By Eiland H.B. No. 1530
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain business practices used in the collection of
1-3 copyright royalties, providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 2, Business and Commerce Code, is amended
1-6 by adding a new Chapter 20 to read as follows:
1-7 CHAPTER 20. COPYRIGHT ROYALTY COLLECTION PRACTICES.
1-8 SECTION 20.01. DEFINITIONS. As used in this chapter:
1-9 (a) "Area" means a geographical region having a 25-mile
1-10 radius surrounding the business location of a proprietor. In the
1-11 case of a proprietor with more than one business location, there
1-12 shall be a separate area for each location for the purposes of this
1-13 chapter.
1-14 (b) "Copyright owner" means the owner of a copyright of a
1-15 nondramatic musical or similar work recognized and enforceable
1-16 under the copyright laws of the United States pursuant to Title 17
1-17 of the United States Code, Pub. L. 94-553 (17 U.S.C. 101 et seq.).
1-18 (c) "Performing rights society" means an association or
1-19 corporation that licenses the public performance of nondramatic
1-20 musical works on behalf of copyright owners, such as the American
1-21 Society of Composers, Authors and Publishers (ASCAP), Broadcast
1-22 Music, Inc. (BMI), and SESAC, Inc.
1-23 (d) "Proprietor" means the owner of a retail establishment,
2-1 restaurant, inn, bar, tavern, or any other similar place of
2-2 business located in this State in which the public may assemble and
2-3 in which nondramatic musical works or similar copyrighted works may
2-4 be performed, broadcast, or otherwise transmitted.
2-5 (e) "Royalty" or "royalties" means the fees payable to a
2-6 copyright owner or performing rights society.
2-7 SECTION 20.02. LICENSING NEGOTIATIONS. No performing rights
2-8 society shall enter into, or offer to enter into, a contract for
2-9 the payment of royalties by a proprietor unless, at the time of the
2-10 offer, it provides to the proprietor, in writing, the following:
2-11 (a) a schedule of the rates and terms of royalties under the
2-12 contract;
2-13 (b) a schedule of the rates and terms of royalties under
2-14 agreements executed by the performing rights society and
2-15 proprietors of comparable businesses in the area;
2-16 (c) a list of the copyright owners represented by the
2-17 society and the works licensed under the contract;
2-18 (d) in the case of a performing right society which offers
2-19 discounts to proprietors in the area on any basis, the amounts and
2-20 terms of those discounts;
2-21 (e) an explanation of any exceptions to the copyright laws
2-22 of the United States, including what is commonly referred to as the
2-23 "home-style" exemption;
2-24 (f) notice of the provisions of this chapter and the
2-25 information contained in this section, and that the failure of the
3-1 performing rights society or its agents or employees to comply with
3-2 this chapter is a violation of the provisions of this chapter
3-3 subjecting the violator to civil liability and penalties.
3-4 SECTION 20.03. FORM OF CONTRACT. Every contract for the
3-5 payment of royalties executed in this State shall:
3-6 (a) be in writing;
3-7 (b) be signed by the parties;
3-8 (c) not exceed one year; and
3-9 (d) include at least the following information:
3-10 (1) the proprietor's name and business address and the
3-11 name and location of each place of business to which the contract
3-12 applies;
3-13 (2) if requested by the proprietor, the name and
3-14 address of the copyright owner(s) and any performing rights society
3-15 authorized by him to act on his behalf;
3-16 (3) if requested by the proprietor, the copyrighted
3-17 works licensed under the contract in a format convenient to the
3-18 proprietor;
3-19 (4) the duration of the contract;
3-20 (5) the schedule of rates and terms of the royalties
3-21 to be collected under the contract, including any sliding scale or
3-22 schedule for any increase or decrease of those rates for the
3-23 duration of that contract; and
3-24 (6) provide that all billings, invoices or other
3-25 requests for payment include an itemization showing the charge for
4-1 each licensed activity and the manner in which it is assessed.
4-2 SECTION 20.04. IMPROPER COLLECTION PRACTICES. No performing
4-3 rights society, or any agent or employee thereof shall:
4-4 (a) enter onto the premises of a proprietor's business
4-5 without first identifying himself to the proprietor or his
4-6 employees and making known to them the purpose of the visit;
4-7 (b) collect, or attempt to collect, a royalty payment or any
4-8 other fee except as provided in a contract executed pursuant to the
4-9 provisions of this chapter;
4-10 (c) use or attempt to use any harassing or intimidating act
4-11 or practice in negotiating with a proprietor for the payment of
4-12 royalties, including, but not limited to:
4-13 (1) using profane or obscene language or language that
4-14 is abusive to the proprietor;
4-15 (2) placing phone calls without disclosing the name of
4-16 the person making the call, who the person represents, and the
4-17 nature of the call prior to commencing any further conversation; or
4-18 (3) causing expense to any proprietor in the form of
4-19 long distance telephone tolls, telegram fees, or other charges
4-20 incurred by a medium of communication, without first disclosing the
4-21 name of the person making the call, who the person represents, and
4-22 the nature of the communication;
4-23 (d) divulge to any other person, except as may be required
4-24 by law, any information concerning a proprietor.
4-25 SECTION 30.05. PENALTY. A person who violates any provision
5-1 of this chapter may be assessed a civil penalty by the Attorney
5-2 General to be paid to the State of Texas not to exceed One Thousand
5-3 Dollars ($1,000) for each violation, together with the reasonable
5-4 costs of prosecuting the case.
5-5 SECTION 20.06. CAUSE OF ACTION. (a) A proprietor may bring
5-6 an action or assert a counterclaim, in a court of competent
5-7 jurisdiction, against a performing rights society, its' agent or
5-8 employee, to enjoin any violation of this chapter. A proprietor
5-9 may recover from a performing rights society any damages sustained
5-10 by the proprietor as a result of a violation of this chapter. The
5-11 proprietor may petition the court to terminate a contract which
5-12 violates the provisions of this chapter. A proprietor shall be
5-13 entitled to recover the greater of $1,000 or the damages sustained
5-14 by him, together with reasonable attorney's fees, filing fees and
5-15 reasonable costs of suit, in addition to any other legal or
5-16 equitable relief.
5-17 (b) The rights, remedies and prohibitions accorded by the
5-18 provisions of this chapter shall be in addition to and cumulative
5-19 of any other right remedy or prohibition accorded by common law,
5-20 federal law or the statutes of this State, and nothing contained
5-21 herein shall be construed to deny, abrogate or impair any common
5-22 law or statutory right, remedy or prohibition.
5-23 SECTION 20.07. APPLICATION. This chapter shall not apply to
5-24 contracts between performing rights societies and broadcasters
5-25 licensed by the Federal Communications Commission, except that if a
6-1 performing rights society is licensed by the Federal Communications
6-2 Commission, this chapter shall apply to contracts between that
6-3 performing rights society and a proprietor as otherwise provided
6-4 herein.
6-5 SECTION 2. SEVERABILITY. If any provision of this Act or
6-6 its application to any person or circumstance is held invalid, the
6-7 invalidity does not affect other provisions or applications of this
6-8 Act that can be given effect without the invalid provision or
6-9 application, and to this end the provisions of this Act are
6-10 declared to be severable.
6-11 SECTION 3. This Act takes effect September 1, 1995.
6-12 SECTION 4. The importance of this legislation and the
6-13 crowded condition of the calendars in both houses create an
6-14 emergency and an imperative public necessity that the
6-15 constitutional rule requiring bills to be read on three several
6-16 days in each house to be suspended, and this rule is hereby
6-17 suspended.