17 U.S.C. § 513 — Determination of reasonable license fees

Page 179 TITLE 17—COPYRIGHTS § 513 for purposes of applying this section. Whether a service provider qualifies for the limitation on liability in any one of those subsections shall be based solely on the criteria in that subsection, and shall not affect a determination of whether that service provider qualifies for the limita- tions on liability under any other such sub- section. (Added Pub. L. 105–304, title II, § 202(a), Oct. 28, 1998, 112 Stat. 2877; amended Pub. L. 106–44, § 1(d), Aug. 5, 1999, 113 Stat. 222; Pub. L. 111–295, § 3(a), Dec. 9, 2010, 124 Stat. 3180.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Civil Procedure, referred to in subsec. (h)(6), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure. CODIFICATION Another section 512 was renumbered section 513 of this title. AMENDMENTS 2010—Subsec. (c)(2). Pub. L. 111–295 struck out ‘‘, in both electronic and hard copy formats’’ after ‘‘Inter- net’’ in concluding provisions. 1999—Subsec. (e). Pub. L. 106–44, § 1(d)(1)(A), sub- stituted ‘‘Limitation on Liability of Nonprofit Edu- cational Institutions’’ for ‘‘Limitation on liability of nonprofit educational institutions’’ in heading. Subsec. (e)(2). Pub. L. 106–44, § 1(d)(1)(B), struck out par. heading ‘‘Injunctions’’. Subsec. (j)(3). Pub. L. 106–44, § 1(d)(2), substituted ‘‘Notice and ex parte orders’’ for ‘‘Notice and Ex Parte Orders’’ in heading. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 105–304, title II, § 203, Oct. 28, 1998, 112 Stat. 2886, provided that: ‘‘This title [enacting this section and 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 the enactment of this Act [Oct. 28, 1998].’’ § 513. Determination of reasonable license fees for individual proprietors In the case of any performing rights society subject to a consent decree which provides for the determination of reasonable license rates or fees to be charged by the performing rights soci- ety, notwithstanding the provisions of that con- sent decree, an individual proprietor who owns or operates fewer than 7 non-publicly traded es- tablishments in which nondramatic musical works are performed publicly and who claims that any license agreement offered by that per- forming rights society is unreasonable in its li- cense rate or fee as to that individual propri- etor, shall be entitled to determination of a rea- sonable license rate or fee as follows: (1) The individual proprietor may commence such proceeding for determination of a reason- able license rate or fee by filing an application in the applicable district court under para- graph (2) that a rate disagreement exists and by serving a copy of the application on the performing rights society. Such proceeding shall commence in the applicable district court within 90 days after the service of such copy, except that such 90-day requirement shall be subject to the administrative require- ments of the court. (2) The proceeding under paragraph (1) shall be held, at the individual proprietor’s election, in the judicial district of the district court with jurisdiction over the applicable consent decree or in that place of holding court of a district court that is the seat of the Federal circuit (other than the Court of Appeals for the Federal Circuit) in which the proprietor’s establishment is located. (3) Such proceeding shall be held before the judge of the court with jurisdiction over the consent decree governing the performing rights society. At the discretion of the court, the proceeding shall be held before a special master or magistrate judge appointed by such judge. Should that consent decree provide for the appointment of an advisor or advisors to the court for any purpose, any such advisor shall be the special master so named by the court. (4) In any such proceeding, the industry rate shall be presumed to have been reasonable at the time it was agreed to or determined by the court. Such presumption shall in no way affect a determination of whether the rate is being correctly applied to the individual proprietor. (5) Pending the completion of such pro- ceeding, the individual proprietor shall have the right to perform publicly the copyrighted musical compositions in the repertoire of the performing rights society by paying an in- terim license rate or fee into an interest bear- ing escrow account with the clerk of the court, subject to retroactive adjustment when a final rate or fee has been determined, in an amount equal to the industry rate, or, in the absence of an industry rate, the amount of the most recent license rate or fee agreed to by the par- ties. (6) Any decision rendered in such proceeding by a special master or magistrate judge named under paragraph (3) shall be reviewed by the judge of the court with jurisdiction over the consent decree governing the performing rights society. Such proceeding, including such review, shall be concluded within 6 months after its commencement. (7) Any such final determination shall be binding only as to the individual proprietor commencing the proceeding, and shall not be applicable to any other proprietor or any other performing rights society, and the per- forming rights society shall be relieved of any obligation of nondiscrimination among simi- larly situated music users that may be im- posed by the consent decree governing its op- erations. (8) An individual proprietor may not bring more than one proceeding provided for in this section for the determination of a reasonable license rate or fee under any license agree- ment with respect to any one performing rights society. (9) For purposes of this section, the term ‘‘industry rate’’ means the license fee a per- forming rights society has agreed to with, or which has been determined by the court for, a significant segment of the music user industry to which the individual proprietor belongs. Page 180 TITLE 17—COPYRIGHTS [§ 601 1 So in original. Does not conform to section catchline. (Added Pub. L. 105–298, title II, § 203(a), Oct. 27, 1998, 112 Stat. 2831, § 512; renumbered § 513, Pub. L. 106–44, § 1(c)(1), Aug. 5, 1999, 113 Stat. 221.) Editorial Notes AMENDMENTS 1999—Pub. L. 106–44 renumbered section 512 of this title as this section. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 27, 1998, see sec- tion 207 of Pub. L. 105–298, set out as an Effective Date of 1998 Amendment note under section 101 of this title. CHAPTER 6—IMPORTATION AND EXPORTATION Sec. [601. Repealed.] 602.1 Infringing importation of copies or phonorecords. 603. Importation prohibitions: Enforcement and disposition of excluded articles. Editorial Notes AMENDMENTS 2010—Pub. L. 111–295, § 4(a), (b)(1)(A), Dec. 9, 2010, 124 Stat. 3180, substituted ‘‘IMPORTATION AND EXPOR- TATION’’ for ‘‘MANUFACTURING REQUIREMENTS, IMPORTATION, AND EXPORTATION’’ in chapter heading and struck out item 601 ‘‘Manufacture, impor- tation, and public distribution of certain copies’’. 2008—Pub. L. 110–403, title I, § 105(a), Oct. 13, 2008, 122 Stat. 4259, substituted ‘‘MANUFACTURING REQUIRE- MENTS, IMPORTATION, AND EXPORTATION’’ for ‘‘MANUFACTURING REQUIREMENTS AND IMPOR- TATION’’ in chapter heading. [§ 601. Repealed. Pub. L. 111–295, § 4(a), Dec. 9, 2010, 124 Stat. 3180] Section, Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2588; Pub. L. 97–215, July 13, 1982, 96 Stat. 178; Pub. L. 105–80, § 12(a)(15), (16), Nov. 13, 1997, 111 Stat. 1535; Pub. L. 110–403, title I, § 105(c)(2), Oct. 13, 2008, 122 Stat. 4260, related to manufacture, importation, and public distribution of certain copies of nondramatic English- language literary material protected under this title. § 602. Infringing importation or exportation of copies or phonorecords (a) INFRINGING IMPORTATION OR EXPORTATION.— (1) IMPORTATION.—Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been ac- quired outside the United States is an in- fringement of the exclusive right to distribute copies or phonorecords under section 106, ac- tionable under section 501. (2) IMPORTATION OR EXPORTATION OF INFRING- ING ITEMS.—Importation into the United States or exportation from the United States, without the authority of the owner of copy- right under this title, of copies or phonorecords, the making of which either con- stituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under sec- tion 106, actionable under sections 501 and 506. (3) EXCEPTIONS.—This subsection does not apply to— (A) importation or exportation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use; (B) importation or exportation, for the pri- vate use of the importer or exporter and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States or departing from the United States with respect to copies or phonorecords form- ing part of such person’s personal baggage; or (C) importation by or for an organization operated for scholarly, educational, or reli- gious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival pur- poses, and no more than five copies or phonorecords of any other work for its li- brary lending or archival purposes, unless the importation of such copies or phonorecords is part of an activity con- sisting of systematic reproduction or dis- tribution, engaged in by such organization in violation of the provisions of section 108(g)(2). (b) IMPORT PROHIBITION.—In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited. In a case where the copies or phonorecords were lawfully made, United States Customs and Border Protection has no authority to prevent their importation. In either case, the Secretary of the Treasury is authorized to pre- scribe, by regulation, a procedure under which any person claiming an interest in the copyright in a particular work may, upon payment of a specified fee, be entitled to notification by United States Customs and Border Protection of the importation of articles that appear to be copies or phonorecords of the work. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2589; Pub. L. 110–403, title I, § 105(b), (c)(1), Oct. 13, 2008, 122 Stat. 4259, 4260; Pub. L. 111–295, § 4(c), Dec. 9, 2010, 124 Stat. 3181.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Scope of the Section. Section 602, which has nothing to do with the manufacturing requirements of section 601, deals with two separate situations: importation of ‘‘piratical’’ articles (that is, copies or phonorecords made without any authorization of the copyright owner), and unauthorized importation of copies or phonorecords that were lawfully made. The general ap- proach of section 602 is to make unauthorized importa- tion an act of infringement in both cases, but to permit the United States Customs Service to prohibit importa- tion only of ‘‘piratical’’ articles.