Digital Performance Right in Sound Recordings and Ephemeral Recordings for a New Subscription Service, 72253-72256 [E7-24734]
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Federal Register / Vol. 72, No. 244 / Thursday, December 20, 2007 / Rules and Regulations
Protection of Children
We have analyzed this rule under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
does not create an environmental risk to
health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
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Energy Effects
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
under Executive Order 12866 and is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. The Administrator of the Office
of Information and Regulatory Affairs
has not designated it as a significant
energy action. Therefore, it does not
require a Statement of Energy Effects
under Executive Order 13211.
Technical Standards
The National Technology Transfer
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
Environment
We have analyzed this rule under
Commandant Instruction M16475.lD,
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which guides the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded that there are no factors
in this case that would limit the use of
a categorical exclusion under section
2.B.2 of the Instruction. Therefore, this
rule is categorically excluded, under
figure 2–1, paragraph (34)(g), of the
Instruction, from further environmental
documentation because it establishes a
safety zone. A final ‘‘Environmental
Analysis Check List’’ and a final
‘‘Categorical Exclusion Determination’’
will be available in the docket where
indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine Safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
I For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
I
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.
Chapter 701; 50 U.S.C. 191, 195; 33 CFR
1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L.
107–295, 116 Stat. 2064; Department of
Homeland Security Delegation No. 0170.1.
2. A temporary section 165.T13–043 is
added to read as follows:
I
§ 165.T13–043 Safety Zone: Lower Cowlitz
River Dredging Operation in the Captain of
the Port Portland Zone.
(a) Safety Zone. The following area is
designated a safety zone—
(1) Location. The waters encompassed
by the following points: 46° 05′50″N
122° 55′52″W southeastward to 46°
05′30″N 122° 55′11″W turning
northwest to 46° 05′44″N 122° 54′19″W
continuing along the southeasterly bank
of the Cowlitz River to 46° 06′34″N 122°
53′27″W crossing the river bank to bank
to 46° 06′33″N 122° 53′35″W following
the northerly bank of the Cowlitz River
back to the point of origin. This safety
zone will include the entrance to
Carrols Channel and the Old Mouth
Cowlitz.
(2) Effective time and date. 8 a.m. on
Monday, November 12, 2007 to 5 p.m.
on Friday, February 29, 2008.
(b) Regulations. (1) Entry into this
Safety Zone is prohibited unless
authorized by the Captain of the Port,
his designated representative, or the
Master of the on-scene dredge vessel.
(2) Transit through the Safety Zone is
prohibited without an escort from a
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vessel associated with the on-scene
dredge operations or a representative of
the Captain of the Port.
(3) To request an escort to transit the
Safety Zone contact the on-scene dredge
Master on VHF–FM channel 16 or 13 or
via search light or sound making device
30 minutes in advance of desired
transit.
Dated: November 9, 2007.
Russell C. Proctor,
CDR, U.S. Coast Guard, Acting Captain of
the Port, Portland, OR.
[FR Doc. E7–24768 Filed 12–19–07; 8:45 am]
BILLING CODE 4910–15–P
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 383
[Docket No. 2005–5 CRB DTNSRA]
Digital Performance Right in Sound
Recordings and Ephemeral
Recordings for a New Subscription
Service
Copyright Royalty Board,
Library of Congress.
ACTION: Final rule.
AGENCY:
SUMMARY: The Copyright Royalty Judges
are publishing final regulations that set
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
commencing from the inception of the
new subscription service through
December 31, 2010.
DATES: These regulations become
effective on January 22, 2008.
FOR FURTHER INFORMATION CONTACT:
Richard Strasser, Senior Attorney, or
Gina Giuffreda, Attorney Advisor, by
telephone at (202) 707–7658 or e-mail
crb@loc.gov.
SUPPLEMENTARY INFORMATION:
Background
In 1995, Congress enacted the Digital
Performance Right in Sound Recordings
Act of 1995 (‘‘DPRA’’), Public Law No.
104–39, which created an exclusive
right for copyright owners of sound
recordings subject to certain limitations,
to perform publicly the sound
recordings by means of certain digital
audio transmissions. Among the
limitations on the performance right
was the creation of a new compulsory
license for nonexempt noninteractive
digital subscription transmissions. 17
U.S.C. 114(f).
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Federal Register / Vol. 72, No. 244 / Thursday, December 20, 2007 / Rules and Regulations
Section 114 was later amended with
the passage of the Digital Millennium
Copyright Act of 1998 (‘‘DMCA’’ or ‘‘the
Act’’), Public Law No. 105–304, to cover
additional digital audio transmissions.
These include transmissions made by
‘‘new subscription services.’’ For
purposes of the section 114 license, a
‘‘new subscription service’’ is ‘‘a service
that performs sound recordings by
means of noninteractive subscription
digital audio transmissions and that is
not a preexisting subscription service or
a preexisting satellite digital audio radio
service.’’ 17 U.S.C. 114(j)(8).
In addition to expanding the section
114 license, the DMCA also created a
statutory license to allow for the making
of ephemeral reproductions for the
purpose of facilitating certain digital
audio transmissions, including those
made by new subscription services. 17
U.S.C. 112(e).
On October 31, 2005, pursuant to
section 114(f)(2)(C), XM Satellite Radio,
Inc. (‘‘XM’’) filed with the Copyright
Royalty Judges (‘‘Judges’’) a Petition to
Initiate and Schedule Proceeding for a
New Type of Subscription Service for a
‘‘new type of subscription service
[which] performs sound recordings on
digital audio channels programmed by
the 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.’’ XM Petition at 1. The petition
noted that this new subscription service
was to commence on or about November
15, 2005. Id.
On December 5, 2005, pursuant to 17
U.S.C. 804(b)(3)(C)(ii), the Judges
published a notice in the Federal
Register announcing commencement of
the proceeding to set rates and terms for
royalty payments under sections 114
and 112 for the activities of the new
subscription service described in the
XM Petition and requesting interested
parties to submit their Petitions to
Participate. 70 FR 72471. Petitions to
participate were received from Sirius
Satellite Radio, Inc. (‘‘Sirius’’), XM,
MTV Networks (‘‘MTV’’), and
SoundExchange, Inc.
The Judges set the schedule for the
proceeding for both the direct and
rebuttal phases of the proceeding,
including the dates for the filing of the
written statements and the dates for oral
testimony for each phase. Subsequent to
the presentation of the direct phase of
their case and the filing of their written
rebuttal statements, but prior to the oral
presentation of their rebuttal witnesses,
the parties informed the Judges that they
had ‘‘reached full agreement on all
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issues in this litigation’’ and that ‘‘there
are no more issues to try.’’ Transcript of
September 10, 2007, at p. 5. They also
stated that the settlement agreement
would be submitted to the Judges for
approval and adoption pursuant to 17
U.S.C. 801(b)(7)(A). Id. at 6. The
proposed rates and terms codifying the
settlement agreement were filed on
October 30, 2007.
Section 801(b)(7)(A) allows for the
adoption of rates and terms negotiated
by ‘‘some or all of the participants in a
proceeding at any time during the
proceeding’’ provided they are
submitted to the Copyright Royalty
Judges for approval. This section
provides that in such event:
List of Subjects in 37 CFR Part 383
Copyright, Digital audio
transmissions, Performance right, Sound
recordings.
(i) The Copyright Royalty Judges shall
provide to those that would be bound by the
terms, rates, or other determination set by
any agreement in a proceeding to determine
royalty rates an opportunity to comment on
the agreement and shall provide to
participants in the proceeding under section
803(b)(2) that would be bound by the terms,
rates, or other determination set by the
agreement an opportunity to comment on the
agreement and object to its adoption as a
basis for statutory terms and rates; and
(ii) The Copyright Royalty Judges may
decline to adopt the agreement as a basis for
statutory terms and rates for participants that
are not parties to the agreement, if any
participant described in clause (i) objects to
the agreement and the Copyright Royalty
Judges conclude, based on the record before
them if one exists, that the agreement does
not provide a reasonable basis for setting
statutory terms or rates.
Sec.
383.1 General.
383.2 Definitions.
383.3 Royalty fees for public performance
of sound recordings and the making of
ephemeral recordings.
383.4 Terms for making payment of royalty
fees.
17 U.S.C. 801(b)(7)(A). Accordingly, on
November 9, 2007, the Judges published
a Notice of Proposed Rulemaking
(‘‘NPRM’’) requesting comment on the
proposed rates and terms submitted to
the Judges. 72 FR 63532. Comments
were due by December 10, 2007. In
response to the NPRM, the Judges
received only one comment, which was
submitted by SoundExchange,
supporting the adoption of the proposed
regulations.
Having received no objections from a
party that would be bound by the
proposed rates and terms and that
would be willing to participate in
further proceedings, the Copyright
Royalty Judges, by this notice, are
adopting final regulations which set 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
commencing from the inception of the
new subscription service through
December 31, 2010.1
1 Section 383.4(a) states that the terms governing
the activities of a new subscription service under
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Final Regulations
For the reasons set forth in the
preamble, the Copyright Royalty Judges
are adding part 383 to Chapter III of title
37 of the Code of Federal Regulations to
read as follows:
I
PART 383—RATES AND TERMS FOR
SUBSCRIPTION TRANSMISSIONS AND
THE REPRODUCTION OF EPHEMERAL
RECORDINGS BY NEW
SUBSCRIPTION SERVICES
Authority: 17 U.S.C. 112(e), 114, and
801(b)(1).
§ 383.1
General.
(a) Scope. This part 383 establishes
rates and terms of royalty payments for
the public performance of sound
recordings in certain digital
transmissions by Licensees in
accordance with the provisions of 17
U.S.C. 114, and the making of certain
ephemeral recordings by Licensees in
accordance with the provisions of 17
U.S.C. 112(e), during the period
commencing from the inception of the
Licensees’ Services and continuing
through December 31, 2010.
(b) Legal compliance. Licensees
relying upon the statutory licenses set
forth in 17 U.S.C. 112 and 114 shall
comply with the requirements of those
sections and the rates and terms of this
part.
(c) Relationship to voluntary
agreements. Notwithstanding the
royalty rates and terms established in
this part, the rates and terms of any
license agreements entered into by
Copyright Owners and Licensees shall
apply in lieu of the rates and terms of
this part to transmissions with the scope
of such agreements.
§ 383.2
Definitions.
For purposes of this part, the
following definitions shall apply:
(a) Applicable Period is the period for
which a particular payment to the
sections 114 and 112 are the same as those, unless
otherwise specified, adopted to govern the activities
of the preexisting satellite digital audio radio
services in Docket No. 2006–1 CRB DSTRA. Those
terms will appear in Subpart B of 37 CFR part 382,
which will be published in a separate document.
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Federal Register / Vol. 72, No. 244 / Thursday, December 20, 2007 / Rules and Regulations
designated collection and distribution
organization is due.
(b) Bundled Contracts means
contracts between the Licensee and a
Provider in which the Service is not the
only content licensed by the Licensee to
the Provider.
(c) Copyright Owner is a sound
recording copyright owner who is
entitled to receive royalty payments
under 17 U.S.C. 112(e) or 114(g).
(d) License Period means the period
commencing from the inception of the
Licensees’ Services and continuing
through December 31, 2010.
(e) Licensee is a person that has
obtained statutory licenses under 17
U.S.C. 112 and 114, and the
implementing regulations, to make
digital audio transmissions as part of a
Service (as defined in paragraph (h) of
this section), and ephemeral recordings
for use in facilitating such
transmissions.
(f) Provider means a ‘‘multichannel
video programming distributor’’ as that
term is defined in 47 CFR 76.1000(e);
notwithstanding such definition, for
purposes of this part, a Provider shall
include only a distributor of
programming to televisions, such as a
cable or satellite television provider.
(g) Revenue. (1) ‘‘Revenue’’ means all
monies and other considerations, paid
or payable, recognizable during the
Applicable Period as revenue by the
Licensee consistent with Generally
Accepted Accounting Principles
(‘‘GAAP’’) and the Licensee’s past
practices, which is derived by the
Licensee from the operation of the
Service and shall be comprised of the
following:
(i) Revenues recognizable by Licensee
from Licensee’s Providers and directly
from residential U.S. subscribers for
Licensee’s Service;
(ii) Licensee’s advertising revenues
recognizable from the Service (as
billed), or other monies received from
sponsors of the Service if any, less
advertising agency commissions not to
exceed 15% of those fees incurred to a
recognized advertising agency not
owned or controlled by Licensee;
(iii) Revenues recognizable for the
provision of time on the Service to any
third party;
(iv) Revenues recognizable from the
sale of time to Providers of paid
programming, such as infomercials, on
the Service;
(v) Where merchandise, service, or
anything of value is receivable by
Licensee in lieu of cash consideration
for the use of Licensee’s Service, the fair
market value thereof or Licensee’s
prevailing published rate, whichever is
less;
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(vi) Monies or other consideration
recognizable as revenue by Licensee
from Licensee’s Providers, but not
including revenues recognizable by
Licensee’s Providers from others and
not accounted for by Licensee’s
Providers to Licensee, for the provision
of hardware for the Service by anyone
and used in connection with the
Service;
(vii) Monies or other consideration
recognizable as revenue for any
references to or inclusion of any product
or service on the Service; and
(viii) Bad debts recovered regarding
paragraphs (g)(1)(i) through (vii) of this
section.
(2) ‘‘Revenue’’ shall include such
payments as set forth in paragraphs
(g)(1)(i) through (viii) of this section to
which Licensee is entitled but which are
paid or payable to a parent, subsidiary,
division, or affiliate of Licensee, in lieu
of payment to Licensee but not
including payments to Licensee’s
Providers for the Service. Licensee shall
be allowed a deduction from ‘‘Revenue’’
as defined in paragraph (g)(1) of this
section for bad debts actually written off
during the reporting period.
(h) A Service is a non-interactive
(consistent with the definition of
‘‘interactive service’’ in 17 U.S.C.
114(j)(7)) audio-only subscription
service (including accompanying
information and graphics related to the
audio) that is transmitted to residential
subscribers of a television service
through a Provider which is marketed as
and is in fact primarily a video service
where
(1) Subscribers do not pay a separate
fee for audio channels.
(2) The audio channels are delivered
by digital audio transmissions through a
technology that is incapable of tracking
the individual sound recordings
received by any particular consumer.
(3) However, paragraph (h)(2) of this
section shall not apply to the Licensee’s
current contracts with Providers that are
in effect as of the effective date of this
part if such Providers become capable in
the future of tracking the individual
sound recordings received by any
particular consumer, provided that the
audio channels continued to be
delivered to Subscribers by digital audio
transmissions and the Licensee remains
incapable of tracking the individual
sound recordings received by any
particular consumer.
(i) Subscriber means every residential
subscriber to the underlying service of
the Provider who receives Licensee’s
Service in the United States for all or
any part of a month; provided, however,
that for any Licensee that is not able to
track the number of subscribers on a
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72255
per-day basis, ‘‘Subscribers’’ shall be
calculated based on the average of the
number of subscribers on the last day of
the preceding month and the last day of
the applicable month, unless the Service
is paid by the Provider based on end-ofmonth numbers, in which event
‘‘Subscribers’’ shall be counted based on
end-of-month data.
(j) Stand-Alone Contracts means
contracts between the Licensee and a
Provider in which the only content
licensed to the Provider is the Service.
§ 383.3 Royalty fees for public
performances of sound recordings and the
making of ephemeral recordings.
(a) Royalty rates. Royalty rates for the
public performance of sound recordings
by eligible digital transmissions made
over a Service pursuant to 17 U.S.C.
114, and for ephemeral recordings of
sound recordings made pursuant to 17
U.S.C. 112 to facilitate such
transmissions, are as follows. Each
Licensee will pay, with respect to
content covered by the License that is
provided via the Service of each such
Licensee:
(1) For Stand-Alone Contracts, the
greater of:
(i) 15% of Revenue, or
(ii) The following monthly minimum
payment per Subscriber to the Service of
such Licensee—
(A) From inception through 2006:
$0.0075
(B) 2007: $0.0075
(C) 2008: $0.0075
(D) 2009: $0.0125
(E) 2010: $0.0150 and
(2) For Bundled Contracts, the greater
of:
(i) 15% of Revenue allocated to reflect
the objective value of the Licensee’s
Service, or
(ii) The following monthly minimum
payment per Subscriber to the Service of
such Licensee:
(A) From inception through 2006:
$0.0220
(B) 2007: $0.0220
(C) 2008: $0.0220
(D) 2009: $0.0220
(E) 2010: $0.0250
(b) Minimum fee. Each Licensee will
pay an annual, non-refundable
minimum fee of one hundred thousand
dollars ($100,000), payable on January
31 of each calendar year in which the
Service is provided pursuant to the
section 112 and 114 statutory licenses,
but payable pursuant to the applicable
regulations for all years 2007 and
earlier. Such fee shall be recoupable and
credited against royalties due in the
calendar year in which it is paid.
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Federal Register / Vol. 72, No. 244 / Thursday, December 20, 2007 / Rules and Regulations
§ 383.4 Terms for making payment of
royalty fees.
ENVIRONMENTAL PROTECTION
AGENCY
(a) Subject to the provisions of this
section, terms governing timing and due
dates of royalty payments, late fees,
statements of account, audit and
verification of royalty payments and
distributions, cost of audit and
verification, record retention
requirements, treatment of Licensees’
confidential information, distribution of
royalties, unclaimed funds, designation
and definition of the collection and
distribution organization, and any
definitions for applicable terms not
defined herein and not otherwise
inapplicable shall be those adopted by
the Copyright Royalty Judges for
subscription transmissions and the
reproduction of ephemeral recordings
by preexisting satellite digital audio
radio services in Docket No. 2006–1
CRB DSTRA (‘‘the SDARS Proceeding’’).
(b) Without prejudice to any
applicable notice and recordkeeping
provisions, statements of account shall
not require reports of performances.
(c) If the Copyright Royalty Judges
adopt reports of use regulations in the
SDARS Proceeding, those regulations, if
any, shall govern Licensees’ obligations
to report sound recordings used
pursuant to this part, except that
Licensees also shall report to
SoundExchange which channels are
transmitted by their respective
Providers for all past, current and future
periods. In the event that the Copyright
Royalty Judges do not adopt reports of
use regulations in the SDARS
Proceeding, then reports of use provided
by XM Satellite Radio, Inc. (‘‘XM’’) and
Sirius Satellite Radio, Inc. (‘‘Sirius’’) for
their use of sound recordings on their
preexisting satellite digital audio radio
services (as defined in 17 U.S.C.
114(j)(10)) shall be deemed to satisfy
XM’s and Sirius’ obligations to report
sound recordings used pursuant to this
part, and MTV Networks shall provide
census reporting, retroactive to the
inception of its Service.
Dated: December 14, 2007.
James Scott Sledge,
Chief Copyright Royalty Judge.
[FR Doc. E7–24734 Filed 12–19–07; 8:45 am]
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40 CFR Parts 52 and 97
[EPA–R05–OAR–2007–0519; FRL–8508–1]
Approval of Implementation Plans of
Michigan: Clean Air Interstate Rule
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
SUMMARY: EPA is conditionally
approving a revision to the Michigan
State Implementation Plan (SIP)
submitted on July 16, 2007. This
revision incorporates provisions related
to the implementation of EPA’s Clean
Air Interstate Rule (CAIR), promulgated
on May 12, 2005, and subsequently
revised on April 28, 2006, and
December 13, 2006, and the CAIR
Federal Implementation Plan (CAIR FIP)
concerning sulfur dioxide (SO2),
nitrogen oxides (NOX) annual, and NOX
ozone season emissions for the state of
Michigan, promulgated on April 28,
2006, and subsequently revised
December 13, 2006. EPA is not making
any changes to the CAIR FIP, but is, to
the extent EPA approves Michigan’s SIP
revision, amending the appropriate
appendices in the CAIR FIP trading
rules simply to note that approval.
The SIP revision that EPA is
conditionally approving is an
abbreviated SIP revision that addresses:
The applicability provisions for the NOX
ozone season trading program under the
CAIR FIP and supporting definitions of
terms; the methodology to be used to
allocate NOX annual and ozone season
NOX allowances under the CAIR FIP
and supporting definitions of terms; and
provisions for opt-in units under the
CAIR FIP. Michigan will be submitting
additional SO2 rules in the future.
DATES: This rule is effective December
20, 2007.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2007–0519. All
documents in the electronic docket are
listed in the www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
i.e., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically in
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
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West Jackson Boulevard, Chicago,
Illinois 60604. This Facility is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. We recommend that you
telephone Douglas Aburano,
Environmental Engineer, at (312) 353–
6960, before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Douglas Aburano, Environmental
Engineer, Criteria Pollutant Section, Air
Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 353–6960,
aburano.douglas@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Action Is EPA Taking?
II. Did Anyone Comment on the Proposed
Conditional Approval?
III. What Are the General Requirements of
CAIR and the CAIR FIP?
IV. Analysis of Michigan’s CAIR SIP
Submittal
A. Nature of Michigan’s Submittal
B. Summary of Michigan’s Rule
C. State Budgets for Allowance Allocations
D. CAIR Cap-and-Trade Programs
E. Applicability Provisions for Non–EGU
NOX SIP Call Sources
F. NOX Allowance Allocations
G. Allocation of NOX Allowances from the
Compliance Supplement Pool
H. Individual Opt-in Units
I. Conditions for Approval
V. Final Action
VI. When Is This Action Effective?
VII. Statutory and Executive Order Reviews
I. What Action Is EPA Taking?
CAIR SIP Approval
EPA is conditionally approving a
revision to Michigan’s SIP, submitted on
July 16, 2007, that would modify the
application of certain provisions of the
CAIR FIP concerning NOX annual and
NOX ozone season emissions. (As
discussed below, this less
comprehensive CAIR SIP is termed an
abbreviated SIP.) EPA proposed to
conditionally approve Michigan’s
submittal on September 12, 2007 (72 FR
52038). The CAIR SO2 FIP will remain
in place unaffected. Michigan is subject
to the CAIR FIP that implements the
CAIR requirements by requiring certain
electric generating units (EGUs) to
participate in the EPA-administered
federal CAIR SO2, NOX annual, and
NOX ozone season cap-and-trade
programs. The SIP revision provides a
methodology for allocating NOX
allowances for the NOX annual and NOX
ozone season trading programs. The
CAIR FIP provides that this
methodology will be used to allocate
NOX allowances to sources in Michigan,
instead of the federal allocation
E:\FR\FM\20DER1.SGM
20DER1
]]>Agencies
[Federal Register Volume 72, Number 244 (Thursday, December 20, 2007)]
[Rules and Regulations]
[Pages 72253-72256]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24734]
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LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 383
[Docket No. 2005-5 CRB DTNSRA]
Digital Performance Right in Sound Recordings and Ephemeral
Recordings for a New Subscription Service
AGENCY: Copyright Royalty Board, Library of Congress.
ACTION: Final rule.
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SUMMARY: The Copyright Royalty Judges are publishing final regulations
that set 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 commencing from the inception of the new
subscription service through December 31, 2010.
DATES: These regulations become effective on January 22, 2008.
FOR FURTHER INFORMATION CONTACT: Richard Strasser, Senior Attorney, or
Gina Giuffreda, Attorney Advisor, by telephone at (202) 707-7658 or e-
mail crb@loc.gov.
SUPPLEMENTARY INFORMATION:
Background
In 1995, Congress enacted the Digital Performance Right in Sound
Recordings Act of 1995 (``DPRA''), Public Law No. 104-39, which created
an exclusive right for copyright owners of sound recordings subject to
certain limitations, to perform publicly the sound recordings by means
of certain digital audio transmissions. Among the limitations on the
performance right was the creation of a new compulsory license for
nonexempt noninteractive digital subscription transmissions. 17 U.S.C.
114(f).
[[Page 72254]]
Section 114 was later amended with the passage of the Digital
Millennium Copyright Act of 1998 (``DMCA'' or ``the Act''), Public Law
No. 105-304, to cover additional digital audio transmissions. These
include transmissions made by ``new subscription services.'' For
purposes of the section 114 license, a ``new subscription service'' is
``a service that performs sound recordings by means of noninteractive
subscription digital audio transmissions and that is not a preexisting
subscription service or a preexisting satellite digital audio radio
service.'' 17 U.S.C. 114(j)(8).
In addition to expanding the section 114 license, the DMCA also
created a statutory license to allow for the making of ephemeral
reproductions for the purpose of facilitating certain digital audio
transmissions, including those made by new subscription services. 17
U.S.C. 112(e).
On October 31, 2005, pursuant to section 114(f)(2)(C), XM Satellite
Radio, Inc. (``XM'') filed with the Copyright Royalty Judges
(``Judges'') a Petition to Initiate and Schedule Proceeding for a New
Type of Subscription Service for a ``new type of subscription service
[which] performs sound recordings on digital audio channels programmed
by the 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.'' XM Petition at 1. The petition
noted that this new subscription service was to commence on or about
November 15, 2005. Id.
On December 5, 2005, pursuant to 17 U.S.C. 804(b)(3)(C)(ii), the
Judges published a notice in the Federal Register announcing
commencement of the proceeding to set rates and terms for royalty
payments under sections 114 and 112 for the activities of the new
subscription service described in the XM Petition and requesting
interested parties to submit their Petitions to Participate. 70 FR
72471. Petitions to participate were received from Sirius Satellite
Radio, Inc. (``Sirius''), XM, MTV Networks (``MTV''), and
SoundExchange, Inc.
The Judges set the schedule for the proceeding for both the direct
and rebuttal phases of the proceeding, including the dates for the
filing of the written statements and the dates for oral testimony for
each phase. Subsequent to the presentation of the direct phase of their
case and the filing of their written rebuttal statements, but prior to
the oral presentation of their rebuttal witnesses, the parties informed
the Judges that they had ``reached full agreement on all issues in this
litigation'' and that ``there are no more issues to try.'' Transcript
of September 10, 2007, at p. 5. They also stated that the settlement
agreement would be submitted to the Judges for approval and adoption
pursuant to 17 U.S.C. 801(b)(7)(A). Id. at 6. The proposed rates and
terms codifying the settlement agreement were filed on October 30,
2007.
Section 801(b)(7)(A) allows for the adoption of rates and terms
negotiated by ``some or all of the participants in a proceeding at any
time during the proceeding'' provided they are submitted to the
Copyright Royalty Judges for approval. This section provides that in
such event:
(i) The Copyright Royalty Judges shall provide to those that
would be bound by the terms, rates, or other determination set by
any agreement in a proceeding to determine royalty rates an
opportunity to comment on the agreement and shall provide to
participants in the proceeding under section 803(b)(2) that would be
bound by the terms, rates, or other determination set by the
agreement an opportunity to comment on the agreement and object to
its adoption as a basis for statutory terms and rates; and
(ii) The Copyright Royalty Judges may decline to adopt the
agreement as a basis for statutory terms and rates for participants
that are not parties to the agreement, if any participant described
in clause (i) objects to the agreement and the Copyright Royalty
Judges conclude, based on the record before them if one exists, that
the agreement does not provide a reasonable basis for setting
statutory terms or rates.
17 U.S.C. 801(b)(7)(A). Accordingly, on November 9, 2007, the Judges
published a Notice of Proposed Rulemaking (``NPRM'') requesting comment
on the proposed rates and terms submitted to the Judges. 72 FR 63532.
Comments were due by December 10, 2007. In response to the NPRM, the
Judges received only one comment, which was submitted by SoundExchange,
supporting the adoption of the proposed regulations.
Having received no objections from a party that would be bound by
the proposed rates and terms and that would be willing to participate
in further proceedings, the Copyright Royalty Judges, by this notice,
are adopting final regulations which set 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 commencing from the
inception of the new subscription service through December 31, 2010.\1\
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\1\ Section 383.4(a) states that the terms governing the
activities of a new subscription service under sections 114 and 112
are the same as those, unless otherwise specified, adopted to govern
the activities of the preexisting satellite digital audio radio
services in Docket No. 2006-1 CRB DSTRA. Those terms will appear in
Subpart B of 37 CFR part 382, which will be published in a separate
document.
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List of Subjects in 37 CFR Part 383
Copyright, Digital audio transmissions, Performance right, Sound
recordings.
Final Regulations
0
For the reasons set forth in the preamble, the Copyright Royalty Judges
are adding part 383 to Chapter III of title 37 of the Code of Federal
Regulations to read as follows:
PART 383--RATES AND TERMS FOR SUBSCRIPTION TRANSMISSIONS AND THE
REPRODUCTION OF EPHEMERAL RECORDINGS BY NEW SUBSCRIPTION SERVICES
Sec.
383.1 General.
383.2 Definitions.
383.3 Royalty fees for public performance of sound recordings and
the making of ephemeral recordings.
383.4 Terms for making payment of royalty fees.
Authority: 17 U.S.C. 112(e), 114, and 801(b)(1).
Sec. 383.1 General.
(a) Scope. This part 383 establishes rates and terms of royalty
payments for the public performance of sound recordings in certain
digital transmissions by Licensees in accordance with the provisions of
17 U.S.C. 114, and the making of certain ephemeral recordings by
Licensees in accordance with the provisions of 17 U.S.C. 112(e), during
the period commencing from the inception of the Licensees' Services and
continuing through December 31, 2010.
(b) Legal compliance. Licensees relying upon the statutory licenses
set forth in 17 U.S.C. 112 and 114 shall comply with the requirements
of those sections and the rates and terms of this part.
(c) Relationship to voluntary agreements. Notwithstanding the
royalty rates and terms established in this part, the rates and terms
of any license agreements entered into by Copyright Owners and
Licensees shall apply in lieu of the rates and terms of this part to
transmissions with the scope of such agreements.
Sec. 383.2 Definitions.
For purposes of this part, the following definitions shall apply:
(a) Applicable Period is the period for which a particular payment
to the
[[Page 72255]]
designated collection and distribution organization is due.
(b) Bundled Contracts means contracts between the Licensee and a
Provider in which the Service is not the only content licensed by the
Licensee to the Provider.
(c) Copyright Owner is a sound recording copyright owner who is
entitled to receive royalty payments under 17 U.S.C. 112(e) or 114(g).
(d) License Period means the period commencing from the inception
of the Licensees' Services and continuing through December 31, 2010.
(e) Licensee is a person that has obtained statutory licenses under
17 U.S.C. 112 and 114, and the implementing regulations, to make
digital audio transmissions as part of a Service (as defined in
paragraph (h) of this section), and ephemeral recordings for use in
facilitating such transmissions.
(f) Provider means a ``multichannel video programming distributor''
as that term is defined in 47 CFR 76.1000(e); notwithstanding such
definition, for purposes of this part, a Provider shall include only a
distributor of programming to televisions, such as a cable or satellite
television provider.
(g) Revenue. (1) ``Revenue'' means all monies and other
considerations, paid or payable, recognizable during the Applicable
Period as revenue by the Licensee consistent with Generally Accepted
Accounting Principles (``GAAP'') and the Licensee's past practices,
which is derived by the Licensee from the operation of the Service and
shall be comprised of the following:
(i) Revenues recognizable by Licensee from Licensee's Providers and
directly from residential U.S. subscribers for Licensee's Service;
(ii) Licensee's advertising revenues recognizable from the Service
(as billed), or other monies received from sponsors of the Service if
any, less advertising agency commissions not to exceed 15% of those
fees incurred to a recognized advertising agency not owned or
controlled by Licensee;
(iii) Revenues recognizable for the provision of time on the
Service to any third party;
(iv) Revenues recognizable from the sale of time to Providers of
paid programming, such as infomercials, on the Service;
(v) Where merchandise, service, or anything of value is receivable
by Licensee in lieu of cash consideration for the use of Licensee's
Service, the fair market value thereof or Licensee's prevailing
published rate, whichever is less;
(vi) Monies or other consideration recognizable as revenue by
Licensee from Licensee's Providers, but not including revenues
recognizable by Licensee's Providers from others and not accounted for
by Licensee's Providers to Licensee, for the provision of hardware for
the Service by anyone and used in connection with the Service;
(vii) Monies or other consideration recognizable as revenue for any
references to or inclusion of any product or service on the Service;
and
(viii) Bad debts recovered regarding paragraphs (g)(1)(i) through
(vii) of this section.
(2) ``Revenue'' shall include such payments as set forth in
paragraphs (g)(1)(i) through (viii) of this section to which Licensee
is entitled but which are paid or payable to a parent, subsidiary,
division, or affiliate of Licensee, in lieu of payment to Licensee but
not including payments to Licensee's Providers for the Service.
Licensee shall be allowed a deduction from ``Revenue'' as defined in
paragraph (g)(1) of this section for bad debts actually written off
during the reporting period.
(h) A Service is a non-interactive (consistent with the definition
of ``interactive service'' in 17 U.S.C. 114(j)(7)) audio-only
subscription service (including accompanying information and graphics
related to the audio) that is transmitted to residential subscribers of
a television service through a Provider which is marketed as and is in
fact primarily a video service where
(1) Subscribers do not pay a separate fee for audio channels.
(2) The audio channels are delivered by digital audio transmissions
through a technology that is incapable of tracking the individual sound
recordings received by any particular consumer.
(3) However, paragraph (h)(2) of this section shall not apply to
the Licensee's current contracts with Providers that are in effect as
of the effective date of this part if such Providers become capable in
the future of tracking the individual sound recordings received by any
particular consumer, provided that the audio channels continued to be
delivered to Subscribers by digital audio transmissions and the
Licensee remains incapable of tracking the individual sound recordings
received by any particular consumer.
(i) Subscriber means every residential subscriber to the underlying
service of the Provider who receives Licensee's Service in the United
States for all or any part of a month; provided, however, that for any
Licensee that is not able to track the number of subscribers on a per-
day basis, ``Subscribers'' shall be calculated based on the average of
the number of subscribers on the last day of the preceding month and
the last day of the applicable month, unless the Service is paid by the
Provider based on end-of-month numbers, in which event ``Subscribers''
shall be counted based on end-of-month data.
(j) Stand-Alone Contracts means contracts between the Licensee and
a Provider in which the only content licensed to the Provider is the
Service.
Sec. 383.3 Royalty fees for public performances of sound recordings
and the making of ephemeral recordings.
(a) Royalty rates. Royalty rates for the public performance of
sound recordings by eligible digital transmissions made over a Service
pursuant to 17 U.S.C. 114, and for ephemeral recordings of sound
recordings made pursuant to 17 U.S.C. 112 to facilitate such
transmissions, are as follows. Each Licensee will pay, with respect to
content covered by the License that is provided via the Service of each
such Licensee:
(1) For Stand-Alone Contracts, the greater of:
(i) 15% of Revenue, or
(ii) The following monthly minimum payment per Subscriber to the
Service of such Licensee--
(A) From inception through 2006: $0.0075
(B) 2007: $0.0075
(C) 2008: $0.0075
(D) 2009: $0.0125
(E) 2010: $0.0150 and
(2) For Bundled Contracts, the greater of:
(i) 15% of Revenue allocated to reflect the objective value of the
Licensee's Service, or
(ii) The following monthly minimum payment per Subscriber to the
Service of such Licensee:
(A) From inception through 2006: $0.0220
(B) 2007: $0.0220
(C) 2008: $0.0220
(D) 2009: $0.0220
(E) 2010: $0.0250
(b) Minimum fee. Each Licensee will pay an annual, non-refundable
minimum fee of one hundred thousand dollars ($100,000), payable on
January 31 of each calendar year in which the Service is provided
pursuant to the section 112 and 114 statutory licenses, but payable
pursuant to the applicable regulations for all years 2007 and earlier.
Such fee shall be recoupable and credited against royalties due in the
calendar year in which it is paid.
[[Page 72256]]
Sec. 383.4 Terms for making payment of royalty fees.
(a) Subject to the provisions of this section, terms governing
timing and due dates of royalty payments, late fees, statements of
account, audit and verification of royalty payments and distributions,
cost of audit and verification, record retention requirements,
treatment of Licensees' confidential information, distribution of
royalties, unclaimed funds, designation and definition of the
collection and distribution organization, and any definitions for
applicable terms not defined herein and not otherwise inapplicable
shall be those adopted by the Copyright Royalty Judges for subscription
transmissions and the reproduction of ephemeral recordings by
preexisting satellite digital audio radio services in Docket No. 2006-1
CRB DSTRA (``the SDARS Proceeding'').
(b) Without prejudice to any applicable notice and recordkeeping
provisions, statements of account shall not require reports of
performances.
(c) If the Copyright Royalty Judges adopt reports of use
regulations in the SDARS Proceeding, those regulations, if any, shall
govern Licensees' obligations to report sound recordings used pursuant
to this part, except that Licensees also shall report to SoundExchange
which channels are transmitted by their respective Providers for all
past, current and future periods. In the event that the Copyright
Royalty Judges do not adopt reports of use regulations in the SDARS
Proceeding, then reports of use provided by XM Satellite Radio, Inc.
(``XM'') and Sirius Satellite Radio, Inc. (``Sirius'') for their use of
sound recordings on their preexisting satellite digital audio radio
services (as defined in 17 U.S.C. 114(j)(10)) shall be deemed to
satisfy XM's and Sirius' obligations to report sound recordings used
pursuant to this part, and MTV Networks shall provide census reporting,
retroactive to the inception of its Service.
Dated: December 14, 2007.
James Scott Sledge,
Chief Copyright Royalty Judge.
[FR Doc. E7-24734 Filed 12-19-07; 8:45 am]
BILLING CODE 1410-72-P
