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Digital Performance Right in Sound Recordings and Ephemeral Recordings for a New Subscription Service

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Copyright Royalty Board, Library of Congress.


Notice announcing commencement of proceeding with request for Petitions to Participate.


The Copyright Royalty Judges are announcing the commencement of the proceeding to determine the rates and terms for the use of sound recordings in transmissions made by new subscription services and for the making of ephemeral recordings necessary for the facilitation of such transmissions for the period beginning on January 1, 2011, and ending on December 31, 2015. The Judges also are announcing the date by which a party who wishes to participate in the rate determination proceeding must file its Petition to Participate and the accompanying $150 filing fee.


Petitions to Participate and the filing fee are due on or before February 4, 2009.


An original, five copies, and an electronic copy in Portable Document Format (PDF) on a CD of the Petition to Participate, along with the $150 filing fee, may be delivered to the Copyright Royalty Board by either mail or hand delivery. Petitions to Participate and the $150 filing fee may not be delivered by an overnight delivery service other than the U.S. Postal Service Express Mail. If by mail (including overnight delivery), Petitions to Participate, along with the $150 filing fee, must be addressed to: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977. If hand delivered by a private party, Petitions to Participate, along with the $150 filing fee, must be brought to the Library of Congress, James Madison Memorial Building, LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000. If delivered by a commercial courier, Petitions to Participate, along with the $150 filing fee, must be delivered to the Congressional Courier Acceptance Site, located at 2nd and D Street, NE., Washington, DC. The envelope must be addressed to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM-403, 101 Independence Avenue, SE., Washington, DC 20559-6000.

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LaKeshia Brent, CRB Program Specialist, by telephone at (202) 707-7658 or e-mail at

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Section 114(f)(2)(C) of the Copyright Act, title 17 of the United States Code, allows a new type of eligible nonsubscription service or a new subscription service on which sound recordings are performed that is or is about to become operational to file a petition with the Copyright Royalty Judges (“Judges”) for the purpose of determining reasonable terms and rates of royalty payments for such new type of service. 17 U.S.C. 114(f)(2)(C). Upon receipt of such a petition, the Judges are required to commence a proceeding to determine said reasonable terms and rates. 17 U.S.C. 804(b)(3)(C)(ii). The Judges have conducted one proceeding pursuant to these provisions. See 70 FR 72471, 72472 (December 5, 2005) (after receipt of petition, commencing proceeding to determine rates and terms for a new type of subscription service that “performs sound recordings on digital audio channels programmed by Start Printed Page 320the licensee for transmission by a satellite television distribution service to its residential customers, where the audio channels are bundled with television channels as part of a `basic' package of service and not for a separate fee”). The parties to that proceeding ultimately reached an agreement on the rates and terms for the new subscription service at issue; and the Judges, after publishing the settlement for public comment, adopted the settlement as final regulations.[1] See 72 FR 72253 (December 20, 2007). The current rates expire on December 31, 2010.[2]

In order to have successor rates and terms in place prior to the expiration of the current rates, the Judges, by this notice, are commencing the rate determination proceeding for the license period 2011-2015 for the new subscription service defined in § 383.2(h). See 17 U.S.C. 804(b)(3)(C). Section 803(b)(1)(A)(i)(III) of the Copyright Act requires the Judges to publish a Federal Register notice by January 5, 2009, commencing this proceeding.

Petitions To Participate

Petitions to Participate must be filed in accordance with § 351.1(b) of the Judges' regulations. See 37 CFR 351.1(b). Petitions to Participate must be accompanied by the $150 filing fee. Cash will not be accepted; therefore, parties must pay the filing fee with a check or money order made payable to “Copyright Royalty Board.” If a check received in payment of the filing fee is returned for lack of sufficient funds, the corresponding Petition to Participate will be dismissed.

Note that in accordance with 37 CFR 350.2 (Representation), only attorneys who are members of the bar in one or more states and in good standing will be allowed to represent parties before the Copyright Royalty Judges, unless a party is an individual who represents herself or himself.

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Dated: December 23, 2008.

Stanley C. Wisniewski,

Copyright Royalty Judge.

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1.  The terms of the settlement are codified at 37 CFR Part 383. The new subscription service is defined in 37 CFR 383.2(h).

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2.  Section 114(f)(2)(C) states that the license period for services covered by this provision begins “with the inception of such new type of service and ending on the date on which the royalty rates and terms for preexisting subscription digital audio transmission services or preexisting satellite digital radio audio services * * * expire, or such other period as the parties may agree.” 17 U.S.C. 114(f)(2)(C). The current rates for these preexisting services expire on December 31, 2012. See 72 FR 71795 (December 19, 2007) (preexisting subscription services) and 73 FR 4080 (January 24, 2008) (preexisting satellite digital radio audio services). While the license period for the new subscription service defined in § 383.2(h) began with the inception of that service, the parties agreed to an expiration date different than that of the preexisting services, as allowed under this section.

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[FR Doc. E8-30974 Filed 1-2-09; 8:23 am]