] [Thread Prev
Music Online Competition Act of 2001 Translation Part 1
Sorry about the length folks, but it's important. Kim's okayed the
up of this into two parts. Part 1 follows:
Original sections are preceded with a >
For a start, this stuff is being introduced by Chris Cannon, a Republican
from the 3rd district of Utah - http://www.house.gov/cannon/ and by Rick
Boucher, a Democrat from the 9th
district of Virginia - http://www.house.gov/boucher/
>SECTION 1. SHORT TITLE.
>This Act may be cited as the "Music Online Competition Act of 2001"
Not only does this have very little to say about Competitions it's not even
a short title!
>SEC. 2. EXEMPTION OF CERTAIN PERFORMANCES IN ONLINE AND PHYSICAL RETAIL
>(a) EXEMPTION. ---Section 110(7) of title 17, United States Code, is
>(2) by striking "by a vending establishment" and inserting "or of a sound
recording by digital audio transmission, by or in a physical vending
Instead of activity on the part of a simple "vending establishment" online
or off that strictly SELLS something, the proposed legislation substitutes
the text redefining this to be ANYWHERE on or offline that offers a sound
recording by "digital audio transmission", targeting both physical
and virtual ones. So this means that the proposed legislation affects any
place where music or any other digital content is posted.
>"(B) performance of a sample of a nondramatic musical work or a sample of
sound recording by digital audio transmission, by or through a digital
online service open to the public at large without any direct or indirect
admission charge, if --
>"(i) the purpose of the performance is to promote the retail sale,
distribution or license, by or through the service, of copies or
phonorecords of the work, including by digital phonorecord delivery as
defined in section 115(d)(1);
>"(ii) the transmitting entity transmits the sample solely to the
recipient requesting the transmission; and,
>"(iii) the length of the sample does not exceed 30 seconds or, in the case
of a sound recording of more than 5 minutes in duration, 10 percent of that
sound recording not to exceed 60 seconds;".
performance of samples of nondramatic musical work or any other sample of
the result of digital audio transmission, which comes through any digital
device, and either charges or does not charge for access. This means
anyplace, and somehow every kind of digital audio live or recorded, so long
as it's not a "dramatic musical work", which I believe is defined someplace
in Copyright Law under Mechanical Royalties. This applies in the case of
ii, and iii have to do with (i) If the performance in anyway promotes for
sale, distribution or license your work in the form of broadcast,
file-directed copy, or CD/tape; (ii) if the transmission is from provider
directly to the listener, or customer of an online service; (iii) the
of the sample is 30 seconds or shorter, or, if the total work is greater
than 5:00, 10% of the total length up until 60 seconds.
This would appear not to immediately affect full-length works, but since
many online services have low-res samples of pieces to hear before you try
to go the entire length, it might easily apply.
>(b) DEFINITION OF PERFORMANCE. --
>Section 110 of title 17, United States Code, is amended by adding at the
end the following: "For purposes of paragraph >(7), a 'performance'
a transmission made by a transmitting organization to or on behalf of a
vending establishment or a digital online service.".
A 'performance' is now redefined as including any transmission done to or
through a vending establishment, or an online service, in short, at your
home or office, or WAP.
>SEC. 3. EXEMPTION FOR EPHEMERAL RECORDINGS AND FOR MULTIPLE EPHEMERAL
>(a) EXEMPTION. ---Section 112(a)(1) of title 17, United States Code, is
>(1) in subparagraph (A), by striking "made it, and" and inserting "made it
and, except to facilitate transmission of the performance,"; and
In short this intends to allow for the mirroring of sites with the intent
provide gap-free performance of the piece, and other obvious (to server
admins) reasons. If mp3.com decides to operate multiple mirror servers for
your one song, they only pay for that one song.
>(2) in subparagraph (C), by striking "public." and inserting the
"public, except that a transmission program as set forth in section
114(d)(2)(B) or section 114(d)(2)(C)(iii) is not required to be destroyed
a transmitting organization entitled to a statutory license under section
Could mean that, if you produce music work for broadcast online, the people
who throughput it for you, say, mp3.com or Live365, are not required to not
keep an archive of the result after its need is finished. So mp3.com etc.
could keep a copy of something you played online even after you've removed
it from availability.
>(b) MULTIPLE EPHEMERAL RECORDINGS EXEMPTION. --
>Section 112 of title 17, United States Code, is amended --
>(1) by striking subparagraph (C) of subsection (e)(1) and re-designating
subparagraph (D) as sub paragraph (C);
>(2) by redesignating subsection (f) as subsection (g);
>(3) by adding after subsection (e) the following:
(that is, inserting a clause - jeez!)
>"(f) Notwithstanding the provisions of section 106, and except in the case
of a motion picture or other audio visual work, it is not an infringement
copyright for a transmitting organization entitled to transmit to the
a performance or display of a work, under a license, including a statutory
license under section 114(f), or transfer of the copyright or under the
limitations on exclusive rights in sound recordings specified by section
114(a) or for a transmitting organization that is a broadcast radio or
television station licensed as such by the Federal Communications
and that makes a broadcast transmission of a performance of a sound
recording in a digital format on a non-subscription basis, to make one or
more copies or phonorecords of a work included in a sound recording, if --
This only applies to audio works. It is not an infringement of copyright
for a provider to transmit or display as available your audio work under an
agreement, or transfer the copyright under an exclusive agreement, or for
any FCC-licensed facility, to broadcast an audio work / performance in
digital format on a non-subscription basis, as well as make one or more
copies / recordings / CDs / tapes of your audio work (or a sample from it)
>"(1) each copy or phonorecord is retained and used solely by the
transmitting organization that made it; and "(2) each copy or phonorecord
used solely for the transmitting organization's own transmissions within
local service area, or for purposes of archival preservation or security."
1. each copy / recording is kept and used ONLY by that transmitting
organization, say, mp3.com; and 2. each copy is used only for the company's
transmissions or for archiving. This again covers mirrors and backups, but
potentially limits artists from having pieces posted on more than one site,
since violation could be produced by both mp3.com and iuma.com having a
copy - and backups/mirrors - of your audio piece.
>SEC. 4. LICENSING FOR TRANSMISSION.
>(a) STATUTORY PERFORMANCE LICENSE PAY MENTS. --
>Subsection (g) of section 114 of title 17, United States Code, is
>(1) by striking paragraph (2), and
>(2) by adding after paragraph (1) the following:
>"(2) Receipts from the statutory licensing of public performances of sound
recordings by digital audio transmission in accordance with subsection (f)
shall be allocated and paid in the following manner:
>"(A) 45 percent of the receipts shall be paid, on a per sound recording
basis, to the recording artist or artists featured on such sound recording
or to a designated collection and distribution organization on behalf of
such featured recording artist or artists.
45% will be paid to the artist or artists featured on the recording, or to
designated firm on behalf of which fees are collected.
>"(B) 2.5 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 non-featured musicians (whether or
not such musicians are members of the American Federation of Musicians) who
have performed on sound recordings.
2.5% of those receipts will be mandatorily kept in an escrow account by an
independent administrator "jointly appointed by copyright owners of sound
recordings and the American Federation of Musicians" (or whomever bumps
off for the business), in order to give these funds to musicians NOT
INVOLVED IN THE WORK, but who have performed on SOME sound recording in the
past, whether they're members of the AFM or not, and whether or not they
actually did work on your audio piece.
>"(C) 2.5 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 non-featured
vocalists (whether or not such vocalists are members of the American
Federation of Television and Radio Artists) who have performed on sound
An ADDITIONAL 2.5% of receipts will be manditorily kept in an escrow
by an independent administrator "jointly appointed by copyright owners of
sound recordings and the American Federation of TV and Radio Artists" (or
whomever THEY bump off for the business) to be given to vocalists NOT
INVOLVED IN THE WORK (whether they're members of the AFTRA or not) but who
have performed on SOME recording in the past, whether or not it's YOUR
>"(D) 50 percent of the receipts shall be paid to a designated collection
and distribution organization on behalf of the copyright owner of the
exclusive right under section 106(6) of this title to perform publicly the
sound recording by means of digital audio transmission under the statutory
license of subsection (f) of this section.".
50% of receipts shall be paid to an organization on behalf of the copyright
owner of the exclusive right to broadcast your audio piece - this could
be the broadcaster (mp3.com etc.) and NOT the artist.
Got that? Manditorily...
45% goes to the artist(s) on the recording, or publishing company;
2.5% goes to AFM
2.5% goes to AFTRA
50% goes to the broadcaster, who just might decide
to pay you a fee for letting them use your work.
>(b) LICENSING AFFILIATES. --
>(1) IN GENERAL. --
>Subsection (h) of section 114, title 17, United States Code, is amended --
>(A) by striking paragraphs (1) and (2) and inserting the following:
>"(1) If the copyright owner of a sound recording licenses an affiliated
entity the right to reproduce the copyrighted work, to distribute the
copyrighted work to the public by means of a digital phonorecord delivery
or to perform the copyrighted work publicly, the copyright owner shall make
the licensed sound recording available on no less favorable terms and
conditions to all bona fide entities that offer similar services, except
that, if there are material differences in the scope of the requested
license with respect to the type of service, the particular sound
licensed, the frequency of use, the number of subscribers served, or the
duration, then the copyright owner may establish different terms and
conditions for such other services, that such different terms and
>"(A) shall be limited to, and shall accurately reflect any such material
differences in the scope of the requested license; and
>"(B) permitted under this paragraph, shall be made available to all bona
fide entities that offer similar services.
If you license any firm to make copies of your audio piece, distribute it
the public via CD / tape /etc. or public broadcast, you must also make the
recording available on duplicate terms to anyone who offers similar
services - unless there are limitations in the scope of the license you've
signed the piece on for specifically limiting the use of the piece to that
firm, whether it's inclusion in a collection (like mp3.com does
occasionally) or a limited broadcast for subscribers only. If there ARE
differences in the licensing it must be reflected in the agreement (this is
redundant potentially), and again must also be made available to other
similar service providers. Does this mean that if you're happy running
stuff on iuma and mp3.com wants a piece, you have to let them use it?
>"(2)(A) Except as provided in subparagraph (B), a copyright owner that
licenses a sound recording pursuant to paragraph 1 shall not mandate as
of the terms and conditions of the license that the licensee use any
particular digital rights management technology.
The copyright owner may not dictate what method of digital rights
is used. If you differ with Microsoft's methodology for instance and your
service provider uses it, then so do you have to use it, whether you want
>"(B) A copyright owner described in subparagraph (A) shall not be
from including in the license a requirement that the licensee implement
digital rights management technology that meets reasonable and
nondiscriminatory performance criteria the copyright owner has established
to protect a right of a copyright owner under this title in a work or a
The copyright owner has the right to have a clause in his license agreement
that requires that whatever digital rights management technology is used,
must not degrade the quality of the performance in the owner's opinion, but
only if they've established a methodology of their own already.
>"(3)(A) Except as provided in subparagraph (B), a copyright owner that
licenses a sound recording pursuant to paragraph (1) shall not mandate as
part of the terms and conditions of the license that the licensee use any
particular digital music player.
If you don't like RealPlayer you can't keep mp3.com /etc from encoding your
work in it; similarly you can't enforce that only RealPlayer be used to
encoded material. (This might be a weird bit of business for Real/AOL!)
>"(B) A copyright owner described in subparagraph (A) shall not be
from including in the license a requirement that the licensee use a digital
music player that meets reasonable and non discriminatory performance
criteria the copyright owner has established.
If you want you can include in your license agreement that the licensee
a player or program that does not cause the quality of your performance to
suffer - if you've put a clause in your license to this effect.
>"(4) ENFORCEMENT. ---
>(A) The Attorney General may investigate an alleged violation of this
subsection if an investigation begins not later than 2 years after an
alleged violation occurred.
Sounds like a violation may have already happened, and this is being set up
to go after it, or prevent it from happening again by the sheer threat of
enforcement. A caveat I suppose - the Attorney General has 2 years to
investigation of an alleged violation (if of course you even know that it
occurred, and if the Attorney General decides your complaint is worthy of
>"(B) If the date of an alleged violation is unknown, the Attorney General
may investigate to determine the date of the alleged violation.
If the Government can't find out when the "violation" happened, they can
spend all the money and resources they want, and harass everyone in a quest
to determine the date of "violation."
>"(C) If the Attorney General determines that a violation of this
has occurred, the Attorney General has the power to seek to enforce the
requirements of this subsection through all appropriate means.
"...all appropriate means" has been heard before, and could come short of
"with extreme prejudice".
>"(D) Nothing contained in this paragraph shall be construed to limit the
authority of the Attorney General under any other provision of law.
There is no limit in this paragraph to the authority of the Attorney
in any way.
>(2) DEFINITIONS. ---
>Subsection (j) of section 114 of title 17, United States Code, is
>(A) by amending paragraph (1) to read as follows:
>"(1) The term 'affiliated entity' means an entity, other than an entity
that wholly owns or is wholly owned by the licensor, engaging in digital
audio transmissions covered by section 106(6) or digital phonorecord
deliveries in which the licensor has any direct or indirect partnership or
any ownership interest amounting to 5 percent or more of the out standing
voting or nonvoting stock.";
Join ASCAP or another affiliate, or die financially. If you own your own
label, you obviously own more than 5% of the process, and are therefore
taking the place of that "entity" with respect to this legislation.
>(B) by redesignating paragraphs (6) through (15) as paragraphs (9) through
>(C) by inserting after paragraph (5) the following:
>"(6) The term 'digital music player' means a technology that renders
audible the sounds in a sound recording embodied in a digital audio
transmission or a digital phonorecord delivery.
The "digital music player" defined as something that either receives a
signal, or plays a disk / recording.
>"(7) The term 'digital phonorecord delivery' shall have the meaning given
such term in section 115(d)(1).
Delivery is both the delivery of broadcast in digital form, or the delivery
of a recording in digital form. In short, EVERYTHING recorded digitally.
>"(8) The term 'digital rights management technology' means a technological
measure used to limit the uses of copyrighted work to those authorized by
the copyright owner or the law.".
Yet to be completely troubleshooted as we know. There may be elements of
the case against Microsoft involving their Media Player's "digital rights
management" routines involved with this. As said previously the copyright
owner doesn't have a say in which DRM technology is used, unless it
performance quality. The part "or the law" leaves it open to yank that one
away from you if the Government wants to.
>SEC. 5. ELECTRONIC ADMINISTRATION OF THE COMPULSORY LICENSE FOR MAKING AND
DISTRIBUTING SOUND RECORDINGS.
>(a) NOTICE OF INTENTION. ---
>Section 115(b) of title 17, United States Code, is amended --
>(1) by striking paragraph (1) and inserting the following:
>(A) Any person who wishes to obtain a compulsory license under this
shall do so by serving a notice of intention to make and distribute
phonorecords of the work.
So we're supposed to now serve a notice of intention if we want to make and
distribute CDs of our own? It's not said as to whether or not it's
that the "notice" be agreed to by the copyright owner. Also, it's not said
where or how - or what form this "notice of intention" should take. This
a hole through which elephants (or music company behemoths) could walk
without a care; it also could set up a legalistic methodology similar to
patent process, that increases the cost of producing CDs, recordings, and
other media ten-fold at least. And (surprise!) gets the little guys out of
the business. But wait, there's more.
>"(B) Such notice may be given by direct notice served upon the copyright
owner or by constructive notice that does not identify the copyright owner
and that is to be served upon the Copyright Office.
This no doubt is one of the changes to Copyright law that RIAA was trying
get through a month ago; any day then one of us could receive a compulsory
notice from someone stating that they're distributing and copying our work
and if we didn't register it with the Copyright office, song by song, or
have our expensive lawyers do it, they can do anything they want, so long
they tell the Copyright office that they're doing it. The original owner,
in some cases, is just screwed, and potentially not even told when it
>"(C) Notice shall be served before or within 30 days after making, and
before distributing, any phonorecords of the work, except that a notice of
intention to make digital phonorecord deliveries shall be made within 30
days after enactment of this Act or before the making of a digital
phonorecord delivery of the work, whichever is later.
Deadlines for those who wish to legally steal the use of your work, with
help of the "notice of intention", within 30 days of this becoming law, or
before the recording is originally produced, whichever is later.
>"(D) Any notice of intention may identify more than one work and a
constructive notice also may identify a work by one or more copyright
This I think allows for the Medley rule, so that if your work is a
compilation of pieces about the Grand Canyon, the "notice of intention"
would only have to be filed once to steal the entire suite.
>"(E) The notice shall comply, in form, content, and manner of service,
requirements that the Register of Copyrights shall prescribe by
If the Registrar of Copyrights doesn't like the notice it doesn't apply.
But you the copyright owner need not be necessarily told, as outlined
(continued in next post)