F). Pub. L. 111–36, § 2(3), substituted “at 11:59 p.m. Eastern time on the 30th day after the date of the enactment of the Webcaster Settlement Act of 2009” for “
2008—Subsec. (f)(5)(A). Pub. L. 110–435, § 2(1), substituted “commercial” for “small commercial” wherever appearing, in first sentence substituted “for a period of not more than 11 years beginning on
Subsec. (f)(5)(B). Pub. L. 110–435, § 2(2), substituted “commercial” for “small commercial”.
Subsec. (f)(5)(C). Pub. L. 110–435, § 2(3), substituted “Copyright Royalty Judges” for “Librarian of Congress” and “webcasters” for “small webcasters” and inserted at end “This subparagraph shall not apply to the extent that the receiving agent and a webcaster that is party to an agreement entered into pursuant to subparagraph (A) expressly authorize the submission of the agreement in a proceeding under this subsection.”
Subsec. (f)(5)(D). Pub. L. 110–435, § 2(4)(B), substituted “Copyright Royalty Judges of
Pub. L. 110–435, § 2(4)(A), which directed substitution of “the Webcaster Settlement Act of 2008” for “the Small Webcasters Settlement Act of 2002”, was executed by making the substitution for “the Small Webcaster Settlement Act of 2002”, to reflect the probable intent of Congress.
Subsec. (f)(5)(F). Pub. L. 110–435, § 2(5), substituted “
2006—Subsec. (f)(1)(A). Pub. L. 109–303, § 4(b)(1), substituted “except in the case of a different transitional period provided under section 6(b)(3) of the Copyright Royalty and Distribution Reform Act of 2004, or such other period as the parties may agree.” for “except where a different transitional period is provided under section 6(b)(3) of the Copyright Royalty and Distribution Reform Act of 2004 or such other period.”
Subsec. (f)(2)(A). Pub. L. 109–303, § 4(b)(2), amended subpar. (A) generally. Prior to amendment, subpar. (A) related to rates and terms of royalty payments for subscription transmissions by eligible nonsubscription transmission services and new subscription services.
Subsec. (f)(2)(B). Pub. L. 109–303, § 4(b)(3), substituted “described in” for “negotiated under” in concluding provisions.
2004—Subsec. (f)(1)(A). Pub. L. 108–419, § 5(c)(1)(A), substituted first sentence for former first sentence which read: “No later than 30 days after the enactment of the Digital Performance Right in Sound Recordings Act of 1995, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for subscription transmissions by preexisting subscription services and transmissions by preexisting satellite digital audio radio services specified by subsection (d)(2) of this section during the period beginning on the effective date of such Act and ending on
Subsec. (f)(1)(B). Pub. L. 108–419, § 5(c)(1)(B), substituted first sentence for former first sentence which read: “In the absence of license agreements negotiated under subparagraph (A), during the 60-day period commencing 6 months after publication of the notice specified in subparagraph (A), and upon the filing of a petition in accordance with section 803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine and publish in the Federal Register a schedule of rates and terms which, subject to paragraph (3), shall be binding on all copyright owners of sound recordings and entities performing sound recordings affected by this paragraph.” and, in second sentence, substituted “Copyright Royalty Judges may consider” for “copyright arbitration royalty panel may consider” and “described” for “negotiated as provided”.
Subsec. (f)(1)(C). Pub. L. 108–419, § 5(c)(1)(C), amended subpar. (C) generally. Prior to amendment, subpar. (C) related to repetition of publication of notices of the initiation of voluntary negotiation proceedings as specified in subpar. (A) and repetition of the procedures specified in subpar. (B).
Subsec. (f)(2)(A). Pub. L. 108–419, § 5(c)(2)(A)(ii), (iii), substituted “Copyright Royalty Judges” for “Librarian of Congress” in third sentence and struck out “negotiation” after “parties to each” in fourth sentence.
Pub. L. 108–419, § 5(c)(2)(A)(i), which directed the general amendment of the first paragraph, was executed by making the amendment to first sentence of subpar. (A) to reflect the probable intent of Congress. Prior to amendment, first sentence read as follows: “No later than 30 days after the date of the enactment of the Digital Millennium Copyright Act, the Librarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for public performances of sound recordings by means of eligible nonsubscription transmissions and transmissions by new subscription services specified by subsection (d)(2) during the period beginning on the date of the enactment of such Act and ending on
Subsec. (f)(2)(B). Pub. L. 108–419, § 5(c)(2)(B)(iii), which directed substitution of “described in” for “negotiated as provided” in last sentence, could not be executed because “negotiated as provided” does not appear in text.
Pub. L. 108–419, § 5(c)(2)(B)(ii), substituted “Copyright Royalty Judges” for “copyright arbitration royalty panel” wherever appearing after first sentence.
Pub. L. 108–419, § 5(c)(2)(B)(i), substituted first sentence for former first sentence which read: “In the absence of license agreements negotiated under subparagraph (A), during the 60-day period commencing 6 months after publication of the notice specified in subparagraph (A), and upon the filing of a petition in accordance with section 803(a)(1), the Librarian of Congress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine and publish in the Federal Register a schedule of rates and terms which, subject to paragraph (3), shall be binding on all copyright owners of sound recordings and entities performing sound recordings affected by this paragraph during the period beginning on the date of the enactment of the Digital Millennium Copyright Act and ending on
Subsec. (f)(2)(C). Pub. L. 108–419, § 5(c)(2)(C), amended subpar. (C) generally. Prior to amendment, subpar. (C) related to repetition of publication of notices of the initiation of voluntary negotiation proceedings as specified in subpar. (A) and repetition of the procedures specified in subpar. (B).
Subsec. (f)(3). Pub. L. 108–419, § 5(c)(3), substituted “decision by the Librarian of Congress or determination by the Copyright Royalty Judges” for “determination by a copyright arbitration royalty panel or decision by the Librarian of Congress”.
Subsec. (f)(4). Pub. L. 108–419, § 5(c)(4), substituted “Copyright Royalty Judges” for “Librarian of Congress” in two places and inserted after first sentence in subpar. (A) “The notice and recordkeeping rules in effect on the day before the effective date of the Copyright Royalty and Distribution Reform Act of 2004 shall remain in effect unless and until new regulations are promulgated by the Copyright Royalty Judges. If new regulations are promulgated under this subparagraph, the Copyright Royalty Judges shall take into account the substance and effect of the rules in effect on the day before the effective date of the Copyright Royalty and Distribution Reform Act of 2004 and shall, to the extent practicable, avoid significant disruption of the functions of any designated agent authorized to collect and distribute royalty fees.”
2002—Subsec. (f)(5). Pub. L. 107–321, § 4, added par. (5).
Subsec. (g)(2). Pub. L. 107–321, § 5(c), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “The copyright owner of the exclusive right under section 106(6) of this title to publicly perform a sound recording by means of a digital audio transmission shall allocate to recording artists in the following manner its receipts from the statutory licensing of transmission performances of the sound recording in accordance with subsection (f) of this section:
“(A) 2½ percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Musicians (or any successor entity) to be distributed to nonfeatured musicians (whether or not members of the American Federation of Musicians) who have performed on sound recordings.
“(B) 2½ percent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by copyright owners of sound recordings and the American Federation of Television and Radio Artists (or any successor entity) to be distributed to nonfeatured vocalists (whether or not members of the American Federation of Television and Radio Artists) who have performed on sound recordings.
“(C) 45 percent of the receipts shall be allocated, on a per sound recording basis, to the recording artist or artists featured on such sound recording (or the persons conveying rights in the artists’ performance in the sound recordings).”
Subsec. (g)(3), (4). Pub. L. 107–321, § 5(b), added pars. (3) and (4).
1998—Subsec. (d)(1)(A). Pub. L. 105–304, § 405(a)(1)(A), added subpar. (A) and struck out former subpar. (A) which read as follows:
“(A)(i) a nonsubscription transmission other than a retransmission;
“(ii) an initial nonsubscription retransmission made for direct reception by members of the public of a prior or simultaneous incidental transmission that is not made for direct reception by members of the public; or
“(iii) a nonsubscription broadcast transmission;”.
Subsec. (d)(2). Pub. L. 105–304, § 405(a)(1)(B), amended heading and text of par. (2) generally. Prior to amendment, text read as follows: “In the case of a subscription transmission not exempt under subsection (d)(1), the performance of a sound recording publicly by means of a digital audio transmission shall be subject to statutory licensing, in accordance with subsection (f) of this section, if—
“(A) the transmission is not part of an interactive service;
“(B) the transmission does not exceed the sound recording performance complement;
“(C) the transmitting entity does not cause to be published by means of an advance program schedule or prior announcement the titles of the specific sound recordings or phonorecords embodying such sound recordings to be transmitted;
“(D) except in the case of transmission to a business establishment, the transmitting entity does not automatically and intentionally cause any device receiving the transmission to switch from one program channel to another; and
“(E) except as provided in section 1002(e) of this title, the transmission of the sound recording is accompanied by the information encoded in that sound recording, if any, by or under the authority of the copyright owner of that sound recording, that identifies the title of the sound recording, the featured recording artist who performs on the sound recording, and related information, including information concerning the underlying musical work and its writer.”
Subsec. (f). Pub. L. 105–304, § 405(a)(2)(A), substituted “Certain Nonexempt” for “Nonexempt Subscription” in heading.
Subsec. (f)(1)(A). Pub. L. 105–304, § 405(a)(2)(B), designated existing provisions as subpar. (A), in first sentence, substituted “subscription transmissions by preexisting subscription services and transmissions by preexisting satellite digital audio radio services” for “the activities” and “2001” for “2000”, and amended third sentence generally. Prior to amendment, third sentence read as follows: “Any copyright owners of sound recordings or any entities performing sound recordings affected by this section may submit to the Librarian of Congress licenses covering such activities with respect to such sound recordings.”
Subsec. (f)(1)(B), (C). Pub. L. 105–304, § 405(a)(2)(C), added subpars. (B) and (C).
Subsec. (f)(2) to (5). Pub. L. 105–304, § 405(a)(2)(C), added pars. (2) to (4) and struck out former pars. (2) to (5), which provided: in par. (2) that Librarian of Congress would convene a copyright arbitration royalty panel to determine schedule of rates and terms, that panel could consider rates and terms for comparable types of services under voluntary license agreements, and that requirements would be established by which copyright owners would receive notice of use of their recordings; in par. (3) that voluntarily negotiated license agreements would be given effect in lieu of determination by panel or decision by Librarian; in par. (4) that publication of notice of negotiations would be repeated no later than 30 days after petition was filed, in the first week of January, 2000, and at 5-year intervals thereafter, and that par. (2) procedures would be repeated upon filing of petition during a 60-day period commencing six months after publication of notice or on
Subsec. (g). Pub. L. 105–304, § 405(a)(3)(A), struck out “Subscription” before “Transmissions” in heading.
Subsec. (g)(1). Pub. L. 105–304, § 405(a)(3)(B), substituted “transmission licensed under a statutory license” for “subscription transmission licensed” in introductory provisions.
Subsec. (g)(1)(A), (B). Pub. L. 105–304, § 405(a)(3)(C), struck out “subscription” before “transmission”.
Subsec. (g)(2). Pub. L. 105–304, § 405(a)(3)(D), struck out “subscription” before “transmission performances” in introductory provisions.
Subsec. (j)(2), (3). Pub. L. 105–304, § 405(a)(4)(A), (B), added par. (2) and redesignated former par. (2) as (3). Former par. (3) redesignated (5).
Subsec. (j)(4). Pub. L. 105–304, § 405(a)(4)(A), (C), added par. (4) and struck out former par. (4) which read as follows: “An ‘interactive service’ is one that enables a member of the public to receive, on request, a transmission of a particular sound recording chosen by or on behalf of the recipient. The ability of individuals to request that particular sound recordings be performed for reception by the public at large does not make a service interactive. If an entity offers both interactive and non-interactive services (either concurrently or at different times), the non-interactive component shall not be treated as part of an interactive service.”
Subsec. (j)(5). Pub. L. 105–304, § 405(a)(4)(A), redesignated par. (3) as (5). Former par. (5) redesignated (9).
Subsec. (j)(6) to (8). Pub. L. 105–304, § 405(a)(4)(A), (D), added pars. (6) to (8). Former pars. (6) to (8) redesignated (12) to (14), respectively.
Subsec. (j)(9). Pub. L. 105–304, § 405(a)(4)(A), redesignated par. (5) as (9) and struck out former par. (9) which read as follows: “A ‘transmission’ includes both an initial transmission and a retransmission.”
Subsec. (j)(10), (11). Pub. L. 105–304, § 405(a)(4)(E), added pars. (10) and (11).
Subsec. (j)(12) to (14). Pub. L. 105–304, § 405(a)(4)(A), redesignated pars. (6) to (8) as (12) to (14), respectively.
Subsec. (j)(15). Pub. L. 105–304, § 405(a)(4)(F), added par. (15).
1997—Subsec. (f)(1). Pub. L. 105–80, § 3(1), inserted “, or, if a copyright arbitration royalty panel is convened, ending 30 days after the Librarian issues and publishes in the Federal Register an order adopting the determination of the copyright arbitration royalty panel or an order setting the terms and rates (if the Librarian rejects the panel’s determination)” after “
Subsec. (f)(2). Pub. L. 105–80, § 3(2), struck out “and publish in the Federal Register” before “a schedule of rates and terms”.
1995—Subsec. (a). Pub. L. 104–39, § 3(1), substituted “(3) and (6) of section 106” for “and (3) of section 106”.
Subsec. (b). Pub. L. 104–39, § 3(2), substituted “phonorecords or copies” for “phonorecords, or of copies of motion pictures and other audiovisual works,” in first sentence.
Subsec. (d). Pub. L. 104–39, § 3(3), added subsec. (d) and struck out former subsec. (d), which read as follows: “On
Subsecs. (e) to (j). Pub. L. 104–39, § 3(4), added subsecs. (e) to (j).
Pub. L. 115–264, title I, § 103(h),
Pub. L. 115–264, title I, § 106,
Pub. L. 115–264, title III, § 303, “(a) Except as provided in subsection (b), this title [amending this section and enacting provisions set out as a note under section 101 of this title] and the amendments made by this title shall take effect on the date of enactment of this Act [“(b) Paragraphs (5)(B) and (6)(E) of section 114(g) of title 17, United States Code, as added by section 302, shall take effect on
Amendment by Pub. L. 109–303 effective as if included in the Copyright Royalty and Distribution Reform Act of 2004, Pub. L. 108–419, see section 6 of Pub. L. 109–303, set out as a note under section 111 of this title.
Amendment by Pub. L. 108–419 effective 6 months after
Amendment by section 405(a)(1), (2)(A), (B)(i)(I), (II), (ii), (3), (4) of Pub. L. 105–304 effective
Pub. L. 105–304, title IV, § 405(a)(5),
Amendment by Pub. L. 104–39 effective 3 months after
Pub. L. 115–264, title IV, § 401,
Pub. L. 115–264, title I, § 103(e),
Pub. L. 115–264, title I, § 103(f),
Pub. L. 105–304, title IV, § 405(a)(6),
Pub. L. 115–264, title I, § 103(c), (d), “(c) “(1) License fees payable for the public performance of sound recordings under section 106(6) of title 17, United States Code, shall not be taken into account in any administrative, judicial, or other governmental proceeding to set or adjust the royalties payable to musical work copyright owners for the public performance of their works except in such a proceeding to set or adjust royalties for the public performance of musical works by means of a digital audio transmission other than a transmission by a broadcaster, and may be taken into account only with respect to such digital audio transmission.“(2) In this subsection:“(A) The term ‘transmission by a broadcaster’ means a nonsubscription digital transmission made by a terrestrial broadcast station on its own behalf, or on the behalf of a terrestrial broadcast station under common ownership or control, that is not part of an interactive service or a music-intensive service comprising the transmission of sound recordings customized for or customizable by recipients or service users.“(B) The term ‘terrestrial broadcast station’ means a terrestrial, over-the-air radio or television broadcast station, including an FM translator (as defined in section 74.1201 of title 47, Code of Federal Regulations, and licensed as such by the Federal Communications Commission) whose primary business activities are comprised of, and whose revenues are generated through, terrestrial, over-the-air broadcast transmissions, or the simultaneous or substantially-simultaneous digital retransmission by the terrestrial, over-the-air broadcast station of its over-the-air broadcast transmissions.“(d) Subsection (c)(2) shall not be given effect in interpreting provisions of title 17, United States Code.”
Pub. L. 107–321, § 2, “(1) Some small webcasters who did not participate in the copyright arbitration royalty panel proceeding leading to the “(2) Congress has strongly encouraged representatives of copyright owners of sound recordings and representatives of the small webcasters to engage in negotiations to arrive at an agreement that would include a fee based on a percentage of revenue.“(3) The representatives have arrived at an agreement that they can accept in the extraordinary and unique circumstances here presented, specifically as to the small webcasters, their belief in their inability to pay the fees due pursuant to the July 8 order, and as to the copyright owners of sound recordings and performers, the strong encouragement of Congress to reach an accommodation with the small webcasters on an expedited basis.“(4) The representatives have indicated that they do not believe the agreement provides for or in any way approximates fair or reasonable royalty rates and terms, or rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.“(5) Congress has made no determination as to whether the agreement provides for or in any way approximates fair or reasonable fees and terms, or rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.“(6) Congress likewise has made no determination as to whether the July 8 order is reasonable or arbitrary, and nothing in this Act [amending this section and enacting provisions set out as notes under this section and section 101 of this title] shall be taken into account by the United States Court of Appeals for the District of Columbia Circuit in its review of such order.“(7) It is, nevertheless, in the public interest for the parties to be able to enter into such an agreement without fear of liability for deviating from the fees and terms of the July 8 order, if it is clear that the agreement will not be admissible as evidence or otherwise taken into account in any government proceeding involving the setting or adjustment of the royalties payable to copyright owners of sound recordings for the public performance or reproduction in ephemeral phonorecords or copies of such works, the determination of terms or conditions related thereto, or the establishment of notice or recordkeeping requirements.”
Pub. L. 107–321, § 5(a), “(1) in the case of royalty payments from the licensing of digital transmissions of sound recordings under subsection (f) of section 114 of title 17, United States Code, the parties have voluntarily negotiated arrangements under which payments shall be made directly to featured recording artists and the administrators of the accounts provided in subsection (g)(2) of that section;“(2) such voluntarily negotiated payment arrangements have been codified in regulations issued by the Librarian of Congress, currently found in section 261.4 of title 37, Code of Federal Regulations, as published in the Federal Register on “(3) other regulations issued by the Librarian of Congress were inconsistent with the voluntarily negotiated arrangements by such parties concerning the deductibility of certain costs incurred for licensing and arbitration, and Congress is therefore restoring those terms as originally negotiated among the parties; and“(4) in light of the special circumstances described in this subsection, the uncertainty created by the regulations issued by the Librarian of Congress, and the fact that all of the interested parties have reached agreement, the voluntarily negotiated arrangements agreed to among the parties are being codified.”
Pub. L. 107–321, § 3, “(a) “(1) The payments to be made by noncommercial webcasters for the digital performance of sound recordings under section 114 of title 17, United States Code, and the making of ephemeral phonorecords under section 112 of title 17, United States Code, during the period beginning on “(2) In this subsection, the term ‘noncommercial webcaster’ has the meaning given that term in section 114(f)(5)(E)(i) [now 114(f)(4)(E)(i)] of title 17, United States Code, as added by section 4 of this Act.“(b) “(1) The receiving agent may, in a writing signed by an authorized representative thereof, delay the obligation of any 1 or more small commercial webcasters to make payments pursuant to sections 112 and 114 of title 17, United States Code, for a period determined by such entity to allow negotiations as permitted in section 4 of this Act [amending this section], except that any such period shall end no later than “(2) In this subsection—“(A) the term ‘webcaster’ has the meaning given that term in section 114(f)(5)(E)(iii) [now 114(f)(4)(E)(iii)] of title 17, United States Code, as added by section 4 of this Act; and“(B) the term ‘receiving agent’ shall have the meaning given that term in section 261.2 of title 37, Code of Federal Regulations, as published in the Federal Register on
Pub. L. 107–321, § 6,