Section 115. Scope of exclusive rights in nondramatic musical works:

Compulsory license for making and distributing phonorecords.

In the case of nondramatic musical works, the exclusive rights provided

by clauses (1) and (3) of section 106, to make and to distribute

phonorecords of such works, are subject to compulsory licensing under

the conditions specified by this section.

(a) Availability and Scope of Compulsory License.--

(1) When phonorecords of a nondramatic musical work have been

distributed to the public in the United States under the authority of

the copyright owner, any other person may, by complying with the

provisions of this section, obtain a compulsory license only if his or

her primary purpose in making phonorecords is to distribute them to the

public for private use. A person may obtain a compulsory license for

use of the work in the making of phonorecords duplicating a sound

recording fixed by another, unless: (i) such sound recording was fixed

lawfully; and (ii) the making of the phonorecords was authorized by the

owner of copyright in the sound recording or, if the sound recording

was fixed before February 15, 1972, by any person who fixed the sound

recording pursuant to an express license from the owner of the

copyright in the musical work or pursuant to a valid compulsory license

for use of such work in a sound recording.

(2) A compulsory license includes the privilege of making a musical

arrangement of the work to the extent necessary to conform it to the

style or manner of interpretation of the performance involved, but the

arrangement shall not change the basic melody or fundamental character

of the work, and shall not be subject to protection as a derivative

work under this title, except with the express consent of the copyright

owner.

(b) Notice of Intention to Obtain Compulsory License.--

(1) Any person who wishes to obtain a compulsory license under this

section shall, before or within thirty days after making and before

distributing any phonorecords of the work, serve notice of intention to

do so on the copyright owner. If the registration or other public

records of the Copyright Office do not identify the copyright owner and

include an address at which notice can be served, it shall be

sufficient to file the notice of intention in the Copyright Office.

The notice shall comply, in form, content, and manner of service, with

requirements that the Register of Copyrights shall prescribe by

regulation.

(2) Failure to serve or file the notice required by clause (1)

forecloses the possibility of a compulsory license and, in the absence

of a negotiated license, renders the making and distribution of

phonorecords actionable as acts of infringement under section 501 and

fully subject to the remedies provided by sections 502 through 506 and

509.

(c) Royalty Payable Under Compulsory Licence--

(1) To be entitled to receive royalties under a compulsory license, the

copyright owner must be identified in the registration or other public

records of the Copyright Office. The owner is entitled to royalties

for phonorecords made and distributed after being so identified, but is

not entitled to recover for any phonorecords previously made and

distributed.

(2) Except as provided by clause (1), the royalty under a compulsory

license shall be payable for every phonorecord made and distributed in

accordance with the license. For this purpose, a phonorecord is

considered "distributed" if the person exercising the compulsory

license has voluntarily and permanently parted with its possession.

With respect to each work embodied in the phonorecord, the royalty

shall be either two and three-fourths cents, or one-half of one cent

per minute of playing time or fraction thereof, which amount is larger.

(3) A compulsory license under this section includes the right of the

maker of a phonorecord of a nondramatic musical work under subsection

(a)(1) to distribute or authorize distribution of such phonorecord by

rental, lease, or lending (or by acts or practices in the nature of

rental, lease, or lending). In addition to any royalty payable under

clause (2) and chapter 8 of this title, a royalty shall be payable by

the compulsory licensee for every act of distribution of a phonorecord

by or in the nature of rental, lease, or lending, by or under the

authority of the compulsory licensee. With respect to each nondramatic

musical work embodied in the phonorecord, the royalty shall be a

proportion of the revenue received by the compulsory licensee from

every such act of distribution of the phonorecord under this clause

equal to the proportion of the revenue received by the compulsory

licensee from distribution of the phonorecord under clause (2) that is

payable by a compulsory licensee under that clause and under chapter 8.

The Register of Copyrights shall issue regulations to carry out the

purpose of this clause.

(4) Royalty payments shall be made on or before the twentieth day of

each month and shall include all royalties for the month next

preceding. Each monthly payment shall be made under oath and shall

comply with requirements that the Register of Copyrights shall

prescribe by regulation. The Register shall also prescribe regulations

under which detailed cumulative annual statements of account, certified

by a certified public accountant, shall be filed for every compulsory

license under this section. The regulations covering both the monthly

and the annual statements of account shall prescribe the form, content,

and manner of certification with respect to the number of records made

and the number of records distributed.

(5) If the copyright owner does not receive the monthly payment and the

monthly and annual statements of account when due, the owner may give

written notice to the licensee that, unless the default is remedied

within thirty days from the date of the notice, the compulsory license

will be automatically terminated. Such termination renders either the

making or the distribution, or both, of all phonorecords for which the

royalty has not been paid, actionable as acts of infringement under

section 501 and fully subject to the remedies provided by sections 502

through 506 and 509.

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