Current Status Bill Number:4078 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19950412 Primary Sponsor:Kelley, All Sponsors:Kelley, Keyserling, Thomas, Martin, Riser, Wilkes, Worley, Keegan, J. Young and T. Brown Drafted Document Number:bbm\10157sd.95 Residing Body:Senate Current Committee:Judiciary Committee 11 SJ Date of Last Amendment:19960226 Subject:Nondramatic musical works, copyrighted
Body Date Action Description Com Leg Involved
______ ________ _______________________________________ _______ ____________
Senate 19960227 Introduced, read first time, 11 SJ
referred to Committee
House 19960227 Read third time, sent to Senate
House 19960226 Unanimous consent for third
reading on the next Legislative day
House 19960226 Amended, read second time
House 19960221 Committee report: Favorable with 26 HLCI
amendment
House 19950412 Introduced, read first time, 26 HLCI
referred to Committee
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AMENDED
February 26, 1996
H. 4078
Introduced by REPS. Kelley, Keyserling, Thomas, Martin, Riser, Wilkes, Worley, Keegan, J. Young and T. Brown
S. Printed 2/26/96--H.
Read the first time April 12, 1995.
TO AMEND TITLE 39, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO TRADE AND COMMERCE BY ADDING CHAPTER 18 SO AS TO REGULATE PRACTICES AND AGREEMENTS CONCERNING THE LICENSING OF COPYRIGHTED NONDRAMATIC MUSICAL WORKS, TO AUTHORIZE CERTAIN CIVIL REMEDIES FOR VIOLATIONS INCLUDING INJUNCTIVE RELIEF AND PETITION FOR TERMINATION OF CONTRACT, AND TO PROVIDE CRIMINAL PENALTIES FOR VIOLATIONS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly finds and declares that:
(A) Under the copyright laws of the United States, a copyright owner may enforce the rights thereof against the owners of restaurants, bars, retail establishments, doctors' and other professionals' offices, and similar places of business where members of the public may assemble, for the public performance of music, whether it be in person by a performing artist hired by the proprietor, or on radio stations or other electronic media transmitted, received or rebroadcast by the proprietor at those places of business.
(B) These proprietors, usually small businessmen and women who through their businesses and professions contribute to the economy of this State and employ its citizens, recognize the copyright laws of the United States and the purposes for which they were enacted and should be enforced, and acknowledge their obligations thereunder for use of copyrighted works in their places of business.
(C) The proprietors of such establishments have raised substantial concerns as to enforcement and collections practices by the owners of these copyrights or their agents. These proprietors are entitled to certain safeguards in the operation of their businesses, which will protect them from any arbitrary, capricious, and unfair trade practices, permit them to negotiate fairly with the copyright owners or their agents in arriving at appropriate terms and conditions for the use of the copyrighted work in their places of business, and thereafter will assure them, with some reasonable degree of certainty, the ability to ascertain their true obligations and rights in the future use of such copyrighted work.
(D) Although the rights and responsibilities regarding copyrighted works are founded in Article I, Section VIII, Clause 8 of the United States Constitution and exclusively governed by Title 17 of the United States Code, it is nonetheless essential that the State of South Carolina protect its business owners and citizens from the practices of those who would enforce their rights under the federal law in an arbitrary and capricious manner.
(E) It is therefore in the best interests of the State, its business community and consumers alike, that the following be enacted.
SECTION 2. Title 39 of the 1976 Code is amended by adding:
Section 39-18-10. As used in this chapter:
(1) `Copyright owner' means the owner of a copyright of a nondramatic musical work recognized and enforceable under the copyright laws of the United States pursuant to Title 17 of the United States Code, Public Law 94-553. `Copyright owner' shall not include the owner of a copyright in a motion picture or audiovisual work, or in part of a motion picture or audiovisual work.
(2) `Performing rights society' means an association or corporation that licenses the public performance of nondramatic musical works on behalf of copyright owners, including but not limited to the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc.
(3) `Proprietor' means the owner of a retail establishment, restaurant, inn, bar, tavern, or any other similar place of business or professional office located in this State in which the public may assemble and in which nondramatic musical works may be performed, broadcast, or otherwise transmitted for the enjoyment of the members of the public there assembled.
(4) `Royalty' or `royalties' means the fees payable to a copyright owner or performing rights society for the public performance of nondramatic musical work.
Section 39-18-20. No performing rights society shall enter into, or offer to enter into, a contract for the payment of royalties by a proprietor unless at the time of the offer, or any time thereafter, but no later than seventy-two hours before the execution of that contract, it provides to the proprietor in writing, the following:
(1) a schedule of the rates and terms of royalties under the contract;
(2) notice, that it will make available upon the written request of a proprietor, the most current available list of members or affiliates represented by the performing rights society and the most current available list of no less than the performed works that it licenses. The lists required by this subsection (2) shall be provided to the proprietor electronically at his option. The performing rights society may charge the proprietor for such information an amount not to exceed its actual cost of producing such information.
Section 39-18-30. Every contract for the payment of royalties executed, issued or renewed in this State on or after the effective date of this chapter shall:
(1) be in writing;
(2) be signed by the parties;
(3) be for a specific period after which term the contract shall be automatically renewed upon the same terms and conditions unless either party thereto provides written notice at least thirty days before the termination date of that contract of its desire to terminate that contract or to change its terms and conditions, utilizing the same annual percentage of increases, if any, as provided in the initial contract. This provision shall not apply to a contract offered to a proprietor if the terms of the contract were negotiated between a performing rights society and a bona fide national or state trade association, representing similarly situated proprietors, or determined by a federal court to be applicable to similarly situated proprietors;
(4) include at least the following information:
(a) the proprietor's name and business address and the name and location of each place of business to which the contract applies;
(b) the duration of the contract; and
(c) the schedule of rates and terms of the royalties to be collected under the contract, including any sliding scale or schedule for any increase or decrease of those rates for the duration of that contract.
Section 39-18-40. No performing rights society, or any agent or employee thereof shall:
(1) on the premises of the proprietor's business, discuss with the proprietor or his employees, or inquire of them regarding, a contract for the payment of royalties by a proprietor or the use of copyrighted works by that proprietor without first identifying himself to the proprietor or his employees;
(2) with respect to contracts executed, issued or renewed on or after the effective date of this chapter, collect or attempt to collect a royalty payment or any other fee except as provided in a contract executed pursuant to the provisions of this chapter;
(3) engage in any coercive conduct, act or practice in negotiating with a proprietor that is disruptive to the proprietor's business, or charging or collecting a royalty which is unreasonably higher or lower than the music licensing agency's published rate charts in the area for similar businesses consistent with federal consent decrees.
Section 39-18-50. Any person who suffers a violation of this chapter may bring an action to recover actual damages and reasonable attorney's fees, may seek an injunction to enjoin the violation, and may seek any other available remedy allowed by law.
Section 39-18-60. The rights, remedies, and prohibitions accorded by the provisions of this chapter shall be in addition to and cumulative of any other right, remedy, or prohibition accorded by common law, federal law, or the statutes of this State, and nothing contained in this chapter shall be construed to deny, abrogate, or impair any such common law or statutory right, remedy, or prohibition.
Section 39-18-70. This chapter shall not apply to:
(1) contracts between copyright owners or performing rights societies and broadcasters licensed by the Federal Communications Commission; and
(2) investigations conducted by law enforcement agencies or other persons with respect to a suspected violation of Sections 16-11-910, 16-11-915, 16-11-920, 16-11-930, 16-11-940, or any combination of these sections.
Section 39-18-80. Nothing in this chapter shall be construed to prevent the performing rights society from informing the proprietor of the proprietor's obligations under the federal copyright law, Title 17 of the United State Code, or from exercising any exclusive rights preempted under Section 301(a) of the Title 17 of the United States Code."
SECTION 3. If any provision of Chapter 18, Title 39 of the 1976 Code or the application thereof to any person or circumstance is held to be unconstitutional or otherwise invalid, the remainder of this chapter and the application of such provision to other persons or circumstances are not affected thereby, and it is to be conclusively presumed that the General Assembly would have enacted the remainder of this chapter without such invalid or unconstitutional provision.
SECTION 4. This act takes effect July 1, 1996.