Digital Performance Right in Sound Recordings and Ephemeral Recordings, 68214-68215 [E9-30572]

Agencies

• Copyright Royalty Board, Library of Congress
• Library of Congress
• Copyright Royalty Board

[Federal Register Volume 74, Number 245 (Wednesday, December 23, 2009)]
[Proposed Rules]
[Pages 68214-68215]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30572]


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LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 380

[Docket No. 2005-1 CRB DTRA]


Digital Performance Right in Sound Recordings and Ephemeral 
Recordings

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Notice of proposed rulemaking.

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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.

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.

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

[[Page 68215]]

Sections 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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    \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 Sec.  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 Sec.  380.3(b)(1), which sets forth 
the proposed minimum fee for Commercial Webcasters per the 
settlement between SoundExchange and DiMA and a new Sec.  
380.3(b)(2), which sets forth the minimum fee for Noncommercial 
Webcasters and retains the language in the current Sec.  380.3(b) 
except all references to Commercial Webcasters have been deleted.
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List of Subjects in 37 CFR Part 380

    Copyright, Sound recordings.

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:

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:

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

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


Sec.  380.3  Royalty fees for the public performance of sound 
recordings and for ephemeral recording.

* * * * *
    (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.

    Dated: December 18, 2009.
James Scott Sledge,
Chief U.S. Copyright Royalty Judge.
[FR Doc. E9-30572 Filed 12-22-09; 8:45 am]
BILLING CODE 1410-72-P