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80C315(3) ATP

CHAPTER 641.

UNAUTHORIZED RECORDINGS

SUBCHAPTER A.

GENERAL PROVISIONS

Revised Law

641.001.

DEFINITIONS.

In this chapter:

"Fix" means to embody 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.

"Live performance" means a recitation, rendering, or playing of a series, in an audible sequence, of:

musical, spoken, or other sounds; or

a combination of images and sounds.

"Owner" means 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 recorded; and

from which the transferred recorded sounds are directly or indirectly derived.

"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 later developed; or

a copy or reproduction that wholly or partly duplicates the original.

(Bus. & Com. Code,

Sec. 35.91.)

Source Law

DEFINITIONS.

In this subchapter:

"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.

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

"Owner" means 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.

"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.

Revisor's Note

Section 35.91(3), Business & Commerce Code, defines "owner" in part as a person who "owns the sounds fixed in a

recording on which sound is or can be recorded" and

Section 35.91(4) defines "recording" in part as a tangible medium on which sounds, images, or both are 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."

The revised law omits the references to "can be" as unnecessary and misleading because it is clear from the context that the

definitions are referring to a medium on which sounds or images have already been stored.

[Sections 641.002-641.050 reserved for expansion]

SUBCHAPTER B.

PROHIBITED PRACTICES; PENALTIES

Revised Law

641.051.

UNAUTHORIZED DUPLICATION OF CERTAIN RECORDINGS.

This

section applies only to a recording that was initially fixed before February 15, 1972.

A person commits an offense if the person:

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

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

with the knowledge that a recording has been reproduced or transferred without the consent of the owner:

advertises, offers for sale, sells, or rents the recording;

causes the sale, resale, or rental of the recording; or

possesses the recording for a purpose described by Paragraph (

A) or (B).

An offense under this

section is punishable by:

imprisonment for a term of not more than five years, a fine not to exceed $250,000, or both, if:

the offense involves at least 1,000 unauthorized recordings during a 180-day period; or

the defendant has been previously convicted under this section;

imprisonment for a term of not more than two years, a fine not to exceed $250,000, or both, if the offense involves more than 100 but fewer than 1,000 unauthorized recordings during a 180-day period; or

confinement in the county jail for a term of not more than one year, a fine not to exceed $25,000, or both, if the offense is not otherwise punishable under Subdivision (1) or (2).

This

section does not apply to any fees due to the American Society of Composers, Authors and Publishers.

(Bus. & Com. Code, Secs. 35.92(a), (b), (d).)

Source Law

UNAUTHORIZED DUPLICATION.

A person commits an offense if the person:

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;

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;

advertises, offers for sale, sells, or rents, 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.

An offense under this

section is punishable by:

a fine of not more than $250,000, imprisonment for not more than five years, or both, if:

the offense involves at least 1,000 unauthorized recordings during a 180-day period; or

the defendant has been previously convicted under this section;

a fine of not more than $250,000, imprisonment for not more than two years, or both, if the offense involves more than 100 but less than 1,000 unauthorized recordings during a 180-day period; or

a fine of not more than $25,000, confinement in the county jail for not more than one year, or both, for any other offense.

This

section applies only to recordings that were initially fixed before February 15, 1972.

This

section does not apply to any fees due ASCAP.

Revisor's Note

Section 35.92(d), Business & Commerce Code, refers to "ASCAP."

"ASCAP" is an acronym for the "American Society of Composers, Authors and Publishers," and the revised law is drafted accordingly.

Revised Law

641.052.

UNAUTHORIZED RECORDING OF LIVE PERFORMANCE.

A person commits an offense if the person, with the knowledge that a live performance has been recorded or fixed without the consent of the owner:

for commercial advantage or private financial gain, advertises, offers for sale, sells, rents, or transports, causes the sale, resale, rental, or transportation of, or possesses for one or more of these purposes a recording containing sounds of the live performance; or

with the intent to sell for commercial advantage or private financial gain, records or fixes the live performance, or causes the live performance to be recorded or fixed on a recording.

An offense under this

section is punishable by:

imprisonment for a term of not more than five years, a fine not to exceed $250,000, or both, if:

the offense involves at least 1,000 unauthorized recordings embodying sound or at least 65 unauthorized audiovisual recordings during a 180-day period; or

the defendant has been previously convicted under this section;

imprisonment for a term of not more than two years, a fine not to exceed $250,000, or bo