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Platform Equality and Remedies for Rights Holders in Music Act of 2007 (S. 256): Section-by-Section Analysis

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As new technologies have changed the ways in which copyrighted musical works and sound recordings may be reproduced, distributed, and publicly performed, copyright owners, broadcasters, and music vendors have become increasingly concerned that the various compulsory licenses applicable to sound recordings result in different treatment for entities offering similar services. S. 256, the Platform Equality and Remedies for Rights Holders in Music Act of 2007 (the Perform Act), represents one legislative approach to resolving these concerns, at least as they apply to digital public performances of sound recordings.

The Perform Act would amend 17 U.S.C. Section 112 to require that webcasters pay copyright owners a compulsory license fee based on the fair market value of their works when making "ephemeral recordings." It would similarly change the terms under which transmission services obtain compulsory licenses for digital public performances of copyrighted sound recordings under 17 U.S.C. Section 114(f) by (1) providing for compulsory licenses for all types of transmission services under the same statutory provision, (2) setting license fees for all types of transmission services based on the same three criteria, and (3) using the fair market value of the works licensed as the standard for determining all compulsory license fees.

The Perform Act also strengthens the requirements of 17 U.S.C. Section 114(d) to ensure that transmission services cannot rely on a compulsory license for digital public performance in order to distribute sound recordings to listeners. It further adds a concept of "reasonable recording" to 17 U.S.C. Section 114(j), under which transmission services, in order to qualify for the compulsory public performance license, must employ technological measures to limit copying or recording by listeners.

Finally, the Perform Act requires that the Register of Copyrights convene a meeting between owners of copyrighted sound recordings and transmitting services no later than 60 days after its enactment to discuss the creation of a new category for "limited interactive services" and set appropriate compulsory license fees for these services.