Bill Text: NY S07910 | 2017-2018 | General Assembly | Amended

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Bill Title: 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.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2018-06-20 - COMMITTED TO RULES [S07910 Detail]

Download: New_York-2017-S07910-Amended.html

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                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.