AN ACT

RELATING TO CRIMINAL OFFENSES; CHANGING THE THRESHOLD FOR VIOLATIONS OF THE UNAUTHORIZED RECORDING ACT RELATED TO UNAUTHORIZED SOUND AND AUDIOVISUAL RECORDINGS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. Section 30-16B-3 NMSA 1978 (being Laws 1991, Chapter 112, Section 3) is amended to read:

     "30-16B-3. UNAUTHORIZED RECORDING--PROHIBITED ACT--PENALTIES.--

          A. It is unlawful for any person to:

                (1) knowingly transfer for sale or cause 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 without the consent of the owner;

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

                (3) advertise or offer for sale, sell, rent or cause the sale, resale or rental of or possess for one or more of these purposes any recording that the person knows has been transferred without the consent of the owner.

          B. Any person violating the provisions of Subsection A of this section:

                (1) when the offense involves seven or more unauthorized recordings embodying sound or seven or more audiovisual recordings, at any one time, is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

                (2) when the offense involves fewer than seven unauthorized recordings embodying sound or fewer than seven audiovisual recordings, at any one time, is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

     Section 2. Section 30-16B-4 NMSA 1978 (being Laws 1991, Chapter 112, Section 4) is amended to read:

     "30-16B-4. REQUIRED LABELING--PENALTIES.--

          A. It is unlawful for any person for commercial advantage or private financial gain to advertise, offer for sale or resale, sell, resell, lease or possess for any of these purposes any recording that the person knows does not contain the true name of the manufacturer in a prominent place on the cover, jacket or label of the recording.

          B. Any person violating the provisions of Subsection A of this section:

                 (1) when the offense involves seven or more unauthorized recordings embodying sound or seven or more audiovisual recordings, at any one time, is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

                (2) when the offense involves fewer than seven unauthorized recordings embodying sound or fewer than seven audiovisual recordings, at any one time, is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."

     Section 3. Section 30-16B-5 NMSA 1978 (being Laws 1991, Chapter 112, Section 5) is amended to read:

     "30-16B-5. UNAUTHORIZED RECORDING OF LIVE PERFORMANCES--PENALTIES.--

          A. It is unlawful for any person for commercial advantage or private financial gain to advertise, offer for sale, sell, rent, transport, cause the sale, resale, rental or transportation of or possess for one or more of these purposes a recording of a live performance that has been recorded or fixed without the consent of the owner.

          B. Any person violating the provisions of Subsection A of this section:

                (1) when the offense involves seven or more unauthorized recordings embodying sound or seven or more audiovisual recordings, at any one time, is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978; and

                (2) when the offense involves fewer than seven unauthorized recordings embodying sound or fewer than seven audiovisual recordings, at any one time, is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978.

          C. In the absence of a written agreement or law to the contrary, the performer of a live performance is presumed to own the rights to record or fix those sounds.

          D. For the purposes of this section, a person who is authorized to maintain custody and control over business records that reflect whether the owner of the live performance consented to having the live performance recorded or fixed is a competent witness in a proceeding regarding the issue of consent."

     Section 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2005.

HB 250

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