H-0629

AN ACT Relating to the protection of recording rights; amending RCW 19.25.010, 19.25.020, 19.25.030, 19.25.040, 19.26.010, and 19.26.020; adding new sections to chapter 19.25 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 19.25.010 and 1974 ex.s. c 100 s 1 are each amended to read as follows:

As used in this chapter((,)):

(1) "Owner" means ((the owner of the master recording, master disc, master tape, master film, or other device used for reproducing recorded sound on a phonograph record, disc, tape, film, or other material on which sound is recorded and from which the transferred recorded sound is)) a person who owns the sounds fixed in a master phonograph record, master disc, master tape, master film, or other recording on which sound is or can be recorded and from which the transferred recorded sounds are directly or indirectly derived.

(2) "Fixed" means embodied in a recording or other tangible medium of expression, by or under the authority of the author, so that the matter embodied is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

(3) "Live performance" means a recitation, rendering, or playing of a series of images, musical, spoken or other sounds, or combination of images and sounds, in an audible sequence.

(4) "Recording" means a tangible medium on which sounds, images, or both are recorded or otherwise stored, including an original phonograph record, disc, tape, audio or video cassette, wire, film, or other medium now existing or developed later on which sounds, images, or both are or can be recorded or otherwise stored or a copy or reproduction that duplicates in whole or in part the original.

Sec. 2. RCW 19.25.020 and 1974 ex.s. c 100 s 2 are each amended to read as follows:

((~~A person commits a gross misdemeanor punishable by a fine not to exceed one thousand dollars and imprisonment not to exceed one year and confiscation of illegal stock, if he:~~

~~(1) Reproduces for sale any sound recording without the written consent of the owner of the master recording; or~~

~~(2) Knowingly sells or offers for sale or advertises for sale any sound recording that has been reproduced without the written consent of the owner of the master recording.~~)) (1) A person commits an offense if the person:

(a) Knowingly reproduces for sale or causes to be transferred any recording with intent to sell it or cause it to be sold or use it or cause it to be used for commercial advantage or private financial gain through public performance without the consent of the owner;

(b) Transports within this state, for commercial advantage or private financial gain, a recording with the knowledge that the sounds have been reproduced or transferred without the consent of the owner;

(c) Advertises, offers for sale, sells, or rents, or causes the sale, resale, or rental of or possesses for one or more of these purposes any recording that the person knows has been reproduced or transferred without the consent of the owner.

(2) An offense under this section is punishable by:

(a) A fine of not more than two hundred fifty thousand dollars, imprisonment for not more than five years, or both if:

(i) The offense involves at least one thousand unauthorized recordings during a one hundred eighty-day period; or

(ii) The defendant has been previously convicted under this section;

(b) A fine of not more than two hundred fifty thousand dollars, imprisonment for not more than two years, or both, if the offense involves more than one hundred but less than one thousand unauthorized recordings during a one hundred eighty-day period; or

(c) A fine of not more than twenty-five thousand dollars, imprisonment for not more than one year, or both, for any other offense.

(3) This section does not affect the rights and remedies of a party in private litigation.

(4) This section applies only to recordings that were initially fixed before February 15, 1972.

Sec. 3. RCW 19.25.030 and 1974 ex.s. c 100 s 3 are each amended to read as follows:

((~~This chapter shall not be applicable to the reproduction of any sound recording that is used or intended to be used only for broadcast by commercial or educational radio or television stations.~~)) (1) A person commits an offense if the person:

(a) For commercial advantage or private financial gain advertises, offers for sale, sells, rents, transports, causes the sale, resale, rental, or transportation of or possesses for one or more of these purposes a recording containing sounds of a live performance with the knowledge that the live performance has been recorded or fixed without the consent of the owner; or

(b) With the intent to sell for commercial advantage or private financial gain records or fixes or causes to be recorded or fixed on a recording a live performance with the knowledge that the live performance has been recorded or fixed without the consent of the owner.

(2) An offense under this section is punishable by:

(a) A fine of not more than two hundred fifty thousand dollars, imprisonment for not more than five years, or both, if:

(i) The offense involves at least one thousand unauthorized recordings embodying sound or at least sixty-five unauthorized audiovisual recordings during a one hundred eighty-day period; or

(ii) The defendant has been previously convicted under this section;

(c) A fine of not more than twenty-five thousand dollars, imprisonment for not more than one year, or both, for any other offense.

(3) In the absence of a written agreement or law to the contrary, the performer or performers of a live performance are presumed to own the rights to record or fix those sounds.

(4) For the purposes of this section, a person who is authorized to maintain custody and control over business records that reflect whether or not the owner of the live performance consented to having the live performance recorded or fixed is a proper witness in a proceeding regarding the issue of consent. A witness called pursuant to this section is subject to the rules of evidence relating to the competency of a witness to testify and the relevance and admissibility of the testimony offered.

(5) This section does not affect the rights and remedies of a party in private litigation.

Sec. 4. RCW 19.25.040 and 1974 ex.s. c 100 s 4 are each amended to read as follows:

((This chapter shall not be applicable to the reproduction of a sound recording defined as a public record of any court, legislative body, or proceedings of any public body, whether or not a fee is charged or collected therefor.)) This chapter shall not be applicable to the reproduction of any sound recording that is used or intended to be used only for broadcast by commercial or educational radio or television stations.

NEW SECTION. Sec. 5. A new section is added to chapter 19.25 RCW to read as follows:

This chapter shall not be applicable to the reproduction of a sound recording defined as a public record of any court, legislative body, or proceedings of any public body, whether or not a fee is charged or collected therefor.

NEW SECTION. Sec. 6. A new section is added to chapter 19.25 RCW to read as follows:

(1) Whenever any person is convicted of any violation of RCW 19.25.020 or 19.25.030 the court, in its judgment of conviction, shall, in addition to the penalty therein prescribed, order the forfeiture and destruction or other disposition of all articles, including, but not limited to, phonograph records, discs, wires, tapes, films, labels, or any other article upon which sounds or images can be recorded or stored, and any and all electronic, mechanical, or other devices for manufacturing, reproducing, or assembling these articles, which were used in connection with, or which were part of, any violation of RCW 19.25.020 or 19.25.030.

(2) It shall be the duty of the prosecutor to institute forfeiture proceedings for all recorded materials that do not conform to the provisions of this chapter and to deliver the nonconforming recordings to the judicial district in which the confiscation was made. The provisions of this section shall apply to any nonconforming recording, regardless of lack of knowledge or intent on the part of the retail seller, manufacturer, or distributor.

(3) All property seized pursuant to this section shall be deemed to be contraband and the court shall order the forfeiture and destruction or other disposition of any materials that do not conform to the provisions of this chapter.

Sec. 7. RCW 19.26.010 and 1971 ex.s. c 113 s 1 are each amended to read as follows:

((It shall be unlawful and a misdemeanor for any retailer in this state to sell or offer to sell any prerecorded sound or audio recording tape or any prerecorded video recording or tape unless such recording or tape bears the actual name and address of the recorder on its face or package: PROVIDED, That this chapter shall not be applicable to any said recording or tape that is intended to be used for broadcast by commercial or educational radio or television stations. Each and every sale of such recording or tape which does not bear the actual name and address of the recorder shall constitute a separate violation of this chapter.)) (1) A person is guilty of failure to disclose the origin of a recording when, for commercial advantage or private financial gain, he or she knowingly advertises or offers for sale or resale, or sells or resells, or rents, leases, or lends, or possesses for any of these purposes, any recording, which does not contain the true name and address of the manufacturer in a prominent place on the cover, jacket, or label of the recording.

(2) For purposes of this section:

(a) "Recording" means any tangible medium upon which information, sounds, or images are recorded or otherwise stored, including any phonograph record, disc, tape, audio or video cassette, wire, film, or other medium on which information, sounds, or images are recorded or otherwise stored;

(b) "Manufacturer" means the entity authorizing the duplication of the specific recording in question, but shall not include the manufacturer of the cartridge or casing itself.

(3) An offense under this section is punishable by:

(a) A fine of not more than two hundred fifty thousand dollars, imprisonment for not more than five years, or both, if:

(i) The offense involves at least sixty-five unauthorized recordings during a one hundred eighty-day period; or

(ii) The defendant has been previously convicted under this section;

(b) A fine of not more than two hundred fifty thousand dollars, imprisonment for not more than two years, or both, if the offense involves more than seven but less than sixty-five unauthorized recordings during a one hundred eighty-day period; or

(c) A fine of not more than twenty-five thousand dollars, imprisonment for not more than one year, or both for any other offense.

(4) This section does not affect the rights and remedies of a party in private litigation.

Sec. 8. RCW 19.26.020 and 1971 ex.s. c 113 s 2 are each amended to read as follows:

((~~Each and every violation of RCW 19.26.010 shall constitute a separate offense and be subject to a fine not to exceed one hundred dollars.~~)) This chapter shall not be applicable to any said recording or tape that is intended to be used for broadcast by commercial or educational radio or television stations.

NEW SECTION. Sec. 9. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.