Senate Bill S7910A

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7910--A
     Cal. No. 909
 
                             I N  S E N A T E
 
                               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:
 
   Section  1.  Section  31.04  of  the arts and cultural affairs law, as
 added by chapter 660 of the laws of 1995, is amended to read as follows:
   § 31.04. Copyrights. 1. As used in this section:
   (a) "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,  Pub.  L.
 94-553  (17  U.S.C.  § 101 et seq.). "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.
   (b)  "Performing  rights  society" means an association or corporation
 that licenses the public performance of  nondramatic  musical  works  on
 behalf  of  copyright owners, such as the American Society of Composers,
 Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and  SESAC,
 Inc.
   (c)  "Proprietor"  means  the owner of a retail establishment, restau-
 rant, inn, bar, tavern, SPORTS OR ENTERTAINMENT FACILITY, 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
 OR  SIMILAR  COPYRIGHTED WORKS may be performed, broadcast, or otherwise
 transmitted FOR THE ENJOYMENT OF MEMBERS OF THE PUBLIC THERE ASSEMBLED.
   (d) "Royalty" or "royalties" means the fees  payable  to  a  COPYRIGHT
 OWNER  OR performing rights society for THE public performance rights OF
 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

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   2. EACH PERFORMING RIGHTS SOCIETY SHALL MAKE AVAILABLE  AN  ELECTRONIC
 LINK  TO EACH FORM AGREEMENT PROVIDING FOR THE PAYMENT OF ROYALTIES MADE
 AVAILABLE FROM THE PERFORMING RIGHTS SOCIETY TO  ANY  PROPRIETOR  WITHIN
 THE STATE.
   3.  EACH PERFORMING RIGHTS SOCIETY SHALL MAKE AVAILABLE ELECTRONICALLY
 TO BUSINESS PROPRIETORS THE MOST CURRENT AVAILABLE LIST OF  MEMBERS  AND
 AFFILIATES  REPRESENTED  BY  THE  PERFORMING RIGHTS SOCIETY AND THE MOST
 CURRENT AVAILABLE LIST  OF  WORKS  THAT  THE  PERFORMING  RIGHT  SOCIETY
 LICENSES.
   4.  EACH PERFORMING RIGHTS SOCIETY SHALL MAKE AVAILABLE TO THE DEPART-
 MENT OF STATE FOR POSTING ON THE DEPARTMENT'S WEBSITE  ELECTRONIC  LINKS
 PROVIDING THE INFORMATION REQUIRED BY SUBDIVISIONS TWO AND THREE OF THIS
 SECTION.
   5.  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 seven-
 ty-two hours prior to the execution of that contract, it provides to the
 proprietor in writing, the following:
   (a) a schedule of the rates and terms of royalties under the contract;
   (b) [upon the request of the proprietor, the opportunity to review the
 most current available list of the members or affiliates represented  by
 the society;
   (c)  notice  that  it will make available, upon written request of any
 proprietor or  bona  fide  trade  associations  representing  groups  of
 proprietors,  at  the  sole expense of the proprietor or bona fide trade
 associations representing groups of proprietors by electronic  means  or
 otherwise, the most current available listing of the copyrighted musical
 works  in such performing rights society's repertory, provided that such
 notice shall specify the mean by which such information can be secured;
   (d)] NOTICE THAT THE PROPRIETOR HAS ELECTRONIC ACCESS TO THE  INFORMA-
 TION  MADE AVAILABLE BY THE PERFORMING RIGHTS SOCIETY PURSUANT TO SUBDI-
 VISIONS TWO AND THREE OF THIS SECTION, SUCH NOTICE SHALL INCLUDE HOW  TO
 ACCESS SUCH INFORMATION ELECTRONICALLY;
   (C)  notice  that  the performing rights society has a toll free tele-
 phone number which can be used  to  answer  inquiries  of  a  proprietor
 regarding specific musical works and the copyright owners represented by
 that performing rights society; and
   [(e)]  (D)  notice  that  it  complies  with federal law and orders of
 courts having appropriate jurisdiction regarding the rates and terms  of
 royalties  and  the  circumstances  under  which licenses for rights for
 public performances are offered to any proprietor.
   [3.] 6. Every contract between a performing rights society and propri-
 etor for the payment of the royalties executed,  issued  or  renewed  in
 this state on or after the effective date of this section shall:
   (a) be in writing;
   (b) be signed by the parties; and
   (c) include at least the following information:
   (1)  the  proprietor's  name  and  business  address  and the name and
 location of each place of business to which the contract applies;
   (2) the name and address of the performing rights society;
   (3) the duration of the contract; and
   (4) 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.
   [4.] 7. No performing rights society, or any agent or employee thereof
 shall:

 S. 7910--A                          3
 
   (a) with respect to contracts executed, issued or renewed on or  after
 the effective date of this section, collect or attempt to collect from a
 proprietor  licensed by that performing rights society a royalty payment
 except as provided in a contract executed pursuant to the provisions  of
 this section; OR
   (b) enter onto the premises of a proprietor's business for the purpose
 of  discussing  a contract for payment of royalties for the use of copy-
 righted works by that proprietor without first  identifying  himself  or
 herself  to  the  proprietor or his or her employees and disclosing that
 the agent is acting on behalf of  such  performing  rights  society  and
 disclosing the purpose of the discussion[; and
   (c)  fail  to  provide  written  notice  to a proprietor or his or her
 employees within seventy-two hours after entering the proprietor's busi-
 ness for the purpose of investigating the possible  performance,  broad-
 casting  or  transmission  of non-dramatic musical works, and disclosing
 that such agent or employee was investigating on behalf of such perform-
 ing rights society and disclosing:
   (1) the name of the performing rights society;
   (2) the date on which such agent or employee  conducted  the  investi-
 gation; and
   (3) the copyrighted works in such performing rights society's reperto-
 ry performed at the business during the investigation.
   5.].
   8. A REPRESENTATIVE OR AGENT OF A PERFORMING RIGHTS SOCIETY SHALL NOT:
   (A)  USE  OBSCENE, ABUSIVE OR PROFANE LANGUAGE WHEN COMMUNICATING WITH
 THE PROPRIETOR OR HIS OR HER EMPLOYEES;
   (B) COMMUNICATE BY TELEPHONE OR IN-PERSON WITH A PROPRIETOR OTHER THAN
 AT THE PROPRIETOR'S PLACE OF BUSINESS DURING THE HOURS WHEN THE PROPRIE-
 TOR'S BUSINESS IS OPEN TO THE PUBLIC. HOWEVER, SUCH  COMMUNICATIONS  MAY
 OCCUR  AT  A  LOCATION  OTHER THAN THE PROPRIETOR'S PLACE OF BUSINESS OR
 DURING HOURS WHEN THE PROPRIETOR'S BUSINESS IS NOT OPEN TO THE PUBLIC IF
 THE PROPRIETOR OR THE PROPRIETOR'S AGENTS, EMPLOYEES, OR REPRESENTATIVES
 SO AUTHORIZES;
   (C) ENGAGE IN ANY COERCIVE CONDUCT, ACT, OR PRACTICE THAT IS  SUBSTAN-
 TIALLY DISRUPTIVE TO A PROPRIETOR'S BUSINESS;
   (D)  USE  OR ATTEMPT TO USE ANY UNFAIR OR DECEPTIVE ACT OR PRACTICE IN
 NEGOTIATING WITH A PROPRIETOR; OR
   (E) COMMUNICATE WITH AN UNLICENSED PROPRIETOR ABOUT LICENSING PERFORM-
 ANCES OF MUSICAL WORKS AT THE PROPRIETOR'S ESTABLISHMENT AFTER RECEIVING
 NOTIFICATION IN WRITING FROM AN  ATTORNEY  REPRESENTING  THE  PROPRIETOR
 THAT ALL FURTHER COMMUNICATIONS RELATED TO THE LICENSING OF THE PROPRIE-
 TOR'S ESTABLISHMENT BY THE PERFORMING RIGHTS SOCIETY SHOULD BE ADDRESSED
 TO  THE  ATTORNEY.    HOWEVER,  THE PERFORMING RIGHTS SOCIETY MAY RESUME
 COMMUNICATING DIRECTLY WITH THE PROPRIETOR  IF  THE  ATTORNEY  FAILS  TO
 RESPOND  TO  COMMUNICATIONS  FROM  THE  PERFORMING RIGHTS SOCIETY WITHIN
 SIXTY DAYS, OR THE ATTORNEY BECOMES NONRESPONSIVE FOR  A  PERIOD  OF  AT
 LEAST SIXTY DAYS.
   9. THE DEPARTMENT OF STATE SHALL:
   (A)  INFORM PROPRIETORS OF THEIR RIGHTS AND RESPONSIBILITIES REGARDING
 THE PUBLIC PERFORMANCE OF COPYRIGHTED MUSIC AS PART OF THE  BUSINESS  OF
 LICENSING SERVICE; AND
   (B)   ENCOURAGE   PERFORMING  RIGHTS  SOCIETIES  TO  CONDUCT  OUTREACH
 CAMPAIGNS TO EDUCATE EXISTING PROPRIETORS ON THEIR RIGHTS AND  RESPONSI-
 BILITIES REGARDING THE PUBLIC PERFORMANCE OF COPYRIGHTED MUSIC.
   10.  ANYONE  WHO  WILLFULLY  VIOLATES  ANY  OF  THE PROVISIONS OF THIS
 SECTION MAY BE LIABLE FOR A CIVIL PENALTY OF NOT MORE THAN ONE  THOUSAND

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 DOLLARS  PER  VIOLATION.    MULTIPLE  VIOLATIONS  ON A SINGLE DAY MAY BE
 CONSIDERED SEPARATE VIOLATIONS. THE ATTORNEY GENERAL MAY  SEEK  RECOVERY
 OF  ALL SUCH PENALTIES IN A CIVIL ACTION. THE ATTORNEY GENERAL MAY ISSUE
 CIVIL  INVESTIGATIVE DEMANDS FOR THE INSPECTION OF DOCUMENTS, INTERROGA-
 TORY RESPONSES, AND ORAL TESTIMONY IN THE ENFORCEMENT OF THIS SECTION.
   11. Any person who suffers a violation of this section  may  bring  an
 action to recover actual damages and reasonable attorney's fees and seek
 an  injunction  or any other remedy available at law or in equity.  This
 section shall not apply to contracts between performing rights societies
 and broadcasters licensed by the federal communications commission or to
 contracts  with  cable  operators,  programmers  or  other  transmission
 services.  This section shall also not apply to investigations conducted
 by law enforcement agencies or other persons with respect to a suspected
 violation of article two hundred seventy-five of the penal law.
   12.  NOTHING  IN  THIS SECTION MAY BE CONSTRUED TO PROHIBIT PERFORMING
 RIGHTS SOCIETIES FROM CONDUCTING INVESTIGATIONS TO DETERMINE THE  EXIST-
 ENCE  OF  MUSIC USE BY A PROPRIETOR'S BUSINESS OR INFORMING A PROPRIETOR
 OF THE PROPRIETOR'S OBLIGATIONS UNDER THE COPYRIGHT LAWS OF  THE  UNITED
 STATES  PURSUANT  TO  TITLE 17 OF THE UNITED STATES CODE (17 U.S.C. SEC.
 101, ET SEQ.).
   § 2. This act shall take effect January 1, 2019.