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Proposed Rule

Digital Performance Right in Sound Recordings and Ephemeral Recordings

Document Details

Information about this document as published in the Federal Register.

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AGENCY:

Copyright Royalty Board, Library of Congress.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Copyright Royalty Judges are publishing for comment proposed regulations governing the statutory minimum fees to be paid by Commercial Webcasters under two statutory licenses, permitting certain digital performances of sound recordings and the making of ephemeral recordings, for the period beginning January 1, 2006, and ending on December 31, 2010.

DATES:

Comments and objections, if any, are due by no later than January 22, 2010.

ADDRESSES:

Comments and objections may be sent electronically to crb@loc.gov. In the alternative, send an original, five copies and an electronic copy on a CD either by mail or hand delivery. Please do not use multiple means of transmission. Comments and objections may not be delivered by an overnight delivery service other than U.S. Postal Service Express Mail. If by mail (including overnight delivery), comments and objections must be addressed to: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977. If hand delivered by a private party, comments and objections must be brought to the Copyright Office Public Information Office, Library of Congress, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000, between 8:30 a.m. and 5 p.m. If delivered by a commercial courier, comments and objections must be delivered between 8:30 a.m. and 4 p.m. to the Congressional Courier Acceptance Site located at 2nd and D Street, NE., Washington, DC, and the envelope must be addressed as follows: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, Room LM-403, 101 Independence Avenue, SE., Washington, DC 20559-0600.

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FOR FURTHER INFORMATION CONTACT:

Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney Advisor, by telephone at (202) 707-7658 or by e-mail at crb@loc.gov.

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SUPPLEMENTARY INFORMATION:

Background

On May 1, 2007, the Copyright Royalty Judges published in the Federal Register their determination of royalty rates and terms under the statutory licenses under Sections 112(e) and 114 of the Copyright Act for the period 2006 through 2010 for a digital public performance of sound recordings by means of an eligible nonsubscription transmission or a transmission by a new subscription service. 72 FR 24084. In Intercollegiate Broadcast System, Inc. v. Copyright Royalty Board, 574 F.3d 748 (D.C. Cir. 2009), the United States Court of Appeals for the District of Columbia Circuit affirmed the Judges' determination in the main but remanded to the Judges the matter of setting the minimum fee to be paid by both Commercial Webcasters and Noncommercial Webcasters under Start Printed Page 68215Sections 112(e) and 114 of the Copyright Act. Id. at 762, 767. By order dated October 23, 2009, the Judges established a period commencing November 2, 2009, and concluding on December 2, 2009, for the parties to negotiate and submit a settlement of the minimum fee issue that was the subject of the remand. On December 2, 2009, SoundExchange, Inc. and the Digital Media Association (“DiMA”) submitted a settlement regarding the statutory minimum fee to be paid by Commercial Webcasters.[1] Having received such a settlement, the Judges now publish for comment the proposed change in the rule that is necessary to implement that settlement pursuant to order of remand from the United States Court of Appeals for the District of Columbia Circuit.

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List of Subjects in 37 CFR Part 380

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Proposed Regulations

For the reasons set forth in the preamble, the Copyright Royalty Judges propose to amend part 380 of title 37 of the Code of Federal Regulations as follows:

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PART 380—RATES AND TERMS FOR CERTAIN ELIGIBLE NONSUBSCRIPTION TRANSMISSIONS, NEW SUBSCRIPTION SERVICES AND THE MAKING OF EPHEMERAL REPRODUCTIONS

1. The authority citation for part 380 continues to read as follows:

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Authority: 17 U.S.C. 112(e), 114(f), 804(b)(3).

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2. Section 380.3 is amended by revising paragraph (b) to read as follows:

Royalty fees for the public performance of sound recordings and for ephemeral recording.
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(b) Minimum fee—(1) Commercial Webcasters. Each Commercial Webcaster will pay an annual, nonrefundable minimum fee of $500 for each calendar year or part of a calendar year of the period 2006-2010 during which it is a Licensee pursuant to 17 U.S.C. 112(e) or 114. This annual minimum fee is payable for each individual channel and each individual station maintained by Commercial Webcasters, and is also payable for each individual Side Channel maintained by Broadcasters who are Commercial Webcasters, provided that a Commercial Webcaster shall not be required to pay more than $50,000 per calendar year in minimum fees in the aggregate (for 100 or more channels or stations). The minimum fee payable under 17 U.S.C. 112 is deemed to be included within the minimum fee payable under 17 U.S.C. 114. Upon payment of the minimum fee, the Commercial Webcaster will receive a credit in the amount of the minimum fee against any royalty fees payable in the same calendar year.

(2) Noncommercial Webcasters. Each Noncommercial Webcaster will pay an annual, nonrefundable minimum fee of $500 for each calendar year or part of a calendar year of the license period during which they are Licensees pursuant to licenses under 17 U.S.C. 114. This annual minimum fee is payable for each individual channel and each individual station maintained by Noncommercial Webcasters and is also payable for each individual Side Channel maintained by Broadcasters who are Licensees. The minimum fee payable under 17 U.S.C. 112 is deemed to be included within the minimum fee payable under 17 U.S.C. 114. Upon payment of the minimum fee, the Licensee will receive a credit in the amount of the minimum fee against any additional royalty fees payable in the same calendar year.

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Dated: December 18, 2009.

James Scott Sledge,

Chief U.S. Copyright Royalty Judge.

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Footnotes

1.  Since the settlement does not include Noncommercial Webcasters, the Judges, on remand of the DC Circuit, will determine the minimum fee for Noncommercial Webcasters pursuant to the October 23, 2009, order. See Order Regarding Conduct and Scheduling of the Remand Proceeding, Docket No. 2005-1 CRB DTRA (October 23, 2009); see also Order Denying in Part and Granting in Part Joint Motion to Modify Scheduling Order, Docket No. 2005-1 CRB DTRA December 23, 2009. The Judges note that the proposed change is to § 380.3(b), which currently addresses the minimum fee for Commercial and Noncommercial Webcasters in a single paragraph. For sake of clarity, the Judges have proposed a new § 380.3(b)(1), which sets forth the proposed minimum fee for Commercial Webcasters per the settlement between SoundExchange and DiMA and a new § 380.3(b)(2), which sets forth the minimum fee for Noncommercial Webcasters and retains the language in the current § 380.3(b) except all references to Commercial Webcasters have been deleted.

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[FR Doc. E9-30572 Filed 12-22-09; 8:45 am]

BILLING CODE 1410-72-P