A new amendment to the Copyright Act, designed to clarify and expand the scope of the exemption for certain performances of music in food service, drinking and retail establishments by means of radio and television transmissions, became effective on January 26, 1999.  (Public Law No. 105-298, which amends 17 U.S.C. 110(5).)  

The new law applies only to performances by means of radio-over-speakers or televisions, only if no direct charge is made to see or hear the performances, only if the performances are not further transmitted beyond the establishment where they are received, and only if the original transmission is licensed by the copyright owners -- that is, the radio or television station, cable system or satellite carrier is licensed by the copyright owners or their performing rights organizations.

The scope of the exemption in the old law had been unclear, and led to much litigation. The new law contains objective standards which will enable both music users and copyright owners to determine whether particular radio-over-speaker and television performances are exempt from copyright liability.   Two types of music users are exempt, under different standards: a food service or drinking establishment (defined as "a restaurant, inn, bar, tavern,  or any other similar place of business in which the public or patrons assemble for the primary purpose of being served food or drink, in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly") and an other establishment (defined as "a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly").

A food service or drinking establishment is eligible for the exemption if it (1) has less than 3750 gross square feet of space (in measuring the space, the amount of space used for customer parking only is always excludable); or (2) has 3750 gross square feet of space or more and (a) uses no more than 6 loudspeakers of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; and (b) if television sets are used, there are no more than 4 televisions, of which not more than 1 is located in any 1 room and none has a diagonal screen size greater than 55 inches. 

An other establishment  is eligible for the exemption if it (1) has less than 2000 gross square feet of space; or (2) has 2000 or more gross square feet of space and satisfies the same loudspeaker and television set requirements as for food service or drinking establishments.

The new law should greatly reduce disputes as to whether particular radio-over-speaker and television performances are entitled to the exemption.  And, of course, the law continues to require that public performances of copyrighted music by other means such as live music, records, cassette tapes, CD’s background music services, video tapes or laser discs require permission obtained either from the copyright owners or from their performing rights licensing organizations.

       American Society Of Composers, Authors & Publishers

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