Nothing in this clause shall
limit the scope of the exemption in clause (ii).
(2) Statutory licensing of certain transmissions.-
The performance of a sound recording publicly by means of a subscription
digital audio transmission not exempt under paragraph (1), an eligible
nonsubscription transmission, or a transmission not exempt under
paragraph (1) that is made by a preexisting satellite digital audio
radio service shall be subject to statutory licensing, in accordance
with subsection (f) if-
(A)(i) the transmission is not part of an interactive service;
(ii) except in the case of a transmission to a business establishment,
the transmitting entity does not automatically and intentionally cause
any device receiving the transmission to switch from one program channel
to another; and
(iii) except as provided in section 1002(e), the transmission of the
sound recording is accompanied, if technically feasible, by the
information encoded in that sound recording, if any, by or under the
authority of the copyright owner of that sound recording, that
identifies the title of the sound recording, the featured recording
artist who performs on the sound recording, and related information,
including information concerning the underlying musical work and its
writer;
(B) in the case of a subscription transmission not exempt under
paragraph (1) that is made by a preexisting subscription service in the
same transmission medium used by such service on July 31, 1998, or in
the case of a transmission not exempt under paragraph (1) that is made
by a preexisting satellite digital audio radio service-
(i) the transmission does not exceed the sound recording performance
complement; and
(ii) the transmitting entity does not cause to be published by means of
an advance program schedule or prior announcement the titles of the
specific sound recordings or phonorecords embodying such sound
recordings to be transmitted; and
(C) in the case of an eligible nonsubscription transmission or a
subscription transmission not exempt under paragraph (1) that is made by
a new subscription service or by a preexisting subscription service
other than in the same transmission medium used by such service on July
31, 1998-
(i) the transmission does not exceed the sound recording performance
complement, except that this requirement shall not apply in the case of
a retransmission of a broadcast transmission if the retransmission is
made by a transmitting entity that does not have the right or ability to
control the programming of the broadcast station making the broadcast
transmission, unless-
(I) the broadcast station makes broadcast transmissions-
(aa) in digital format that regularly exceed the sound recording
performance complement; or
(bb) in analog format, a substantial portion of which, on a weekly
basis, exceed the sound recording performance complement; and
(II) the sound recording copyright owner or its representative has
notified the transmitting entity in writing that broadcast transmissions
of the copyright owner's sound recordings exceed the sound recording
performance complement as provided in this clause;
(ii) the transmitting entity does not cause to be published, or induce
or facilitate the publication, by means of an advance program schedule
or prior announcement, the titles of the specific sound recordings to be
transmitted, the phonorecords embodying such sound recordings, or, other
than for illustrative purposes, the names of the featured recording
artists, except that this clause does not disqualify a transmitting
entity that makes a prior announcement that a particular artist will be
featured within an unspecified future time period, and in the case of a
retransmission of a broadcast transmission by a transmitting entity that
does not have the right or ability to control the programming of the
broadcast transmission, the requirement of this clause shall not apply
to a prior oral announcement by the broadcast station, or to an advance
program schedule published, induced, or facilitated by the broadcast
station, if the transmitting entity does not have actual knowledge and
has not received written notice from the copyright owner or its
representative that the broadcast station publishes or induces or
facilitates the publication of such advance program schedule, or if such
advance program schedule is a schedule of classical music programming
published by the broadcast station in the same manner as published by
that broadcast station on or before September 30, 1998;
(iii) the transmission-
(I) is not part of an archived program of less than 5 hours duration;
(II) is not part of an archived program of 5 hours or greater in
duration that is made available for a period exceeding 2 weeks;
(III) is not part of a continuous program which is of less than 3 hours
duration; or
(IV) is not part of an identifiable program in which performances of
sound recordings are rendered in a predetermined order, other than an
archived or continuous program, that is transmitted at-
(aa) more than 3 times in any 2-week period that have been publicly
announced in advance, in the case of a program of less than 1 hour in
duration, or
(bb) more than 4 times in any 2-week period that have been publicly
announced in advance, in the case of a program of 1 hour or more in
duration, except that the requirement of this subclause shall not apply
in the case of a retransmission of a broadcast transmission by a
transmitting entity that does not have the right or ability to control
the programming of the broadcast transmission, unless the transmitting
entity is given notice in writing by the copyright owner of the sound
recording that the broadcast station makes broadcast transmissions that
regularly violate such requirement;
(iv) the transmitting entity does not knowingly perform the sound
recording, as part of a service that offers transmissions of visual
images contemporaneously with transmissions of sound recordings, in a
manner that is likely to cause confusion, to cause mistake, or to
deceive, as to the affiliation, connection, or association of the
copyright owner or featured recording artist with the transmitting
entity or a particular product or service advertised by the transmitting
entity, or as to the origin, sponsorship, or approval by the copyright
owner or featured recording artist of the activities of the transmitting
entity other than the performance of the sound recording itself;
(v) the transmitting entity cooperates to prevent, to the extent
feasible without imposing substantial costs or burdens, a transmission
recipient or any other person or entity from automatically scanning the
transmitting entity's transmissions alone or together with transmissions
by other transmitting entities in order to select a particular sound
recording to be transmitted to the transmission recipient, except that
the requirement of this clause shall not apply to a satellite digital
audio service that is in operation, or that is licensed by the Federal
Communications Commission, on or before July 31, 1998;
(vi) the transmitting entity takes no affirmative steps to cause or
induce the making of a phonorecord by the transmission recipient, and if
the technology used by the transmitting entity enables the transmitting
entity to limit the making by the transmission recipient of phonorecords
of the transmission directly in a digital format, the transmitting
entity sets such technology to limit such making of phonorecords to the
extent permitted by such technology;
(vii) phonorecords of the sound recording have been distributed to the
public under the authority of the copyright owner or the copyright owner
authorizes the transmitting entity to transmit the sound recording, and
the transmitting entity makes the transmission from a phonorecord
lawfully made under the authority of the copyright owner, except that
the requirement of this clause shall not apply to a retransmission of a
broadcast transmission by a transmitting entity that does not have the
right or ability to control the programming of the broadcast
transmission, unless the transmitting entity is given notice in writing
by the copyright owner of the sound recording that the broadcast station
makes broadcast transmissions that regularly violate such requirement;
(viii) the transmitting entity accommodates and does not interfere with
the transmission of technical measures that are widely used by sound
recording copyright owners to identify or protect copyrighted works, and
that are technically feasible of being transmitted by the transmitting
entity without imposing substantial costs on the transmitting entity or
resulting in perceptible aural or visual degradation of the digital
signal, except that the requirement of this clause shall not apply to a
satellite digital audio service that is in operation, or that is
licensed under the authority of the Federal Communications Commission,
on or before July 31, 1998, to the extent that such service has
designed, developed, or made commitments to procure equipment or
technology that is not compatible with such technical measures before
such technical measures are widely adopted by sound recording copyright
owners; and
(ix) the transmitting entity identifies in textual data the sound
recording during, but not before, the time it is performed, including
the title of the sound recording, the title of the phonorecord embodying
such sound recording, if any, and the featured recording artist, in a
manner to permit it to be displayed to the transmission recipient by the
device or technology intended for receiving the service provided by the
transmitting entity, except that the obligation in this clause shall not
take effect until 1 year after the date of the enactment of the Digital
Millennium Copyright Act and shall not apply in the case of a
retransmission of a broadcast transmission by a transmitting entity that
does not have the right or ability to control the programming of the
broadcast transmission, or in the case in which devices or technology
intended for receiving the service provided by the transmitting entity
that have the capability to display such textual data are not common in
the marketplace.
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