Bill Text: HI SB1287 | 2015 | Regular Session | Amended

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Bill Title: Copyright; Sound Recordings

Spectrum: Partisan Bill (Democrat 9-0)

Status: (Engrossed - Dead) 2015-04-08 - The committee(s) on CPC recommend(s) that the measure be deferred. [SB1287 Detail]

Download: Hawaii-2015-SB1287-Amended.html

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THE SENATE	S.B. NO.	1287
TWENTY-EIGHTH LEGISLATURE, 2015		S.D. 2
STATE OF HAWAII		H.D. 1

A BILL FOR AN ACT

 

 

RELATING TO COPYRIGHTS.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The legislature finds that the federal Copyright Act of 1976, specifically, 17 U.S.C. section 301(c), explicitly allows states to regulate, until February 15, 2067, rights and interests arising from sound recordings that were fixed prior to February 15, 1972.  However, Hawaii law, specifically, chapter 482C, Hawaii Revised Statutes, which was enacted in 1975 to protect against record piracy, places enforcement in the hands of law enforcement without providing artists with adequate civil means to enforce their rights to works that were fixed prior to February 15, 1972.  The legislature further finds that artists themselves have the most at stake in enforcing their rights, and that the artists from the golden era of Hawaiian music deserve the same opportunity to profit from their work as that enjoyed by artists in California.

     Specifically, in California, the United States District Court for the Central District of California, in its 2014 decision of Flo & Eddie, Inc. v. Sirius XM Radio, Inc. et al., Case No. CV 13-5693 PSG (RZx) (Sept. 22, 2014), while recognizing that the federal Copyright Act of 1976 explicitly allows states to regulate rights and interests arising from sound recordings fixed prior to February 15, 1972, also held that California Civil Code, section 980(a)(2), recognizes a comprehensive ownership interest in sound recordings fixed prior to February 15, 1972, subject only to the narrow exception included in that statute.

     The purpose of this Act is to protect, until February 15, 2067, all original works of authorship that are embodied in sound recordings, including the public performance of the sound recordings, and are not currently protected by the federal Copyright Act of 1976, as may be amended from time to time.

     SECTION 2.  Chapter 482C, Hawaii Revised Statutes, is amended by adding six new sections to be appropriately designated and to read as follows:

     "§482C-A  Sound recordings fixed prior to February 15, 1972.  (a)  The author of an original work of authorship consisting of a sound recording initially fixed prior to February 15, 1972, has an exclusive ownership interest in the original work until February 15, 2067, against all persons except a person who independently makes or duplicates another sound recording that does not directly or indirectly recapture the actual sounds fixed in the original work, but consists entirely of an independent fixation of other sounds, even though the sounds imitate or simulate the sounds contained in the original work.

     (b)  This section shall not limit, annul, or diminish in any respect any rights, exclusive or otherwise, in sound recordings fixed prior to February 15, 1972, existing under Hawaii common law or civil or criminal statutes.  The codification of certain of these rights that give rise to statutory causes of action for the violation of those rights shall not be construed to limit other causes of action under either Hawaii common law or the civil or criminal statutes.

     (c)  Any civil causes of action shall take effect upon the availability of sound recordings for license through one or more collecting societies or rights management organizations.

     §482C-B  Infringement of sound copyright.  Subject to section 482C-4, any person who violates the rights of the author or the legal and beneficial owner of the copyright as provided in this chapter is an infringer of the copyright and shall be liable in a civil action by the author or the legal and beneficial owner of the copyright for any and all of the damages and remedies provided in this chapter.  The enumeration of any right or remedy under this chapter shall not adversely affect the rights of an author or the legal and beneficial owner of the copyright to pursue criminal penalties under other laws of this State.

     §482C-C  Injunctive relief.  (a)  Actual or threatened infringement may be enjoined.  The court may also order that any copies in the possession or control of any infringer, including any media containing those sound records, be delivered to an officer of the court, or to the author or the legal and beneficial owner of the copyright, to be destroyed.

     (b)  For exceptional circumstances, an injunction may condition future use upon the payment of a reasonable royalty or license fee for a period not to exceed the period of time under which the use could have been prohibited.  Exceptional circumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring infringing material that renders a prohibitive injunction inequitable.  The alleged infringer shall bear the burden of proof in proving exceptional circumstances.

     §482C-D  Damages; general; exemplary.  (a)  The author or the legal and beneficial owner of the copyright may recover damages for infringement.  At the option of the author or the legal and beneficial owner of the copyright, damages may be calculated based upon either:

     (1)  The actual loss sustained by the author or the legal and beneficial owner of the copyright that is caused by infringement and the unjust enrichment caused by the infringement that is not taken into account in computing actual loss; or

     (2)  Statutory damages calculated in the amount of not less than $750 nor more than $30,000, as the court deems appropriate.

     (b)  Where there is evidence of wilful or malicious infringement, the court may award exemplary damages in an amount not exceeding three times any award made under subsection (a).  The court, in its discretion, may enter judgment for an amount not to exceed three times the lost profits and damages incurred by the author or the legal and beneficial owner of the copyright   and award reasonable attorneys' fees to the author or the legal and beneficial owner of the copyright when the court finds that the infringers committed the wrongful acts knowingly or in bad faith.

     §482C-E  Attorneys' fees.  In any civil action under this chapter, the court, in its discretion, may allow the recovery of full costs by or against any party other than the State or an officer thereof.  Except as otherwise provided by this chapter, the court may also award a reasonable attorneys' fee to the prevailing party as part of the costs.

     §482C-F  Sound recording statutory licensing; rights management organization.  (a)  Public performance of a sound recording shall be subject to statutory licensing as described in this section.  The performer and the author or the legal and beneficial owner of the copyright of a sound recording shall be entitled to be paid equitable remuneration for the public performance or its communication to the public by telecommunication.

     (b)  A person who performs a published sound recording in public or communicates it to the public by telecommunication shall pay royalties for a license to the collecting society or rights management organization selected by the author or the legal and beneficial owner of the copyright to collect fees, distribute fees, and represent members who are authors or legal and beneficial owners of copyrights.

     (c)  In negotiating statutory licenses in accordance with this section, any author or the legal and beneficial owner of the copyright of sound recordings and any entities performing sound recordings affected by this section may negotiate and agree upon the royalty rates and license terms and conditions for the performance of the sound recordings and the proportionate division of fees to be paid among the authors or the legal and beneficial owners of the copyright, and may designate common agents on a nonexclusive basis to negotiate, agree to, pay, or receive payments.

     (d)  For licenses granted under this chapter for performances by interactive services or for performances that exceed the sound recording performance complement:

     (1)  The author or the legal and beneficial owner of the copyright of sound recordings affected by this section may designate a collective society or performing rights organization to act on its behalf to grant licenses and receive and remit royalty payments; provided that the author or the legal and beneficial owner of the copyright shall establish the royalty rates and material license terms and conditions without recourse to any agreement with, or in combination or concert with, any other authors or the legal and beneficial owners of copyrights of sound recordings; and

     (2)  Entities performing sound recordings affected by this section may designate common agents to act on their behalf to obtain licenses and collect and pay royalty fees; provided that each entity performing sound recordings shall determine the royalty rates and material license terms and conditions without recourse to any agreement with, or in combination or concert with, any other entities performing sound recordings.

     (e)  License fees from sound recordings covered by this chapter shall be allocated as follows:

     (1)  A featured recording artist who performs on a sound recording that has been licensed for a public performance shall be entitled to receive payments from the author or the legal and beneficial owner of the copyright of the sound recording in accordance with the terms of the artist's contract; and

     (2)  A nonfeatured recording artist who performs on a sound recording that has been licensed for a public performance shall be entitled to receive payments from the author or the legal and beneficial owner of the copyright of the sound recording in accordance with the terms of the nonfeatured recording artist's applicable contract or other applicable agreement.

     (f)  The author or the legal and beneficial owner of the copyright of the exclusive right to publicly perform a sound recording by means of a digital audio transmission shall allocate the author's or the legal and beneficial owner's receipts from the statutory licensing of the sound recording to recording artists in the following manner:

     (1)  Twenty-one per cent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by the authors or the legal and beneficial owner of the copyrights of sound recordings and the American Federation of Musicians, or any successor entity, to be distributed to nonfeatured musicians, whether or not members of the American Federation of Musicians, who have performed on sound recordings;

     (2)  Twenty-one per cent of the receipts shall be deposited in an escrow account managed by an independent administrator jointly appointed by the authors or the legal and beneficial owner of copyrights of sound recordings and the American Federation of Television and Radio Artists, or any successor entity, to be distributed to nonfeatured vocalists, whether or not they are members of the American Federation of Television and Radio Artists, who have performed on sound recordings; and

     (3)  Forty-five per cent of the receipts shall be allocated, on a per sound recording basis, to the recording artist, the artists featured on the sound recording, or the persons conveying rights in the artists' performance in the sound recordings.

     (g)  If the author or the legal and beneficial owner of the copyright of a sound recording licenses an affiliated entity the right to publicly perform a sound recording by means of a digital audio transmission under this section, the author or the legal and beneficial owner of the copyright shall make the licensed sound recording available on no less favorable terms and conditions to all bona fide entities that offer similar services; provided that if there are material differences in the scope of the requested license with respect to the type of service, the particular sound recordings licensed, the frequency of use, the number of subscribers served, or the duration, then the author or the legal and beneficial owner of the copyright  may establish different terms and conditions for those other services.

     (h)  The limitation set forth in subsection (g) shall not apply in the case where the author or the legal and beneficial owner of the copyright of a sound recording licenses:

     (1)  An interactive service; or

     (2)  An entity to perform publicly up to forty-five seconds of the sound recording and the sole purpose of the performance is to promote the distribution or performance of that sound recording.

     (i)  The author or the legal and beneficial owner of a copyright in sound recordings may freely negotiate licenses for the sound recording individually; provided that civil remedies for infringement under this chapter shall not be available unless the sound recording is made available for license through a collecting society or performing rights management organization."

     SECTION 3.  Section 482C-4, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§482C-4[]]  Lawful uses; [defined.] limitations on exclusive right.  This chapter shall not apply to any person who transfers or causes to be transferred any sounds [intended for or in connection with radio or television broadcast transmission or related uses, for archival purposes, or solely for the personal use of the person transferring or causing the transfer and with no purpose of capitalizing commercially on such reproduction.] or publicly performs any work, in its current form, for non-commercial educational use, archival use, or "fair use" as the term is used in the federal Copyright Act of 1976, as may be amended from time to time, or transfers or causes to be transferred or publicly performs the work under a negotiated or statutory license for transfer or performance of the sound recording."

     SECTION 4.  In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 5.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 6.  This Act shall take effect upon its approval.

 

 

Report Title:

Copyright; Sound Recordings

 

Description:

Protects sound recordings fixed prior to 02/15/1972 against unauthorized public performance.  Protects any right in sound recordings fixed prior 02/15/1972 existing under Hawaii common law, or civil or criminal statutes.  Establishes civil remedies for violations.  (HD1)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.