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U.S. Code as of:
01/19/04
Section 115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords
In the case of nondramatic musical works, the exclusive rights
provided by clauses (1) and (3) of section 106, to make and to
distribute phonorecords of such works, are subject to compulsory
licensing under the conditions specified by this section.
(a) Availability and Scope of Compulsory License. -
(1) When phonorecords of a nondramatic musical work have been
distributed to the public in the United States under the
authority of the copyright owner, any other person, including
those who make phonorecords or digital phonorecord deliveries,
may, by complying with the provisions of this section, obtain a
compulsory license to make and distribute phonorecords of the
work. A person may obtain a compulsory license only if his or her
primary purpose in making phonorecords is to distribute them to
the public for private use, including by means of a digital
phonorecord delivery. A person may not obtain a compulsory
license for use of the work in the making of phonorecords
duplicating a sound recording fixed by another, unless: (i) such
sound recording was fixed lawfully; and (ii) the making of the
phonorecords was authorized by the owner of copyright in the
sound recording or, if the sound recording was fixed before
February 15, 1972, by any person who fixed the sound recording
pursuant to an express license from the owner of the copyright in
the musical work or pursuant to a valid compulsory license for
use of such work in a sound recording.
(2) A compulsory license includes the privilege of making a
musical arrangement of the work to the extent necessary to
conform it to the style or manner of interpretation of the
performance involved, but the arrangement shall not change the
basic melody or fundamental character of the work, and shall not
be subject to protection as a derivative work under this title,
except with the express consent of the copyright owner.
(b) Notice of Intention To Obtain Compulsory License. -
(1) Any person who wishes to obtain a compulsory license under
this section shall, before or within thirty days after making,
and before distributing any phonorecords of the work, serve
notice of intention to do so on the copyright owner. If the
registration or other public records of the Copyright Office do
not identify the copyright owner and include an address at which
notice can be served, it shall be sufficient to file the notice
of intention in the Copyright Office. The notice shall comply, in
form, content, and manner of service, with requirements that the
Register of Copyrights shall prescribe by regulation.
(2) Failure to serve or file the notice required by clause (1)
forecloses the possibility of a compulsory license and, in the
absence of a negotiated license, renders the making and
distribution of phonorecords actionable as acts of infringement
under section 501 and fully subject to the remedies provided by
sections 502 through 506 and 509.
(c) Royalty Payable Under Compulsory License. -
(1) To be entitled to receive royalties under a compulsory
license, the copyright owner must be identified in the
registration or other public records of the Copyright Office. The
owner is entitled to royalties for phonorecords made and
distributed after being so identified, but is not entitled to
recover for any phonorecords previously made and distributed.
(2) Except as provided by clause (1), the royalty under a
compulsory license shall be payable for every phonorecord made
and distributed in accordance with the license. For this purpose,
and other than as provided in paragraph (3), a phonorecord is
considered "distributed" if the person exercising the compulsory
license has voluntarily and permanently parted with its
possession. With respect to each work embodied in the
phonorecord, the royalty shall be either two and three-fourths
cents, or one-half of one cent per minute of playing time or
fraction thereof, whichever amount is larger.
(3)(A) A compulsory license under this section includes the
right of the compulsory licensee to distribute or authorize the
distribution of a phonorecord of a nondramatic musical work by
means of a digital transmission which constitutes a digital
phonorecord delivery, regardless of whether the digital
transmission is also a public performance of the sound recording
under section 106(6) of this title or of any nondramatic musical
work embodied therein under section 106(4) of this title. For
every digital phonorecord delivery by or under the authority of
the compulsory licensee -
(i) on or before December 31, 1997, the royalty payable by
the compulsory licensee shall be the royalty prescribed under
paragraph (2) and chapter 8 of this title; and
(ii) on or after January 1, 1998, the royalty payable by the
compulsory licensee shall be the royalty prescribed under
subparagraphs (B) through (F) and chapter 8 of this title.
(B) Notwithstanding any provision of the antitrust laws, any
copyright owners of nondramatic musical works and any persons
entitled to obtain a compulsory license under subsection (a)(1)
may negotiate and agree upon the terms and rates of royalty
payments under this paragraph and the proportionate division of
fees paid among copyright owners, and may designate common agents
to negotiate, agree to, pay or receive such royalty payments.
Such authority to negotiate the terms and rates of royalty
payments includes, but is not limited to, the authority to
negotiate the year during which the royalty rates prescribed
under subparagraphs (B) through (F) and chapter 8 of this title
shall next be determined.
(C) During the period of June 30, 1996, through December 31,
1996, 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 the activities specified
by subparagraph (A) during the period beginning January 1, 1998,
and ending on the effective date of any new terms and rates
established pursuant to subparagraph (C), (D) or (F), or such
other date (regarding digital phonorecord deliveries) as the
parties may agree. Such terms and rates shall distinguish between
(i) digital phonorecord deliveries where the reproduction or
distribution of a phonorecord is incidental to the transmission
which constitutes the digital phonorecord delivery, and (ii)
digital phonorecord deliveries in general. Any copyright owners
of nondramatic musical works and any persons entitled to obtain a
compulsory license under subsection (a)(1) may submit to the
Librarian of Congress licenses covering such activities. The
parties to each negotiation proceeding shall bear their own
costs.
(D) In the absence of license agreements negotiated under
subparagraphs (B) and (C), 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 a schedule of rates and terms which,
subject to subparagraph (E), shall be binding on all copyright
owners of nondramatic musical works and persons entitled to
obtain a compulsory license under subsection (a)(1) during the
period beginning January 1, 1998, and ending on the effective
date of any new terms and rates established pursuant to
subparagraph (C), (D) or (F), or such other date (regarding
digital phonorecord deliveries) as may be determined pursuant to
subparagraphs (B) and (C). Such terms and rates shall distinguish
between (i) digital phonorecord deliveries where the reproduction
or distribution of a phonorecord is incidental to the
transmission which constitutes the digital phonorecord delivery,
and (ii) digital phonorecord deliveries in general. In addition
to the objectives set forth in section 801(b)(1), in establishing
such rates and terms, the copyright arbitration royalty panel may
consider rates and terms under voluntary license agreements
negotiated as provided in subparagraphs (B) and (C). The royalty
rates payable for a compulsory license for a digital phonorecord
delivery under this section shall be established de novo and no
precedential effect shall be given to the amount of the royalty
payable by a compulsory licensee for digital phonorecord
deliveries on or before December 31, 1997. The Librarian of
Congress shall also establish requirements by which copyright
owners may receive reasonable notice of the use of their works
under this section, and under which records of such use shall be
kept and made available by persons making digital phonorecord
deliveries.
(E)(i) License agreements voluntarily negotiated at any time
between one or more copyright owners of nondramatic musical works
and one or more persons entitled to obtain a compulsory license
under subsection (a)(1) shall be given effect in lieu of any
determination by the Librarian of Congress. Subject to clause
(ii), the royalty rates determined pursuant to subparagraph (C),
(D) or (F) shall be given effect in lieu of any contrary royalty
rates specified in a contract pursuant to which a recording
artist who is the author of a nondramatic musical work grants a
license under that person's exclusive rights in the musical work
under paragraphs (1) and (3) of section 106 or commits another
person to grant a license in that musical work under paragraphs
(1) and (3) of section 106, to a person desiring to fix in a
tangible medium of expression a sound recording embodying the
musical work.
(ii) The second sentence of clause (i) shall not apply to -
(I) a contract entered into on or before June 22, 1995, and
not modified thereafter for the purpose of reducing the royalty
rates determined pursuant to subparagraph (C), (D) or (F) or of
increasing the number of musical works within the scope of the
contract covered by the reduced rates, except if a contract
entered into on or before June 22, 1995, is modified thereafter
for the purpose of increasing the number of musical works
within the scope of the contract, any contrary royalty rates
specified in the contract shall be given effect in lieu of
royalty rates determined pursuant to subparagraph (C), (D) or
(F) for the number of musical works within the scope of the
contract as of June 22, 1995; and
(II) a contract entered into after the date that the sound
recording is fixed in a tangible medium of expression
substantially in a form intended for commercial release, if at
the time the contract is entered into, the recording artist
retains the right to grant licenses as to the musical work
under paragraphs (1) and (3) of section 106.
(F) The procedures specified in subparagraphs (C) and (D) shall
be repeated and concluded, in accordance with regulations that
the Librarian of Congress shall prescribe, in each fifth calendar
year after 1997, except to the extent that different years for
the repeating and concluding of such proceedings may be
determined in accordance with subparagraphs (B) and (C).
(G) Except as provided in section 1002(e) of this title, a
digital phonorecord delivery licensed under this paragraph shall
be accompanied by the information encoded in the 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.
(H)(i) A digital phonorecord delivery of a sound recording is
actionable as an act of infringement under section 501, and is
fully subject to the remedies provided by sections 502 through
506 and section 509, unless -
(I) the digital phonorecord delivery has been authorized by
the copyright owner of the sound recording; and
(II) the owner of the copyright in the sound recording or the
entity making the digital phonorecord delivery has obtained a
compulsory license under this section or has otherwise been
authorized by the copyright owner of the musical work to
distribute or authorize the distribution, by means of a digital
phonorecord delivery, of each musical work embodied in the
sound recording.
(ii) Any cause of action under this subparagraph shall be in
addition to those available to the owner of the copyright in the
nondramatic musical work under subsection (c)(6) and section
106(4) and the owner of the copyright in the sound recording
under section 106(6).
(I) The liability of the copyright owner of a sound recording
for infringement of the copyright in a nondramatic musical work
embodied in the sound recording shall be determined in accordance
with applicable law, except that the owner of a copyright in a
sound recording shall not be liable for a digital phonorecord
delivery by a third party if the owner of the copyright in the
sound recording does not license the distribution of a
phonorecord of the nondramatic musical work.
(J) Nothing in section 1008 shall be construed to prevent the
exercise of the rights and remedies allowed by this paragraph,
paragraph (6), and chapter 5 in the event of a digital
phonorecord delivery, except that no action alleging infringement
of copyright may be brought under this title against a
manufacturer, importer or distributor of a digital audio
recording device, a digital audio recording medium, an analog
recording device, or an analog recording medium, or against a
consumer, based on the actions described in such section.
(K) Nothing in this section annuls or limits (i) the exclusive
right to publicly perform a sound recording or the musical work
embodied therein, including by means of a digital transmission,
under sections 106(4) and 106(6), (ii) except for compulsory
licensing under the conditions specified by this section, the
exclusive rights to reproduce and distribute the sound recording
and the musical work embodied therein under sections 106(1) and
106(3), including by means of a digital phonorecord delivery, or
(iii) any other rights under any other provision of section 106,
or remedies available under this title, as such rights or
remedies exist either before or after the date of enactment of
the Digital Performance Right in Sound Recordings Act of 1995.
(L) The provisions of this section concerning digital
phonorecord deliveries shall not apply to any exempt
transmissions or retransmissions under section 114(d)(1). The
exemptions created in section 114(d)(1) do not expand or reduce
the rights of copyright owners under section 106(1) through (5)
with respect to such transmissions and retransmissions.
(4) A compulsory license under this section includes the right
of the maker of a phonorecord of a nondramatic musical work under
subsection (a)(1) to distribute or authorize distribution of such
phonorecord by rental, lease, or lending (or by acts or practices
in the nature of rental, lease, or lending). In addition to any
royalty payable under clause (2) and chapter 8 of this title, a
royalty shall be payable by the compulsory licensee for every act
of distribution of a phonorecord by or in the nature of rental,
lease, or lending, by or under the authority of the compulsory
licensee. With respect to each nondramatic musical work embodied
in the phonorecord, the royalty shall be a proportion of the
revenue received by the compulsory licensee from every such act
of distribution of the phonorecord under this clause equal to the
proportion of the revenue received by the compulsory licensee
from distribution of the phonorecord under clause (2) that is
payable by a compulsory licensee under that clause and under
chapter 8. The Register of Copyrights shall issue regulations to
carry out the purpose of this clause.
(5) Royalty payments shall be made on or before the twentieth
day of each month and shall include all royalties for the month
next preceding. Each monthly payment shall be made under oath and
shall comply with requirements that the Register of Copyrights
shall prescribe by regulation. The Register shall also prescribe
regulations under which detailed cumulative annual statements of
account, certified by a certified public accountant, shall be
filed for every compulsory license under this section. The
regulations covering both the monthly and the annual statements
of account shall prescribe the form, content, and manner of
certification with respect to the number of records made and the
number of records distributed.
(6) If the copyright owner does not receive the monthly payment
and the monthly and annual statements of account when due, the
owner may give written notice to the licensee that, unless the
default is remedied within thirty days from the date of the
notice, the compulsory license will be automatically terminated.
Such termination renders either the making or the distribution,
or both, of all phonorecords for which the royalty has not been
paid, actionable as acts of infringement under section 501 and
fully subject to the remedies provided by sections 502 through
506 and 509.
(d) Definition. - As used in this section, the following term has
the following meaning: A "digital phonorecord delivery" is each
individual delivery of a phonorecord by digital transmission of a
sound recording which results in a specifically identifiable
reproduction by or for any transmission recipient of a phonorecord
of that sound recording, regardless of whether the digital
transmission is also a public performance of the sound recording or
any nondramatic musical work embodied therein. A digital
phonorecord delivery does not result from a real-time,
non-interactive subscription transmission of a sound recording
where no reproduction of the sound recording or the musical work
embodied therein is made from the inception of the transmission
through to its receipt by the transmission recipient in order to
make the sound recording audible.
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