Do we now have a limited perf. right in sound recordings?

    John Noble very kindly posted the GATT copyright amendments. I have a question about it:

    Let's say that after the Act's effective date a radio station plays some artist's live album. The album was legitimately recorded; the radio station legitimately bought it; and the station has an ASCAP or BMI license for performing the compositions.

    The copyright owner in the sound recording sues, claiming that the performance of the sound recording was "transmit[ting] or otherwise communicat[ing] to the public the sounds . . . of a live musical performance." Sec. 1101(a)(2). Does the sound recording owner win? Or will a court limit this language to contemporaneous transmissions, or transmissions of unauthorized fixations?

• Eugene Volokh, UCLA Law <volokh[_at_]law.ucla.edu>

> >From the GATT implementation legislation, which recently passed:
>
>
> SEC. 512. CIVIL PENALTIES FOR UNAUTHORIZED FIXATION OF AND TRAFFICKING IN
> SOUND RECORDINGS AND MUSIC VIDEOS OF LIVE MUSICAL PERFORMANCES.
>
> (a) In General.--Title 17, United States Code, is amended by adding at
> the end the following new chapter:
>
> "CHAPTER 11--SOUND RECORDINGS AND MUSIC VIDEOS
>
> "Sec. "1101. Unauthorized fixation and trafficking in sound recordings and
> music videos.
>
> "Sec. 1101. Unauthorized fixation and trafficking in sound recordings
> and music videos
>
> "(a) Unauthorized Acts.--Anyone who, without the consent of the
> performer or performers involved--
>
> "(1) fixes the sounds or sounds and images of a live musical
> performance in a copy or phonorecord, or reproduces copies or
> phonorecords of such a performance from an unauthorized fixation,
>
> "(2) transmits or otherwise communicates to the public the
> sounds or sounds and images of a live musical performance, or
>
> "(3) distributes or offers to distribute, sells or offers to
> sell, rents or offers to rent, or traffics in any copy or
> phonorecord fixed as described in paragraph (1), regardless of
> whether the fixations occurred in the United States, shall be
> subject to the remedies provided in sections 502 through 505,
> to the same extent as an infringer of copyright.
>
> "(b) Definition.--As used in this section, the term 'traffic in' means
> transport, transfer, or otherwise dispose of, to another, as consideration
> for anything of value, or make or obtain control of with intent to
> transport, transfer, or dispose of.
>
> "(c) Applicability.--This section shall apply to any act or acts that
> occur on or after the date of the enactment of the Uruguay Round Agreements
> Act.
>
> "(d) State Law Not Preempted.--Nothing in this section may be construed
> to annul or limit any rights or remedies under the common law or statutes
> of any State.".
>
> (b) Conforming Amendment.--The table of chapters for title 17, United
> States Code, is amended by adding at the end the following:
>
> "11. Sound Recordings and Music Videos..........................1101".
>
> SEC. 513. CRIMINAL PENALTIES FOR UNAUTHORIZED FIXATION OF AND TRAFFICKING
> IN SOUND RECORDINGS AND MUSIC VIDEOS OR LIVE MUSICAL PERFORMANCES.
>
> (a) In General.--Chapter 113 of title 18, United States Code, is
> amended by inserting after section 2319 the following:
>
> "Sec. 2319A. Unauthorized fixation of and trafficking in sound
> recordings and music videos of live musical performances
>
> "(a) Offense.--Whoever, without the consent of the performer or
> performers involved, knowingly and for purposes of commercial advantage or
> private financial gain--
>
> "(1) fixes the sounds or sounds and images of a live musical
> performance in a copy or phonorecord, or reproduces copies or
> phonorecords of such a performance from an unauthorized fixation;
>
> "(2) transmits or otherwise communicates to the public the
> sounds or sounds and images of a live musical performance; or
>
> "(3) distributes or offers to distribute, sells or offers to
> sell, rents or offers to rent, or traffics in any copy or
> phonorecord fixed as described in paragraph (1),
>
> regardless of whether the fixations occurred in the United States; shall be
> imprisoned for not more than 5 years or fined in the amount set forth in
> this title, or both, or if the offense is a second or subsequent offense,
> shall be imprisoned for not more than 10 years or fined in the amount set
> forth in this title, or both.
>
> "(b) Forfeiture and Destruction.--When a person is convicted of a
> violation of subsection (a), the court shall order the forfeiture and
> destruction of any copies or phonorecords created in violation thereof, as
> well as any plates, molds, matrices, masters, tapes, and film negatives by
> means of which such copies or phonorecords may be made. The court may also,
> in its discretion, order the forfeiture and destruction of any other
> equipment by means of which such copies or phonorecords may be reproduced,
> taking into account the nature, scope, and proportionality of the use of
> the equipment in the offense.
>
> "(c) Seizure and Forfeiture.--If copies or phonorecords of sounds or
> sounds and images of a live musical performance are fixed outside of the
> United States without the consent of the performer or performers involved,
> such copies or phonorecords are subject to seizure and forfeiture in the
> United States in the same manner as property imported in violation of the
> customs laws. The Secretary of the Treasury shall, not later than 60 days
> after the date of the enactment of the Uruguay Round Agreements Act, issue
> regulations to carry out this subsection, including regulations by which
> any performer may, upon payment of a specified fee, be entitled to
> notification by the United States Customs Service of the importation of
> copies or phonorecords that appear to consist of unauthorized fixations of
> the sounds or sounds and images of a live musical performance.
>
> "(d) Definitions.--As used in this section--
>
> "(1) the terms 'copy', 'fixed', 'musical work', 'phonorecord',
> 'reproduce', 'sound recordings', and 'transmit' mean those terms
> within the meaning of title 17; and
>
> "(2) the term 'traffic in' means transport, transfer, or
> otherwise dispose of, to another, as consideration for anything of
> value, or make or obtain control of with intent to transport,
> transfer, or dispose of.
>
> "(e) Applicability.--This section shall apply to any Act or Acts that
> occur on or after the date of the enactment of the Uruguay Round Agreements
> Act.".
>
> (b) Conforming Amendment.--The table of sections for chapter 113 of
> title 18, United States Code, is amended by inserting after the item
> relating to section 2319 the following:
>
> "2319A. Unauthorized fixation of and trafficking in sound recordings and
> music videos of live musical performances.".
>
>
> _________
> John F. Noble, Editor
> Computer Law Reporter
> jnoble[_at_]dgs.dgsys.com
Received on Thu Dec 15 1994 - 16:54:46 GMT