PUBLIC LAW 104-39 —NOV. 1, 1995 109 STAT. 339 "(B) The limitation set forth in subparagraph (A) of this paragraph shall not apply if— "(i) the licensor has granted and there remain in effect licenses under section 106(6) for the public performance of sound recordings by means of digital audio transmission by at least 5 different interactive services: Provided, however, That each such license must be for a minimum of 10 percent of the copyrighted sound recordings owned by the licensor that have been licensed to interactive services, but in no event less than 50 sound recordings; or "(ii) the exclusive license is granted to perform publicly up to 45 seconds of a sound recording and the sole purpose of the performance is to promote the distribution or performance of that sound record- - ing. "(C) Notwithstanding the grant of an exclusive or nonexclusive license of the right of public performance under section 106(6), an interactive service may not publicly perform a sound recording unless a license has been granted for the public performance of any copyrighted musical work contained in the sound recording: Provided, That ^ich license to publicly perform the copyrighted musical work may be granted either by a performing rights society representing the copjndght owner or by the copyright owner. "(D) The performance of a sound recording by means of a retransmission of a digital audio transmission is not an infringement of section 106(6) if— "(i) the retransmission is of a transmission by an interactive service licensed to publicly perform the sound recording to a particular member of the public as part of that transmission; and "(ii) the retransmission is simultaneous with the licensed transmission, authorized by the transmitter, and limited to that particular member of the public intended by the interactive service to be the recipient of the transmission. "(E) For the purposes of this paragraph— "(i) a 'licensor* shall include the licensing entity and any other entity under any material degree of common ownership, management, or control that owns copyrights in sound recordings; and "(ii) a 'performing rights society' is an association or corporation that licenses the public performance of nondramatic musical works on behalf of the copy- right owner, such as the American Society of Composers, Authors and Publishers, Broadcast Music, Inc., and SESAC, Inc. "(4) RIGHTS NOT OTHERWISE LIMITED. — "(A) Except as expressly provided in this section, this section does not limit or impair the exclusive right to perform a sound recording publicly by means of a digital audio transmission under section 106(6). "(B) Nothing in this section annuls or limits in any way—
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