Notice and Recordkeeping for Use of Sound Recordings Under Statutory License, 15901-15904 [E9-7950]
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Federal Register / Vol. 74, No. 66 / Wednesday, April 8, 2009 / Proposed Rules
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.
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.
rwilkins on PROD1PC63 with PROPOSALS-1
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
Department of Homeland Security
Management Directive 0023.1 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded this action is one of a
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category of actions which do not
individually or cumulatively have a
significant effect on the human
environment. This rule is categorically
excluded, under figure 2–1, paragraph
(34)(g), of the Instruction. This rule
involves establishing a safety zone
around a fireworks display. The
fireworks will be launched from a land
area, however some fallout may enter
the water within a 210 foot radius of the
launching site. This zone is designed to
protect mariners from the hazards
associated with fireworks displays.
An environmental analysis checklist
and a categorical exclusion
determination are 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.
For the reasons discussed in the
preamble, the Coast Guard proposes to
amend 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:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.
Chapter 701, 3306, 3703; 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.
15901
(i) Stop the vessel immediately upon
being directed to do so by any
commissioned, warrant or petty officer
on shore or on board a vessel that is
displaying a U.S. Coast Guard Ensign.
(ii) Proceed as directed by any
commissioned, warrant or petty officer
on shore or on board a vessel that is
displaying a U.S. Coast Guard Ensign.
(3) The Captain of the Port, Hampton
Roads can be reached through the Sector
Duty Officer at Sector Hampton Roads
in Portsmouth, Virginia at telephone
Number (757) 668–5555.
(4) The Coast Guard Representatives
enforcing the safety zone can be
contacted on VHF–FM marine band
radio channel 13 (165.65 Mhz) and
channel 16 (156.8 Mhz).
(d) Enforcement Period: This
regulation will be in enforced on May
16, 2009 from 10 p.m. until 10:30 p.m.
Dated: March 25, 2009.
Patrick B. Trapp,
Captain, U.S. Coast Guard, Captain of the
Port, Hampton Roads.
[FR Doc. E9–7884 Filed 4–7–09; 8:45 am]
BILLING CODE 4910–15–P
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 370
[Docket No. RM 2008–7]
2. Add § 165.T05–0189 to read as
follows:
Notice and Recordkeeping for Use of
Sound Recordings Under Statutory
License
§ 165.T05–0189 Safety Zone; Norfolk Tides
Post-Game Fireworks Display, Elizabeth
River, Norfolk, VA.
AGENCY: Copyright Royalty Board,
Library of Congress.
ACTION: Notice of inquiry.
(a) Regulated Area. The following area
is a safety zone: Specified waters of the
Elizabeth River located within a 210
foot radius of the fireworks launching
site located at approximate position
36°50′30″ N/76°16′42″ W (NAD 1983),
directly behind Harbor Park Stadium in
the vicinity of Norfolk, VA.
(b) Definition: For the purposes of this
part, Captain of the Port Representative:
means any U.S. Coast Guard
commissioned, warrant or petty officer
who has been authorized by the Captain
of the Port, Hampton Roads, Virginia to
act on his behalf.
(c) Regulations: (1) In accordance with
the general regulations in 165.23 of this
part, entry into this zone is prohibited
unless authorized by the Captain of the
Port, Hampton Roads or his designated
representatives.
(2) The operator of any vessel in the
immediate vicinity of this safety zone
shall:
SUMMARY: The Copyright Royalty Judges
are seeking written comments from
interested parties to questions relating
to the costs of census versus sample
reporting to assist the Judges in the
revision of the interim regulations for
filing notices of use and the delivery of
records of use of sound recordings
under two statutory licenses of the
Copyright Act.
DATES: Comments are due no later than
May 26, 2009. Reply comments are due
no later than June 8, 2009.
ADDRESSES: Comments and reply
comments 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
reply comments may not be delivered
by an overnight delivery service other
than the U.S. Postal Service Express
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Mail. If by mail (including overnight
delivery), comments and reply
comments must be addressed to:
Copyright Royalty Board, P.O. Box
70977, Washington, DC 20024–0977. If
hand delivered by a private party,
comments and reply comments 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. If delivered by commercial
courier, comments and reply comments
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 to:
Copyright Royalty Board, Library of
Congress, James Madison Memorial
Building, LM–403, 101 Independence
Avenue, SE., Washington, DC 20559–
6000.
FOR FURTHER INFORMATION CONTACT:
Richard Strasser, Senior Attorney, or
Gina Giuffreda, Attorney Advisor, by
telephone at (202) 707–7658 or e-mail at
crb@loc.gov.
SUPPLEMENTARY INFORMATION:
Background
On December 30, 2008, the Copyright
Royalty Judges (‘‘Judges’’) published a
notice of proposed rulemaking
(‘‘NPRM’’) setting forth proposed
revisions to the interim regulations
adopted in October 2006 for filing
notice of use and the delivery of sound
recordings under sections 114 and 112
of the Copyright Act, title 17 of the
United States Code. 73 FR 79727.
Specifically, the Judges proposed
eliminating obsolete provisions of the
interim regulations and placing
definitions that were duplicated in
various sections of the interim
regulations into a new single definition
section applicable throughout Part 370
unless otherwise defined in a specific
section. Id. The more significant
revision proposed by the Judges was to
expand the reporting period to
implement year-round census reporting.
Consequently, the Judges proposed
eliminating for nonsubscription services
the aggregate tuning hours (‘‘ATH’’)
approach previously available and
requiring that such services now report
actual total performances. Conversely,
the Judges proposed allowing
preexisting satellite digital audio radio
services, new subscription services and
business establishment services to
achieve census reporting by using the
ATH option if technological
impediments existed which thwarted
the measurement of actual listenership.
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Finally, the Judges also solicited
comments on technological
developments which may warrant
additional revisions to rules governing
the method of reporting specific data
elements and/or the delivery
mechanism employed for reporting.
Discussion of Comments Received
In response to the NPRM, the Judges
received 43 comments from various
categories of interested parties: (1)
Representatives of copyright owners and
performers, including SoundExchange,
the Collective charged with collecting
and distributing royalties; (2) copyright
users and/or their representatives,
educational radio broadcasters, a
noncommercial religious broadcaster,
and an operator of radio and Internet
stations featuring Christian
programming; (3) an Internet service
that simulcasts the over-the-air and
Internet-only broadcasts of primarily
noncommercial terrestrial radio stations;
and (4) software providers of
recordkeeping solutions to radio
stations and webcasters.
SoundExchange and Frederick
Wilhelms III, who works for recording
artists and songwriters, support the
Judges’ proposal to require census
reporting. They contend that the current
sample reporting results in
underpayments or non-payments to
some copyright owners and performers.
Comments of SoundExchange at 4;
Comments of Wilhelms at 1. According
to SoundExchange, requiring all
services to provide census reporting
would eliminate this shortcoming and
allow SoundExchange to ‘‘distribute
funds on a fully accurate basis to all
copyright owners and performers.’’
Comments of SoundExchange at 3
(footnote omitted). SoundExchange
notes that ‘‘many services already
provide SoundExchange with yearround census reporting,’’ Id. at 5, and
estimates that ‘‘over 75% of the royalties
it receives from licensees are associated
with reports of use that are made using
year-round census reporting.’’ Id. at 6.
Commenters representing certain
educational and commercial radio
broadcasters opposed the proposed
census reporting requirement. The
educational radio broadcasters who
filed comments stated that they
currently do not pay more than the $500
minimum fee and do not exceed the
minimum ATH threshold. See, e.g.,
Comments of WONB Radio, Comments
of WESS Radio. See also Comments of
College Broadcasters Inc. These
commenters argued that compliance
with such requirements would be
unduly burdensome, if not impossible,
for them because they lack the finances,
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the staff, and the technology to do so.
Consequently, they conclude that
application of the proposed revisions
would force many of them to cease their
operations due to their inability to
comply with the revised regulations.
See Comments of WPTS, KWSC–FM,
and Blaze Radio. Moreover, some
commenters note that complying with
the proposed provision regarding census
reporting would be difficult because
many educational radio broadcasters do
not have automated playlists but rather
their playlists are created manually by
disc jockeys as they play the music. See,
e.g., Comments of WSOU–FM at 1–2.
Consequently, they urge the Judges to
exempt from more stringent reporting
requirements those educational radio
broadcasters currently paying only the
$500 minimum fee and not exceeding
the ATH threshold and allow them to
continue to report under the current
interim regulations.
The National Association of
Broadcasters’ (‘‘NAB’’) comment echoes
the educational radio broadcasters’
contention that the proposed move to
census reporting and the elimination of
the ATH option would place an undue
burden on broadcasters that is not
required by the statute. Comments of
NAB at 4. NAB argues that there has
been no showing that ‘‘the sampling
methodology currently utilized by
SoundExchange is inefficient, or results
in significant misallocation of royalty
payments.’’ Id. at 3.
With respect to the elimination of the
ATH option, NAB contends that this
option is ‘‘critical’’ for some
broadcasters. Id. NAB asserts that
payment of royalties on the basis of
actual performances is far different from
reporting performances of any given
recording on an actual performance
basis. NAB states that the latter requires
the matching of the identity of the song
with the number of listeners while the
former does not. According to NAB, to
accomplish the reporting proposed by
the Judges, broadcasters would have to
merge internal song identification and
automation software. NAB argues that
often these systems are incapable of
communicating with each other and are
not operated by the same entities. Id.
Two recordkeeping and reporting
vendors also opposed the proposed
census reporting requirement, citing
concerns about costs and the
technological difficulties in calculating
actual total performances accurately.
Comments of RadioActivity.Fm and
Tom Worster/Spinitron.
Request for Additional Information
The current proposal is intended to
fulfill the Judges’ obligations under the
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Copyright Act to establish requirements
by which copyright owners may receive
reasonable notice of the use of their
sound recordings and under which
records of use shall be kept and made
available by entities performing sound
recordings. See, e.g., 17 U.S.C.
114(f)(4)(A). The Judges have
determined preliminarily that such
reasonable notice of use requires the
type of census reporting that this
proposal mandates. However, the Judges
are mindful of the concerns expressed
by some commenters that any reporting
requirements that the Judges adopt
should not unduly burden the services
required to file reports of use. Therefore,
the Judges seek additional information
to gain a fuller understanding of the
likely costs and benefits that will be
derived if the proposed census reporting
provision is adopted and to consider
any alternatives to the proposal that
might accomplish the same goals as the
proposal in a less burdensome way,
particularly with respect to small
entities.
Consideration of Impact on Small
Entities
Some commenters have stated that the
proposed census reporting requirement
would adversely impact small entities.
The Judges are mindful of any impact
that the current proposal may have on
small entities. Therefore, the Judges
seek comment on the approximate
number of small entities that would be
impacted by the proposed rulemaking,
and in particular, by the proposed
census reporting requirement.
To help mitigate possible impact on
small entities, the Judges also seek
possible alternatives to the proposed
census provision. In considering the
proposed census reporting requirement,
the Judges considered, as possible
alternatives, maintaining the current
reporting requirement, which requires
services to provide the total number of
performances of each sound recording
during the relevant reporting period,
which is currently limited to two
periods of seven consecutive days for
each calendar quarter of the year.
Moreover, with respect to certain
services, the proposal includes an ATH
alternative to measuring performances
to the extent that technological
impediments hamper such a service’s
ability to measure actual listenership.
The Judges also considered exempting
from the proposed census reporting
requirements certain categories of
services that might lack the resources or
the technological sophistication to
comply with the proposed census
reporting requirement. Preliminarily,
the Judges believe that the alternatives
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discussed above could result in an
unfair allocation of royalty fees by
under-compensating certain copyright
owners who were not accurately
represented through the current sample
reporting and by over-compensating
copyright owners whose works are overrepresented in the sample period.
Nevertheless, the Judges seek comment
on the alternatives discussed above, as
well as others that the Judges should
consider and whether those alternatives
would be preferable to the current
proposal in terms of accurately
representing the actual listenership
information and any cost savings that
might be realized should the Judges
adopt an alternative rather than the
current proposed census reporting
provision.
In this regard, the Judges seek detailed
information from SoundExchange about
the way in which the proposed census
reporting requirement would enhance
its ability to more accurately and
efficiently distribute royalties to
copyright owners. In particular, the
Judges seek information from
SoundExchange that discusses the
current methodology SoundExchange
uses to allocate royalties as well as a
discussion about how that methodology
would change if the proposed census
provision is adopted. Currently,
SoundExchange is receiving some
reports based on ATH rather than on the
measurement of the actual total
performances of a sound recording
during the reporting period. How is
SoundExchange currently allocating
payments among the specific songs
performed in ATH-based reports? What
proportion of the total number of songs
performed in the first quarter of 2008
was reported on an ‘‘actual total
performance basis’’ as compared to an
ATH basis? What proportion of
revenues received for songs performed
in the first quarter of 2008 have been
distributed to date? For the same period,
what proportion of the revenues
distributed were revenues attributed to
song performance as measured by actual
total performance as compared to by
ATH? What metrics does
SoundExchange currently employ to
measure its effectiveness in receiving
and distributing performance revenues?
We seek estimates from
SoundExchange (and others) detailing
the cost savings or additional burdens,
if any, that copyright owners might
expect if the census reporting provision
were adopted. As discussed above,
SoundExchange has stated that ‘‘over
75% of the royalties it receives from
licensees are associated with reports of
use that are made using year-round
census reporting.’’ Comments of
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SoundExchange at 6. The Judges seek
additional information on how
SoundExchange derived this estimate.
For example, what percentage of
reporting entities currently uses yearround census reporting? What
percentage of songs for which
SoundExchange is the Collective are
reported based on year-round census
reporting? What is the nature of those
entities that do not currently use yearround census reporting? For example,
what percentage of entities that do not
use year-round reporting are small
entities? 1 What percentage are not-forprofit entities?
If the Judges were to exempt certain
classes of entities from the proposed
year-round reporting provision, what
would be appropriate criteria for such
an exemption? In providing your
comment, please consider which
entities would be least likely to have the
resources or technological
sophistication to comply with the
proposed census provision. For
example, would a revenue-based cut-off
be the most appropriate method for
developing an exemption? If so, what
would be an appropriate revenue level
to qualify for an exemption? In the
alternative, would it be more
appropriate to exempt from the
proposed census reporting provision
those entities that qualify for the
minimum $500 per channel or per
station performance royalty set forth in
37 CFR 380.3(a)(2)? If so, should the
exemption be limited to noncommercial
entities or should commercial entities
qualify for the exemption also? Are
there other criteria that would be
preferable in formulating an exemption
(e.g., number of employees, profit versus
not-for-profit organizational structure)?
Has SoundExchange considered
adding any additional open-source
licensed spreadsheet programs to the
Microsoft Excel and Corel Quattro Pro
spreadsheet programs it currently
supports to facilitate the submission of
Reports of Use? What are the potential
benefits and difficulties associated with
adding such programs? (Any costs cited
should be specific dollar amounts).
Which Services have examined the use
of such open source software? How
many would adopt it if it were available
as an option? What is the specific dollar
amount of any cost-savings envisioned
by Services specifically attributable to
the use of such open-source spreadsheet
software?
As discussed above, some
commenters state that complying with
1 Please consider an entity as small if it is
independently owned and operated and is not
dominant in its field of operation.
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Federal Register / Vol. 74, No. 66 / Wednesday, April 8, 2009 / Proposed Rules
the proposed provision regarding census
reporting would be difficult because
many educational radio broadcasters do
not have automated playlists but rather
their playlists are created manually by
disc jockeys as they play the music. See,
e.g., Comments of WSOU–FM at 1–2.
The Judges seek comment on the
percentage of broadcasters that do not
use automated playlists. Assuming
playlists are completely automated, is
the cost of preparing a Report of Use
likely to rise for a Service which moves
from the current 2-weeks per quarter
sampling period to full census? If so, by
how much will such costs rise? What
specifically accounts for any such
increase?
For those entities that do not use
automated playlists, what means do
they use for complying with current
reporting requirements? Is all
programming on college and other
educational stations done manually? Do
such stations currently have automated
playlist capabilities in place? In other
words, does manual programming occur
simply as a matter of creative choice?
Where a college radio station does not
currently have an automated playlist
capability, what is the cost of obtaining
such a capability? What technologies, if
any, are currently employed in
complying with the current
requirements? Which companies offer
them and at what cost? What changes,
if any, would be required to comply
with the proposed census reporting
requirement? What are the likely costs
that would be required to move from the
current reporting methodology to one
that would be required under the
proposal? Is technology currently
available that would permit entities that
do not use automated playlists to
comply with the proposed census
provision? If so, what companies
provide such capabilities and at what
cost? If such technology is not currently
available, what would be the costs of
developing it?
Dated: April 3, 2009.
James Scott Sledge,
Chief, U.S. Copyright Royalty Judge.
[FR Doc. E9–7950 Filed 4–7–09; 8:45 am]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 26
[Docket No. OST–2009]
RIN 2105–AD75
Disadvantaged Business Enterprise
Program; Potential Program
Improvements
AGENCY:
Office of the Secretary (OST),
DOT.
ACTION: Advance notice of proposed
rulemaking (ANPRM).
SUMMARY: This advance notice of
proposed rulemaking (ANPRM)
provides interested parties with the
opportunity to comment on five matters
of interest to participants in the
Department of Transportation’s
disadvantaged business enterprise (DBE)
program. The first concerns counting of
items obtained by a DBE subcontractor
from its prime contractor. The second
concerns ways of encouraging
‘‘unbundling’’ of contracts to facilitate
participation by small businesses,
including DBEs. The third is a request
for comments on potential
improvements to the DBE application
form, and the fourth asks for suggestions
related to program oversight. The fifth
concerns potential regulatory action to
facilitate certification for firms seeking
to work as DBEs in more than one state.
The sixth concerns additional
limitations on the discretion of prime
contractors to terminate DBEs for
convenience, once the prime contractor
had committed to using the DBE as part
of its showing of good faith efforts.
DATES: Comments on this proposed rule
must be received by July 7, 2009.
ADDRESSES: You may submit comments
(identified by the agency name and DOT
Docket ID Number OST–2009) by any of
the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov and follow
the online instructions for submitting
comments.
• Mail: Docket Management Facility:
U.S. Department of Transportation, 1200
New Jersey Avenue SE., West Building
Ground Floor, Room W12–140,
Washington, DC 20590–0001.
• Hand Delivery or Courier: West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue, SE., between
9 a.m. and 5 p.m. ET, Monday through
Friday, except Federal holidays.
• Fax: 202–493–2251.
Instructions: You must include the
agency name (Office of the Secretary,
DOT) and Docket number (OST–2009)
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for this notice at the beginning of your
comments. You should submit two
copies of your comments if you submit
them by mail or courier. Note that all
comments received will be posted
without change to https://
www.regulations.gov including any
personal information provided and will
be available to internet users. You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (65 FR
19477) or you may visit https://
DocketsInfo.dot.gov.
Docket: For internet access to the
docket to read background documents
and comments received, go to https://
www.regulations.gov. Background
documents and comments received may
also be viewed at the U.S. Department
of Transportation, 1200 New Jersey
Ave., SE., Docket Operations, M–30,
West Building Ground Floor, Room
W12–140, Washington, DC 20590–0001,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and
Enforcement, U.S. Department of
Transportation, 1200 New Jersey
Avenue, SE., Washington, DC 20590–
0001, Room W94–302, 202–366–9310,
bob.ashby@dot.gov.
SUPPLEMENTARY INFORMATION: The
Department is holding a series of
stakeholder meetings to bring together
prime contractors, DBEs, and state and
local government representatives to
discuss ways of improving
administration of the DBE program. As
a result of these discussions, the
Department has issued, and will
continue to consider, guidance
Questions and Answers to help
participants better understand and carry
out their responsibilities. Addressing
other issues raised in the discussions,
however, may require changes to the
DBE rules themselves (49 CFR Parts 23
and 26). This ANPRM concerns five
such issues: (1) Counting of DBE credit
for items obtained by DBE
subcontractors from other sources,
particularly the prime contractor for
whom they are working on a given
contract; (2) ways of encouraging
recipients to break up contracts into
smaller pieces that can more easily be
performed by small businesses like
DBEs, known as ‘‘unbundling;’’ (3)
potential ways of improving the DBE
application and personal net worth
(PNW) forms; (4) potential ways of
improving program oversight, and (5)
potential ways of reducing burdens on
firms seeking certification as DBEs in
more than one state.
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]]>Agencies
[Federal Register Volume 74, Number 66 (Wednesday, April 8, 2009)]
[Proposed Rules]
[Pages 15901-15904]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-7950]
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LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 370
[Docket No. RM 2008-7]
Notice and Recordkeeping for Use of Sound Recordings Under
Statutory License
AGENCY: Copyright Royalty Board, Library of Congress.
ACTION: Notice of inquiry.
-----------------------------------------------------------------------
SUMMARY: The Copyright Royalty Judges are seeking written comments from
interested parties to questions relating to the costs of census versus
sample reporting to assist the Judges in the revision of the interim
regulations for filing notices of use and the delivery of records of
use of sound recordings under two statutory licenses of the Copyright
Act.
DATES: Comments are due no later than May 26, 2009. Reply comments are
due no later than June 8, 2009.
ADDRESSES: Comments and reply comments 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 reply comments may not
be delivered by an overnight delivery service other than the U.S.
Postal Service Express
[[Page 15902]]
Mail. If by mail (including overnight delivery), comments and reply
comments must be addressed to: Copyright Royalty Board, P.O. Box 70977,
Washington, DC 20024-0977. If hand delivered by a private party,
comments and reply comments 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. If delivered by commercial courier, comments and reply
comments 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 to: Copyright
Royalty Board, Library of Congress, James Madison Memorial Building,
LM-403, 101 Independence Avenue, SE., Washington, DC 20559-6000.
FOR FURTHER INFORMATION CONTACT: Richard Strasser, Senior Attorney, or
Gina Giuffreda, Attorney Advisor, by telephone at (202) 707-7658 or e-
mail at crb@loc.gov.
SUPPLEMENTARY INFORMATION:
Background
On December 30, 2008, the Copyright Royalty Judges (``Judges'')
published a notice of proposed rulemaking (``NPRM'') setting forth
proposed revisions to the interim regulations adopted in October 2006
for filing notice of use and the delivery of sound recordings under
sections 114 and 112 of the Copyright Act, title 17 of the United
States Code. 73 FR 79727. Specifically, the Judges proposed eliminating
obsolete provisions of the interim regulations and placing definitions
that were duplicated in various sections of the interim regulations
into a new single definition section applicable throughout Part 370
unless otherwise defined in a specific section. Id. The more
significant revision proposed by the Judges was to expand the reporting
period to implement year-round census reporting. Consequently, the
Judges proposed eliminating for nonsubscription services the aggregate
tuning hours (``ATH'') approach previously available and requiring that
such services now report actual total performances. Conversely, the
Judges proposed allowing preexisting satellite digital audio radio
services, new subscription services and business establishment services
to achieve census reporting by using the ATH option if technological
impediments existed which thwarted the measurement of actual
listenership. Finally, the Judges also solicited comments on
technological developments which may warrant additional revisions to
rules governing the method of reporting specific data elements and/or
the delivery mechanism employed for reporting.
Discussion of Comments Received
In response to the NPRM, the Judges received 43 comments from
various categories of interested parties: (1) Representatives of
copyright owners and performers, including SoundExchange, the
Collective charged with collecting and distributing royalties; (2)
copyright users and/or their representatives, educational radio
broadcasters, a noncommercial religious broadcaster, and an operator of
radio and Internet stations featuring Christian programming; (3) an
Internet service that simulcasts the over-the-air and Internet-only
broadcasts of primarily noncommercial terrestrial radio stations; and
(4) software providers of recordkeeping solutions to radio stations and
webcasters.
SoundExchange and Frederick Wilhelms III, who works for recording
artists and songwriters, support the Judges' proposal to require census
reporting. They contend that the current sample reporting results in
underpayments or non-payments to some copyright owners and performers.
Comments of SoundExchange at 4; Comments of Wilhelms at 1. According to
SoundExchange, requiring all services to provide census reporting would
eliminate this shortcoming and allow SoundExchange to ``distribute
funds on a fully accurate basis to all copyright owners and
performers.'' Comments of SoundExchange at 3 (footnote omitted).
SoundExchange notes that ``many services already provide SoundExchange
with year-round census reporting,'' Id. at 5, and estimates that ``over
75% of the royalties it receives from licensees are associated with
reports of use that are made using year-round census reporting.'' Id.
at 6.
Commenters representing certain educational and commercial radio
broadcasters opposed the proposed census reporting requirement. The
educational radio broadcasters who filed comments stated that they
currently do not pay more than the $500 minimum fee and do not exceed
the minimum ATH threshold. See, e.g., Comments of WONB Radio, Comments
of WESS Radio. See also Comments of College Broadcasters Inc. These
commenters argued that compliance with such requirements would be
unduly burdensome, if not impossible, for them because they lack the
finances, the staff, and the technology to do so. Consequently, they
conclude that application of the proposed revisions would force many of
them to cease their operations due to their inability to comply with
the revised regulations. See Comments of WPTS, KWSC-FM, and Blaze
Radio. Moreover, some commenters note that complying with the proposed
provision regarding census reporting would be difficult because many
educational radio broadcasters do not have automated playlists but
rather their playlists are created manually by disc jockeys as they
play the music. See, e.g., Comments of WSOU-FM at 1-2. Consequently,
they urge the Judges to exempt from more stringent reporting
requirements those educational radio broadcasters currently paying only
the $500 minimum fee and not exceeding the ATH threshold and allow them
to continue to report under the current interim regulations.
The National Association of Broadcasters' (``NAB'') comment echoes
the educational radio broadcasters' contention that the proposed move
to census reporting and the elimination of the ATH option would place
an undue burden on broadcasters that is not required by the statute.
Comments of NAB at 4. NAB argues that there has been no showing that
``the sampling methodology currently utilized by SoundExchange is
inefficient, or results in significant misallocation of royalty
payments.'' Id. at 3.
With respect to the elimination of the ATH option, NAB contends
that this option is ``critical'' for some broadcasters. Id. NAB asserts
that payment of royalties on the basis of actual performances is far
different from reporting performances of any given recording on an
actual performance basis. NAB states that the latter requires the
matching of the identity of the song with the number of listeners while
the former does not. According to NAB, to accomplish the reporting
proposed by the Judges, broadcasters would have to merge internal song
identification and automation software. NAB argues that often these
systems are incapable of communicating with each other and are not
operated by the same entities. Id.
Two recordkeeping and reporting vendors also opposed the proposed
census reporting requirement, citing concerns about costs and the
technological difficulties in calculating actual total performances
accurately. Comments of RadioActivity.Fm and Tom Worster/Spinitron.
Request for Additional Information
The current proposal is intended to fulfill the Judges' obligations
under the
[[Page 15903]]
Copyright Act to establish requirements by which copyright owners may
receive reasonable notice of the use of their sound recordings and
under which records of use shall be kept and made available by entities
performing sound recordings. See, e.g., 17 U.S.C. 114(f)(4)(A). The
Judges have determined preliminarily that such reasonable notice of use
requires the type of census reporting that this proposal mandates.
However, the Judges are mindful of the concerns expressed by some
commenters that any reporting requirements that the Judges adopt should
not unduly burden the services required to file reports of use.
Therefore, the Judges seek additional information to gain a fuller
understanding of the likely costs and benefits that will be derived if
the proposed census reporting provision is adopted and to consider any
alternatives to the proposal that might accomplish the same goals as
the proposal in a less burdensome way, particularly with respect to
small entities.
Consideration of Impact on Small Entities
Some commenters have stated that the proposed census reporting
requirement would adversely impact small entities. The Judges are
mindful of any impact that the current proposal may have on small
entities. Therefore, the Judges seek comment on the approximate number
of small entities that would be impacted by the proposed rulemaking,
and in particular, by the proposed census reporting requirement.
To help mitigate possible impact on small entities, the Judges also
seek possible alternatives to the proposed census provision. In
considering the proposed census reporting requirement, the Judges
considered, as possible alternatives, maintaining the current reporting
requirement, which requires services to provide the total number of
performances of each sound recording during the relevant reporting
period, which is currently limited to two periods of seven consecutive
days for each calendar quarter of the year. Moreover, with respect to
certain services, the proposal includes an ATH alternative to measuring
performances to the extent that technological impediments hamper such a
service's ability to measure actual listenership. The Judges also
considered exempting from the proposed census reporting requirements
certain categories of services that might lack the resources or the
technological sophistication to comply with the proposed census
reporting requirement. Preliminarily, the Judges believe that the
alternatives discussed above could result in an unfair allocation of
royalty fees by under-compensating certain copyright owners who were
not accurately represented through the current sample reporting and by
over-compensating copyright owners whose works are over-represented in
the sample period. Nevertheless, the Judges seek comment on the
alternatives discussed above, as well as others that the Judges should
consider and whether those alternatives would be preferable to the
current proposal in terms of accurately representing the actual
listenership information and any cost savings that might be realized
should the Judges adopt an alternative rather than the current proposed
census reporting provision.
In this regard, the Judges seek detailed information from
SoundExchange about the way in which the proposed census reporting
requirement would enhance its ability to more accurately and
efficiently distribute royalties to copyright owners. In particular,
the Judges seek information from SoundExchange that discusses the
current methodology SoundExchange uses to allocate royalties as well as
a discussion about how that methodology would change if the proposed
census provision is adopted. Currently, SoundExchange is receiving some
reports based on ATH rather than on the measurement of the actual total
performances of a sound recording during the reporting period. How is
SoundExchange currently allocating payments among the specific songs
performed in ATH-based reports? What proportion of the total number of
songs performed in the first quarter of 2008 was reported on an
``actual total performance basis'' as compared to an ATH basis? What
proportion of revenues received for songs performed in the first
quarter of 2008 have been distributed to date? For the same period,
what proportion of the revenues distributed were revenues attributed to
song performance as measured by actual total performance as compared to
by ATH? What metrics does SoundExchange currently employ to measure its
effectiveness in receiving and distributing performance revenues?
We seek estimates from SoundExchange (and others) detailing the
cost savings or additional burdens, if any, that copyright owners might
expect if the census reporting provision were adopted. As discussed
above, SoundExchange has stated that ``over 75% of the royalties it
receives from licensees are associated with reports of use that are
made using year-round census reporting.'' Comments of SoundExchange at
6. The Judges seek additional information on how SoundExchange derived
this estimate. For example, what percentage of reporting entities
currently uses year-round census reporting? What percentage of songs
for which SoundExchange is the Collective are reported based on year-
round census reporting? What is the nature of those entities that do
not currently use year-round census reporting? For example, what
percentage of entities that do not use year-round reporting are small
entities? \1\ What percentage are not-for-profit entities?
If the Judges were to exempt certain classes of entities from the
proposed year-round reporting provision, what would be appropriate
criteria for such an exemption? In providing your comment, please
consider which entities would be least likely to have the resources or
technological sophistication to comply with the proposed census
provision. For example, would a revenue-based cut-off be the most
appropriate method for developing an exemption? If so, what would be an
appropriate revenue level to qualify for an exemption? In the
alternative, would it be more appropriate to exempt from the proposed
census reporting provision those entities that qualify for the minimum
$500 per channel or per station performance royalty set forth in 37 CFR
380.3(a)(2)? If so, should the exemption be limited to noncommercial
entities or should commercial entities qualify for the exemption also?
Are there other criteria that would be preferable in formulating an
exemption (e.g., number of employees, profit versus not-for-profit
organizational structure)?
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\1\ Please consider an entity as small if it is independently
owned and operated and is not dominant in its field of operation.
---------------------------------------------------------------------------
Has SoundExchange considered adding any additional open-source
licensed spreadsheet programs to the Microsoft Excel and Corel Quattro
Pro spreadsheet programs it currently supports to facilitate the
submission of Reports of Use? What are the potential benefits and
difficulties associated with adding such programs? (Any costs cited
should be specific dollar amounts). Which Services have examined the
use of such open source software? How many would adopt it if it were
available as an option? What is the specific dollar amount of any cost-
savings envisioned by Services specifically attributable to the use of
such open-source spreadsheet software?
As discussed above, some commenters state that complying with
[[Page 15904]]
the proposed provision regarding census reporting would be difficult
because many educational radio broadcasters do not have automated
playlists but rather their playlists are created manually by disc
jockeys as they play the music. See, e.g., Comments of WSOU-FM at 1-2.
The Judges seek comment on the percentage of broadcasters that do not
use automated playlists. Assuming playlists are completely automated,
is the cost of preparing a Report of Use likely to rise for a Service
which moves from the current 2-weeks per quarter sampling period to
full census? If so, by how much will such costs rise? What specifically
accounts for any such increase?
For those entities that do not use automated playlists, what means
do they use for complying with current reporting requirements? Is all
programming on college and other educational stations done manually? Do
such stations currently have automated playlist capabilities in place?
In other words, does manual programming occur simply as a matter of
creative choice? Where a college radio station does not currently have
an automated playlist capability, what is the cost of obtaining such a
capability? What technologies, if any, are currently employed in
complying with the current requirements? Which companies offer them and
at what cost? What changes, if any, would be required to comply with
the proposed census reporting requirement? What are the likely costs
that would be required to move from the current reporting methodology
to one that would be required under the proposal? Is technology
currently available that would permit entities that do not use
automated playlists to comply with the proposed census provision? If
so, what companies provide such capabilities and at what cost? If such
technology is not currently available, what would be the costs of
developing it?
Dated: April 3, 2009.
James Scott Sledge,
Chief, U.S. Copyright Royalty Judge.
[FR Doc. E9-7950 Filed 4-7-09; 8:45 am]
BILLING CODE 1410-72-P
