Relates to music licensing agreements; provides requirements regarding conduct and contracts related to music licensing agreements; requires music licensing rights to be listed electronically and filed with the department of state.
STATE OF NEW YORK
________________________________________________________________________
7910--A
Cal. No. 909
IN SENATE
March 9, 2018
___________
Introduced by Sen. FUNKE -- read twice and ordered printed, and when
printed to be committed to the Committee on Cultural Affairs, Tourism,
Parks and Recreation -- reported favorably from said committee,
ordered to first and second report, ordered to a third reading,
amended and ordered reprinted, retaining its place in the order of
third reading
AN ACT to amend the arts and cultural affairs law, in relation to music
licensing
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 31.04 of the arts and cultural affairs law, as
2 added by chapter 660 of the laws of 1995, is amended to read as follows:
3 § 31.04. Copyrights. 1. As used in this section:
4 (a) "Copyright owner" means the owner of a copyright of a nondramatic
5 musical work recognized and enforceable under the copyright laws of the
6 United States pursuant to Title 17 of the United States Code, Pub. L.
7 94-553 (17 U.S.C. § 101 et seq.). "Copyright owner" shall not include
8 the owner of a copyright in a motion picture or audiovisual work, or in
9 part of a motion picture or audiovisual work.
10 (b) "Performing rights society" means an association or corporation
11 that licenses the public performance of nondramatic musical works on
12 behalf of copyright owners, such as the American Society of Composers,
13 Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC,
14 Inc.
15 (c) "Proprietor" means the owner of a retail establishment, restau-
16 rant, inn, bar, tavern, sports or entertainment facility, or any other
17 similar place of business or professional office located in this state
18 in which the public may assemble and in which nondramatic musical works
19 or similar copyrighted works may be performed, broadcast, or otherwise
20 transmitted for the enjoyment of members of the public there assembled.
21 (d) "Royalty" or "royalties" means the fees payable to a copyright
22 owner or performing rights society for the public performance rights of
23 nondramatic musical works or other similar works.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14545-04-8
S. 7910--A 2
1 2. Each performing rights society shall make available an electronic
2 link to each form agreement providing for the payment of royalties made
3 available from the performing rights society to any proprietor within
4 the state.
5 3. Each performing rights society shall make available electronically
6 to business proprietors the most current available list of members and
7 affiliates represented by the performing rights society and the most
8 current available list of works that the performing right society
9 licenses.
10 4. Each performing rights society shall make available to the depart-
11 ment of state for posting on the department's website electronic links
12 providing the information required by subdivisions two and three of this
13 section.
14 5. No performing rights society shall enter into, or offer to enter
15 into, a contract for the payment of royalties by a proprietor unless at
16 the time of the offer, or any time thereafter, but no later than seven-
17 ty-two hours prior to the execution of that contract, it provides to the
18 proprietor in writing, the following:
19 (a) a schedule of the rates and terms of royalties under the contract;
20 (b) [upon the request of the proprietor, the opportunity to review the
21 most current available list of the members or affiliates represented by
22 the society;
23 (c) notice that it will make available, upon written request of any
24 proprietor or bona fide trade associations representing groups of
25 proprietors, at the sole expense of the proprietor or bona fide trade
26 associations representing groups of proprietors by electronic means or
27 otherwise, the most current available listing of the copyrighted musical
28 works in such performing rights society's repertory, provided that such
29 notice shall specify the mean by which such information can be secured;
30 (d)] notice that the proprietor has electronic access to the informa-
31 tion made available by the performing rights society pursuant to subdi-
32 visions two and three of this section, such notice shall include how to
33 access such information electronically;
34 (c) notice that the performing rights society has a toll free tele-
35 phone number which can be used to answer inquiries of a proprietor
36 regarding specific musical works and the copyright owners represented by
37 that performing rights society; and
38 [(e)] (d) notice that it complies with federal law and orders of
39 courts having appropriate jurisdiction regarding the rates and terms of
40 royalties and the circumstances under which licenses for rights for
41 public performances are offered to any proprietor.
42 [3.] 6. Every contract between a performing rights society and propri-
43 etor for the payment of the royalties executed, issued or renewed in
44 this state on or after the effective date of this section shall:
45 (a) be in writing;
46 (b) be signed by the parties; and
47 (c) include at least the following information:
48 (1) the proprietor's name and business address and the name and
49 location of each place of business to which the contract applies;
50 (2) the name and address of the performing rights society;
51 (3) the duration of the contract; and
52 (4) the schedule of rates and terms of the royalties to be collected
53 under the contract, including any sliding scale or schedule for any
54 increase or decrease of those rates for the duration of that contract.
55 [4.] 7. No performing rights society, or any agent or employee thereof
56 shall:
S. 7910--A 3
1 (a) with respect to contracts executed, issued or renewed on or after
2 the effective date of this section, collect or attempt to collect from a
3 proprietor licensed by that performing rights society a royalty payment
4 except as provided in a contract executed pursuant to the provisions of
5 this section; or
6 (b) enter onto the premises of a proprietor's business for the purpose
7 of discussing a contract for payment of royalties for the use of copy-
8 righted works by that proprietor without first identifying himself or
9 herself to the proprietor or his or her employees and disclosing that
10 the agent is acting on behalf of such performing rights society and
11 disclosing the purpose of the discussion[; and
12 (c) fail to provide written notice to a proprietor or his or her
13 employees within seventy-two hours after entering the proprietor's busi-
14 ness for the purpose of investigating the possible performance, broad-
15 casting or transmission of non-dramatic musical works, and disclosing
16 that such agent or employee was investigating on behalf of such perform-
17 ing rights society and disclosing:
18 (1) the name of the performing rights society;
19 (2) the date on which such agent or employee conducted the investi-
20 gation; and
21 (3) the copyrighted works in such performing rights society's reperto-
22 ry performed at the business during the investigation.
23 5.].
24 8. A representative or agent of a performing rights society shall not:
25 (a) use obscene, abusive or profane language when communicating with
26 the proprietor or his or her employees;
27 (b) communicate by telephone or in-person with a proprietor other than
28 at the proprietor's place of business during the hours when the proprie-
29 tor's business is open to the public. However, such communications may
30 occur at a location other than the proprietor's place of business or
31 during hours when the proprietor's business is not open to the public if
32 the proprietor or the proprietor's agents, employees, or representatives
33 so authorizes;
34 (c) engage in any coercive conduct, act, or practice that is substan-
35 tially disruptive to a proprietor's business;
36 (d) use or attempt to use any unfair or deceptive act or practice in
37 negotiating with a proprietor; or
38 (e) communicate with an unlicensed proprietor about licensing perform-
39 ances of musical works at the proprietor's establishment after receiving
40 notification in writing from an attorney representing the proprietor
41 that all further communications related to the licensing of the proprie-
42 tor's establishment by the performing rights society should be addressed
43 to the attorney. However, the performing rights society may resume
44 communicating directly with the proprietor if the attorney fails to
45 respond to communications from the performing rights society within
46 sixty days, or the attorney becomes nonresponsive for a period of at
47 least sixty days.
48 9. The department of state shall:
49 (a) inform proprietors of their rights and responsibilities regarding
50 the public performance of copyrighted music as part of the business of
51 licensing service; and
52 (b) encourage performing rights societies to conduct outreach
53 campaigns to educate existing proprietors on their rights and responsi-
54 bilities regarding the public performance of copyrighted music.
55 10. Anyone who willfully violates any of the provisions of this
56 section may be liable for a civil penalty of not more than one thousand
S. 7910--A 4
1 dollars per violation. Multiple violations on a single day may be
2 considered separate violations. The attorney general may seek recovery
3 of all such penalties in a civil action. The attorney general may issue
4 civil investigative demands for the inspection of documents, interroga-
5 tory responses, and oral testimony in the enforcement of this section.
6 11. Any person who suffers a violation of this section may bring an
7 action to recover actual damages and reasonable attorney's fees and seek
8 an injunction or any other remedy available at law or in equity. This
9 section shall not apply to contracts between performing rights societies
10 and broadcasters licensed by the federal communications commission or to
11 contracts with cable operators, programmers or other transmission
12 services. This section shall also not apply to investigations conducted
13 by law enforcement agencies or other persons with respect to a suspected
14 violation of article two hundred seventy-five of the penal law.
15 12. Nothing in this section may be construed to prohibit performing
16 rights societies from conducting investigations to determine the exist-
17 ence of music use by a proprietor's business or informing a proprietor
18 of the proprietor's obligations under the copyright laws of the United
19 States pursuant to Title 17 of the United States Code (17 U.S.C. Sec.
20 101, et seq.).
21 § 2. This act shall take effect January 1, 2019.