Scope of the Copyright Royalty Judges Authority to Adopt Confidentiality Requirements upon Copyright Owners within a Voluntarily Negotiated License Agreement, 47421-47424 [2013-18672]

Download as PDF Federal Register / Vol. 78, No. 150 / Monday, August 5, 2013 / Notices LIBRARY OF CONGRESS U.S. Copyright Office [Docket No. 2011–3 CRB] Scope of the Copyright Royalty Judges Authority to Adopt Confidentiality Requirements upon Copyright Owners within a Voluntarily Negotiated License Agreement U.S. Copyright Office, Library of Congress. ACTION: Final Order. AGENCY: The Copyright Royalty Judges, acting pursuant to 17 U.S.C. 802(f)(1)(B), referred a novel material question of substantive law to the Register of Copyrights concerning the Copyright Royalty Judges’ authority to adopt regulations imposing a duty of confidentiality upon copyright owners, whether or not that duty is included in a voluntarily negotiated license agreement between copyright owners and licensees in a proceeding under section 115 of the Act. The Register of Copyrights responded in a timely fashion by delivering a Memorandum Opinion to the Copyright Royalty Board on July 25, 2013. DATES: Effective Date: July 25, 2013. FOR FURTHER INFORMATION CONTACT: Stephen Ruwe, Attorney Advisor, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707–8380. Telefax: (202) 707– 8366. SUMMARY: In the Copyright Royalty and Distribution Reform Act of 2004, Congress amended Title 17 to replace the Copyright Arbitration Royalty Panel (‘‘CARP’’) with the Copyright Royalty Judges (‘‘CRJs’’). One of the functions of the CRJs is to make determinations and adjustments of reasonable terms and rates of royalty payments as provided in sections 112(e), 114, 115, 116, 118, 119, and 1004 of the Copyright Act. The CRJs have the authority to request from the Register of Copyrights (‘‘Register’’) an interpretation of any novel material question of substantive law that relates to the construction of provisions of Title 17 and arises out the course of the proceeding before the CRJs. See 17 U.S.C. 802(f)(1)(B). On June 25, 2013, the CRJs delivered to the Register: (1) an Order referring a novel material question of substantive law; and (2) a brief filed with the CRJs by Settling Participants (identified below in the Register’s Memorandum Opinion). The CRJs’ delivery of the request for an interpretation triggered the 30–day response period prescribed mstockstill on DSK4VPTVN1PROD with NOTICES SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 20:36 Aug 02, 2013 Jkt 229001 in section 802 of the Copyright Act. This statutory provision states that the Register ‘‘shall transmit his or her decision to the Copyright Royalty Judges a written response within 30 days after the Register receives of all briefs or comments from the participants.’’ See 17 U.S.C. 802(f)(1)(B). The statute also states that ‘‘[i]f such a decision is timely delivered to the Copyright Royalty Judges, the Copyright Royalty Judges shall apply the legal determinations embodied in the decision of the Register of Copyrights in resolving material questions of substantive law.’’ Id. On July 25, 2013 the Register responded in a Memorandum Opinion to the CRJs that addressed the novel questions of law. To provide the public with notice of the decision rendered by the Register, the Memorandum Opinion is reproduced in its entirety, below. Dated: July 29, 2013. Maria A. Pallante, Register of Copyrights. Before the U.S. Copyright Office Library of Congress Washington, DC 20559 In the Matter of Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding Docket No. 2011–3 CRB (Phonorecords II) Memorandum Opinion on a Novel Question of Law I. Procedural Background On May 17, 2012, the Copyright Royalty Judges (‘‘CRJs’’) published for comment in the Federal Register proposed regulations for the section 115 compulsory license, which were the result of a settlement submitted to the CRJs on April 11, 2012. Notice of Proposed Rulemaking, Mechanical and Digital Phonorecord Delivery Compulsory License, Docket No. 2011– 3 CRB Phonorecords II, 77 FR 29259 (May 17, 2012). The proposed regulations included ‘‘confidentiality requirements’’ in 37 CFR 385.12(f) and 385.22(e), which would require copyright owners to maintain in confidence statements of account that they receive under the license. Id. The ‘‘confidentiality requirements’’ proposed for sections 385.12(f) and 385.22(e) state: Confidentiality. A licensee’s statements of account, including any and all information provided by a licensee with respect to the computation of a subminimum, shall be maintained in confidence by any copyright owner, authorized representative or agent that receives it, and shall solely be used by the copyright owner, authorized representative or agent for purposes of reviewing the amounts paid by the licensee and verifying the accuracy of any such payments, and only those employees of the PO 00000 Frm 00151 Fmt 4703 Sfmt 4703 47421 copyright owner, authorized representative or agent who need to have access to such information for such purposes will be given access to such information; provided that in no event shall access be granted to any individual who, on behalf of a record company, is directly involved in negotiating or approving royalty rates in transactions authorizing third party services to undertake licensed activity with respect to sound recordings. A licensee’s statements of account, including any and all information provided by a licensee with respect to the computation of a subminimum, shall not be used for any other purpose, and shall not be disclosed to or used by or for any record company affiliate or any third party, including any third-party record company. Id. at 29262. After considering both the Proposed Settlement regulations and the public comments received in response to them, on March 27, 2013, Chief Copyright Royalty Judge Suzanne Barnett proposed two material questions of substantive law for referral to the Register and invited participants to submit briefs to accompany the referral of questions to the Register of Copyrights, pursuant to 17 U.S.C. 802(f)(1)(A)(ii). The referral asked whether the confidentiality requirements proposed for §§ 385.12(f) and 385.22(e) encroach upon the exclusive statutory domain of the Register under section 115 of the Act. CRJ Order Referring Material Question of Substantive Law, Docket No. 2011–3 CRB (Mar. 27, 2013).1 After receiving a single brief filed jointly by the Settling Participants 2 regarding whether proposed terms encroach upon the exclusive statutory domain of the Register, the Chief Copyright Royalty Judge delivered the referred questions and the Settling Participants brief to the Register on April 17, 2013. Pursuant to 17 U.S.C. 802(f)(1)(A)(ii), the Register issued a timely reply clarifying that the proposed terms do not encroach upon the Register’s authority with respect to statements of account as provided in 17 U.S.C. 115(c)(5). Memorandum Opinion on Material Questions of Substantive Law, Docket No. 2011–3 CRB (May 1, 2013). However, the Register also noted that it is unclear whether the CRJs have any 1 The CRJ Order Referring Material Question of Substantive Law also referred a question and participants’ views regarding detail requirements, which are not at issue in this referral of a novel question of law. 2 The National Music Publishers’ Association, Inc., the Songwriters Guild of America, the Nashville Songwriters Association International, the Church Music Publishers Association, the Recording Industry Association of America, Inc., the Digital Media Association, CTIA—The Wireless Association, Google, Inc., RealNetworks, Inc., Rhapsody International Inc., Cricket Communications, Inc., and Rdio, Inc. E:\FR\FM\05AUN1.SGM 05AUN1 47422 Federal Register / Vol. 78, No. 150 / Monday, August 5, 2013 / Notices independent authority to issue regulations such as the proposed ‘‘confidentiality requirement’’ which would impose obligations on a copyright owner with regard to what he or she is able to do with a statement of account received by a licensee. The Register suggested that the question of whether the CRJs have authority to issue regulations imposing requirements on what a copyright owner (as opposed to a nonexclusive licensee) may do or not do with information in a statement of account after that statement has been prepared and served in accordance with the Office’s regulations represents a novel question of law that may be separately referred to the Register. Id. Pursuant to 17 U.S.C. 802(f)(l)(B), on May 17, 2013 the Chief Copyright Royalty Judge issued an order to the proceeding participants regarding referral of a novel material question and set forth a schedule governing receipt of comments by the participants in the proceeding. On June 7, 2013, the Settling Participants filed the only comment in response to the order. On June 25, 2013, Chief Judge Barnett delivered the following novel material question to the Register, along with the sole comment filed by the Settling Participants: Do the Judges have the statutory authority to adopt regulations imposing a duty of confidentiality upon copyright owners, whether or not that duty is included in a voluntarily negotiated license agreement between copyright owners and licensees in a proceeding under section 115 of the Act? mstockstill on DSK4VPTVN1PROD with NOTICES CRJ Order Referring Novel Question of Law and Setting Briefing Schedule, Docket No. 2011–3 CRB (May 17, 2013). II. Summary of Parties’ Arguments In the sole brief submitted in relation to the referred novel material question to the Register, the Settling Participants assert that it is clear that the CRJs have the authority to issue the confidentiality provisions. In support of this position, the Settling Participants point to three distinct but overlapping statutory grants to the CRJs, namely the authority to: (i) Adopt settlements; (ii) determine terms; and (iii) establish notice and recordkeeping requirements. The Settling Participants claim that each of these grants of authority provides an independent basis for adoption of the confidentiality provisions by the Judges. Brief of Settling Participants, Docket No. 2011–3 CRB Phonorecords II (June 7, 2013) at 6–17. The Settling Participants point out that analogous statutory provisions grant authority relative to the section 114 statutory license, and that based on such grants the Register, the Librarian of VerDate Mar<15>2010 19:07 Aug 02, 2013 Jkt 229001 Congress and the CRJs have routinely adopted section 114 confidentiality provisions that are equivalent to the instant confidentiality provisions. The Settling Participants posit that the confidentiality provisions at issue here are like confidentiality provisions adopted pursuant to the section 114 license and that the only thing that distinguishes section 115 from section 114 in this regard is the grant of certain exclusive authority to the Register with respect to statements of account under section 115. They assert that because the Register has determined that the CRJs’ adoption of the confidentiality provisions does not encroach on the Register’s power with respect to statements of account as provided in section 115(c)(5), there is no question that the statutory language granting authority to the CRJs is sufficient to empower them to adopt the confidentiality provisions. Id. at 6–7. The Settling Participants assert that the CRJs have both the authority and the obligation to adopt settlements among some or all of the participants in a proceeding unless the agreement is contrary to law or a participant in the proceeding objects and the CRJs conclude that the settlement ‘‘does not provide a reasonable basis for setting statutory terms or rates.’’ Id. at 7, citing 17 U.S.C. 801(b)(7)(A). They state that Congress’ clear goal was to streamline the adoption of settlements. They point to legislative history as support for the proposition that Congress intended the CRJs to facilitate and encourage settlement agreements. Id. at 7–8, citing H.R. Rep. No. 108–408, at 24 and 30 (2002). They add that in adopting previous settlements the CRJs have acknowledged this obligation, stating ‘‘we are mandated to adopt the determination of the settling parties to a distribution and rate proceeding’’ Id. at 8, citing 74 FR 4510, 4514 (Jan. 26, 2009). The Settling Participants also note that the Register has confirmed that section 801(b)(7)(A) generally directs the CRJs to adopt settlements, except to the extent that a participant in the proceeding objects to the settlement or where the settlement agreement includes provisions that are contrary to the provisions of the applicable license(s) or otherwise contrary to statutory law. Id. at 8–9, citing 74 FR 4537, 4540 (Jan. 26, 2009). The Settling Participants point out that the only suggestion that anyone has made that the settlement is contrary to law concerned the question of whether there was an encroachment of the Register’s authority with respect to statements of account, and, in that case, the Register determined that there was PO 00000 Frm 00152 Fmt 4703 Sfmt 4703 no such encroachment. Id., citing 78 FR 28,773 (May 16, 2013). The Settling Participants assert that nothing in the statutory text, its legislative history, or any binding precedent, suggests that the CRJs’ authority—and duty—to adopt settlements has any exception for provisions that impose obligations on copyright owners. They also point toward settlements under the section 114 license that impose confidentiality requirements, which have never been challenged by the Register. Id. at 9–10. The Settling Participants state that the grant of authority to determine reasonable terms of royalty payments permits the CRJs to adopt the confidentiality provisions as terms and make them binding on copyright owners. They point out that the statute expressly states that ‘‘[t]he schedule of reasonable rates and terms determined by the Copyright Royalty Judges shall . . . be binding on all copyright owners of nondramatic musical works and persons entitled to obtain a compulsory license.’’ 17 U.S.C. 115(c)(3)(D) (emphasis added). The Settling Participants point to the DC Circuit’s finding that analogous language in section 114 was sufficient to justify imposing audit terms on agents of copyright owners. Id. at 11, citing Recording Indus. Ass’n of Am., Inc. v. Librarian of Congress, 176 F.3d 528, 535 (DC Cir. 1999). They also refer to the legislative history as support for the CRJs’ authority to impose confidentiality provision requirements on copyright owners. Id. at 11–12, citing S. Rep. No. 104–128, at 40 (1995). The Settling Participants then refer to the Register’s prior description of the CRJs’ power to determine terms under section 115, which included a conclusion by the Register that the CRJs may issue terms that are necessary to effectively implement the statutory license and that the authority to set reasonable terms extends only so far as those terms ensured the smooth administration of the license. Id. at 12, citing 73 FR at 48,398 (Aug. 19, 2008). They point out that when making such findings regarding the scope of the CRJs authority to issue terms under section 115, the Register properly relied on authority construing analogous section 114 provisions regarding the CRJs authority to issue terms. Id. at 13. The Settling Participants point to the long history of agents of copyright owners being required to maintain the confidentiality of statements of account as a section 114 term, and that the Register has endorsed such terms under the CARP system and has never taken exception to such terms issued by the CRJs. Id. at 13–15. The Settling E:\FR\FM\05AUN1.SGM 05AUN1 Federal Register / Vol. 78, No. 150 / Monday, August 5, 2013 / Notices Participants state that in the context of the percentage rate structure for section 115 rates, the statements of account contain sensitive financial information and that the confidentiality provisions avoid the risk of competitive injury to users of copyrighted works while ensuring the smooth administration of the license and effectively implement the statutory license. Id. at 15. The Settling Participants point to the CRJs’ notice and recordkeeping authority as support for the confidentiality provisions. Id., citing 17 U.S.C. 115(c)(3)(D), 17 U.S.C. 801(b)(7)(C), and 17 U.S.C. 803(c)(3). They point out that similar provisions authorize the CRJs to issue notice and recordkeeping requirements under the section 114 license. They assert that if section 114 notice and recordkeeping authority permits imposing a requirement of confidential treatment for a report of use, section 115 notice and recordkeeping authority must also permit imposing a requirement of confidential treatment for a section 115 statement of account. Id., at 16–17 mstockstill on DSK4VPTVN1PROD with NOTICES III. Register’s Determination Pursuant to 17 U.S.C. 802(f)(l)(B), the Register issues this timely response to the referred novel material question and determines that the CRJs do not have the authority to adopt the provisions imposing a duty of confidentiality upon copyright owners, regardless of whether the provisions are included in a voluntarily negotiated license agreement between copyright owners and licensees. A. CRJs’ Authority To Determine Reasonable Terms of Payment Under section 115(c)(3)(C), the CRJs are authorized to ‘‘determine reasonable rates and terms of royalty payments.’’ 17 U.S.C. 115(c)(3)(C). However, the confidentiality provisions at issue here would function as an obligation on copyright owners who have already received royalty payments. This kind of restriction is distinct in its nature and potential impact than the terms of royalty payments offered as precedent by the Settling Participants. It is true that section 115(c)(3)(D) states ‘‘[t]he schedule of reasonable rates and terms determined by the Copyright Royalty Judges shall * * * be binding on all copyright owners of nondramatic musical works and persons entitled to obtain a compulsory license.’’ 17 U.S.C. 115(c)(3)(D). It is also true that the DC Circuit, in Recording Indus. Ass’n of Am., Inc., 176 F.3d at 535, found that analogous provisions governing the section 114 license authorize binding copyright owners and their agents with VerDate Mar<15>2010 19:07 Aug 02, 2013 Jkt 229001 regard to terms concerning the audit of royalty payments. However, the audit provisions at issue before the DC Circuit were terms that applied to the method by which accurate royalty payments make their way to copyright owners, and served as an obligation on intermediaries to allow copyright owners to ensure the accuracy of such royalty payments. Similarly, the confidentiality provisions that have been repeatedly established under section 114 are terms that address the method by which accurate royalty payments make their way to copyright owners in accordance with the statute. The confidentiality provisions currently at issue are very different and are not ‘‘terms of royalty payments.’’ They do not address the method by which accurate royalty payments make their way to copyright owners. Indeed, the Settling Participants assert that the confidentiality provisions are intended to prevent the risk of competitive injury to licensees by disclosure of the licensees’ financial information. While the confidentiality provisions may avoid a risk of competitive injury for licensees, such provisions are not necessary to effectively implement the statutory license or to insure the smooth administration of the license. The Register notes that the previous determination of rates and terms for the section 115 license, which also included a percentage rate structure, did not include such provisions and the Settling Participants do not identify any apparent detrimental effect on administration of the license. Having found that the confidentiality provisions are not the sort of terms of payment that the CRJs are authorized to issue, the Register also notes a policy concern that, in the context of statutory licenses, government actors should err on the side of transparency. Transparency, serves to provide maximum confidence in the law for all who rely upon it, including those who require access to the details of license records. 47423 By the clear language of the statute, the CRJs are authorized to issue notice and recordkeeping requirements under which records of such use shall be kept and made available by licensees. Section 115(c)(3)(D) does not provide authority for the CRJs to issue notice and recordkeeping requirements under which records of such use shall be kept and made available by copyright owners. The Settling Participants have not pointed to any other authority by which the CRJs’ notice and recordkeeping authority authorizes the imposition of obligations on the copyright owners who are subject to the section 115 license. B. CRJs’ Authority To Establish Notice and Recordkeeping Requirements The relevant notice and recordkeeping provisions authorize the CRJs to ‘‘establish requirements by which copyright owners may receive reasonable notice of the use of their works under this section, and under which records of such use shall be kept and made available by persons making digital phonorecord deliveries.’’ 17 U.S.C. 115(c)(3)(D) (emphasis added).3 C. CRJs’ Authority To Adopt Settlements The Register acknowledges that Congress’ clear goal was to streamline the adoption of settlements. However, the provisions of section 801(b)(7)(A) under which the CRJs are able to adopt aspects of an agreement are limited. The CRJs are not compelled to adopt a privately negotiated agreement to the extent that it includes provisions that are inconsistent with the statutory license. As the Register has stated previously, section 801(b)(7)(A) ‘‘does not foreclose the CRJs from ascertaining whether specific provisions are contrary to law.’’ See 74 FR 4537, 4540 (Jan. 26, 2009). The Settling Participants acknowledge that section 801(b)(7)(A) generally directs the CRJs to adopt settlements, except to the extent that a participant in the proceeding objects to the settlement or where the settlement agreement includes provisions that are contrary to the provisions of the applicable statute or otherwise contrary to statutory law. Brief of Settling Participants, Docket No. 2011–3 CRB Phonorecords II (June 7, 2013) at 8–9, citing 74 FR 4537, 4540 (Jan. 26, 2009). Moreover, courts have consistently held that agencies cannot adopt regulations that are contrary to law. See, e.g., Cal. Cosmetology Coalition v. Riley, 110 F.3d 1454, 1460–61 (9th Cir. 1997) (‘‘The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law, for no such power can be delegated by Congress, but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity.’’). As set forth above, the Register determines that the CRJs do not have the statutory authority to adopt 3 See also, 17 U.S.C. 803(c)(3) (‘‘the Copyright Royalty Judges may specify notice and recordkeeping requirements of users of the copyrights at issue’’) (emphasis added). PO 00000 Frm 00153 Fmt 4703 Sfmt 4703 E:\FR\FM\05AUN1.SGM 05AUN1 47424 Federal Register / Vol. 78, No. 150 / Monday, August 5, 2013 / Notices confidentiality provisions that would impose obligations on a copyright owner with regard to what he or she is able to do with a statement of account received by a licensee. The Register’s finding of the lack of CRJs’ authority to impose such confidentiality requirements is consistent with court findings that statutory licenses must ‘‘be construed narrowly,’’ especially as they apply against the rights of copyright owners. See, e.g., Fame Publ’g Co. v. Alabama Custom Tape, Inc., 507 F.2d 667, 670 (5th Cir. 1975). Accordingly, the Register reads the statute as precluding the CRJs from adopting the confidentiality provisions, including in the context of a negotiated license agreement. Dated: July 25, 2013. Maria A. Pallante, Register of Copyrights. [FR Doc. 2013–18672 Filed 8–2–13; 8:45 am] BILLING CODE P NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [Notice 13–087] Notice of Intent To Grant Partially Exclusive License grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Competing applications completed and received by NASA within fifteen (15) days of the date of this published notice will also be treated as objections to the grant of the contemplated exclusive license. Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552. ADDRESSES: Objections relating to the prospective license may be submitted to Patent Counsel, Office of Chief Counsel, NASA Johnson Space Center, 2101 NASA Parkway, Houston, Texas 77058, Mail Code AL; Phone (281) 483–3021; Fax (281) 483–6936 FOR FURTHER INFORMATION CONTACT: Ted Ro, Intellectual Property Attorney, Office of Chief Counsel, NASA Johnson Space Center, 2101 NASA Parkway, Houston, Texas 77058, Mail Code AL; Phone (281) 244–7148; Fax (281) 483– 6936. Information about other NASA inventions available for licensing can be found online at https:// technology.nasa.gov/. Sumara M. Thompson-King, Deputy General Counsel. National Aeronautics and Space Administration. ACTION: Notice of Intent to Grant Exclusive License. AGENCY: [FR Doc. 2013–18668 Filed 8–2–13; 8:45 am] BILLING CODE 7510–13–P This notice is issued in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant an partially exclusive license in the United States to practice the inventions described and claimed in USPN 6,730,498, Production of Functional Proteins: Balance of Shear Stress and Gravity, NASA Case No. MSC–22859–1 to Technology Applications International Corporation ` (TAIC)/Renuell International Incorporated, having its principal place of business in Aventura, Florida. The fields of use may be limited to topical applications including shampoo. The patent rights in this invention have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective partially exclusive license will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. DATES: The prospective partially exclusive license may be granted unless within fifteen (15)days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the mstockstill on DSK4VPTVN1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 19:07 Aug 02, 2013 Jkt 229001 NATIONAL CREDIT UNION ADMINISTRATION Agency Information Collection Activities: Submission to OMB for Reinstatement, With Change, of a Previously Approved Collection; Comment Request National Credit Union Administration (NCUA). ACTION: Request for comment. AGENCY: NCUA intends to submit the following information collection to the Office of Management and Budget (OMB) for reinstatement under the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. Chapter 35). This information collection is published to obtain comments from the public. The Truth in Savings Act (TISA) requires depository institutions to disclose to consumers certain information, including interest rates, bonuses, and fees associated with their deposit accounts and accompanying services. TISA also requires NCUA to promulgate implementing regulations governing all credit unions. NCUA regulations require SUMMARY: PO 00000 Frm 00154 Fmt 4703 Sfmt 4703 credit unions to provide specific disclosures when an account is opened, when a disclosed term changes or a term account is close to renewal, on periodic statements of account activity, in advertisements, and upon a member or potential member’s request. The disclosures are for the benefit of credit union members and consumers; NCUA does not collect the information. Additionally, NCUA regulations contain a recordkeeping requirement for compliance purposes. DATES: Comments will be accepted until October 4, 2013. ADDRESSES: Interested parties are invited to submit written comments to the NCUA Contact and the OMB Reviewer listed below: NCUA Contact: Tracy Crews, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314–3428, Fax No. 703–837–2861, Email: OCIOPRA@ncua.gov. OMB Contact: Office of Management and Budget, ATTN: Desk Officer for the National Credit Union Administration, Office of Information and Regulatory Affairs, Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Requests for additional information, a copy of the information collection request or a copy of submitted comments should be directed to Tracy Crews at the National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314–3428, or at (703) 518–6444. SUPPLEMENTARY INFORMATION: I. Abstract and Request for Comments NCUA is reinstating the information collection approved as OMB control number 3133–0134, under the Truth in Savings Act (TISA), 12 U.S.C. 4301 et seq. TISA requires depository institutions to disclose to consumers certain information, including interest rates, bonuses, and fees associated with their deposit accounts and accompanying services. Clear and uniform disclosures of the interest rates payable on deposit accounts and the fees assessable against them by depository institutions permits consumers to make meaningful decisions about their finances. Under TISA, NCUA must promulgate regulations substantially similar to those issued by the Consumer Financial Protection Bureau, taking into account the nature of credit unions. See 12 U.S.C. 4311. NCUA’s regulations governing all credit unions are found in 12 CFR Part 707. For the benefit of credit union members and consumers, NCUA regulations require credit unions to provide specific disclosures when an E:\FR\FM\05AUN1.SGM 05AUN1

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Library of Congress
U.S. Copyright Office

[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)]
[Notices]
[Pages 47421-47424]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18672]



[[Page 47421]]

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LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2011-3 CRB]


Scope of the Copyright Royalty Judges Authority to Adopt 
Confidentiality Requirements upon Copyright Owners within a Voluntarily 
Negotiated License Agreement

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Final Order.

-----------------------------------------------------------------------

SUMMARY: The Copyright Royalty Judges, acting pursuant to 17 U.S.C. 
802(f)(1)(B), referred a novel material question of substantive law to 
the Register of Copyrights concerning the Copyright Royalty Judges' 
authority to adopt regulations imposing a duty of confidentiality upon 
copyright owners, whether or not that duty is included in a voluntarily 
negotiated license agreement between copyright owners and licensees in 
a proceeding under section 115 of the Act. The Register of Copyrights 
responded in a timely fashion by delivering a Memorandum Opinion to the 
Copyright Royalty Board on July 25, 2013.

DATES: Effective Date: July 25, 2013.

FOR FURTHER INFORMATION CONTACT: Stephen Ruwe, Attorney Advisor, 
Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone: 
(202) 707-8380. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION: In the Copyright Royalty and Distribution 
Reform Act of 2004, Congress amended Title 17 to replace the Copyright 
Arbitration Royalty Panel (``CARP'') with the Copyright Royalty Judges 
(``CRJs''). One of the functions of the CRJs is to make determinations 
and adjustments of reasonable terms and rates of royalty payments as 
provided in sections 112(e), 114, 115, 116, 118, 119, and 1004 of the 
Copyright Act. The CRJs have the authority to request from the Register 
of Copyrights (``Register'') an interpretation of any novel material 
question of substantive law that relates to the construction of 
provisions of Title 17 and arises out the course of the proceeding 
before the CRJs. See 17 U.S.C. 802(f)(1)(B).
    On June 25, 2013, the CRJs delivered to the Register: (1) an Order 
referring a novel material question of substantive law; and (2) a brief 
filed with the CRJs by Settling Participants (identified below in the 
Register's Memorandum Opinion). The CRJs' delivery of the request for 
an interpretation triggered the 30-day response period prescribed in 
section 802 of the Copyright Act. This statutory provision states that 
the Register ``shall transmit his or her decision to the Copyright 
Royalty Judges a written response within 30 days after the Register 
receives of all briefs or comments from the participants.'' See 17 
U.S.C. 802(f)(1)(B). The statute also states that ``[i]f such a 
decision is timely delivered to the Copyright Royalty Judges, the 
Copyright Royalty Judges shall apply the legal determinations embodied 
in the decision of the Register of Copyrights in resolving material 
questions of substantive law.'' Id. On July 25, 2013 the Register 
responded in a Memorandum Opinion to the CRJs that addressed the novel 
questions of law. To provide the public with notice of the decision 
rendered by the Register, the Memorandum Opinion is reproduced in its 
entirety, below.

    Dated: July 29, 2013.
Maria A. Pallante,
Register of Copyrights.

Before the U.S. Copyright Office Library of Congress Washington, DC 
20559

    In the Matter of Mechanical and Digital Phonorecord Delivery 
Rate Adjustment Proceeding
Docket No. 2011-3 CRB (Phonorecords II)

Memorandum Opinion on a Novel Question of Law

I. Procedural Background

    On May 17, 2012, the Copyright Royalty Judges (``CRJs'') published 
for comment in the Federal Register proposed regulations for the 
section 115 compulsory license, which were the result of a settlement 
submitted to the CRJs on April 11, 2012. Notice of Proposed Rulemaking, 
Mechanical and Digital Phonorecord Delivery Compulsory License, Docket 
No. 2011-3 CRB Phonorecords II, 77 FR 29259 (May 17, 2012). The 
proposed regulations included ``confidentiality requirements'' in 37 
CFR 385.12(f) and 385.22(e), which would require copyright owners to 
maintain in confidence statements of account that they receive under 
the license. Id.
    The ``confidentiality requirements'' proposed for sections 
385.12(f) and 385.22(e) state:

Confidentiality. A licensee's statements of account, including any 
and all information provided by a licensee with respect to the 
computation of a subminimum, shall be maintained in confidence by 
any copyright owner, authorized representative or agent that 
receives it, and shall solely be used by the copyright owner, 
authorized representative or agent for purposes of reviewing the 
amounts paid by the licensee and verifying the accuracy of any such 
payments, and only those employees of the copyright owner, 
authorized representative or agent who need to have access to such 
information for such purposes will be given access to such 
information; provided that in no event shall access be granted to 
any individual who, on behalf of a record company, is directly 
involved in negotiating or approving royalty rates in transactions 
authorizing third party services to undertake licensed activity with 
respect to sound recordings. A licensee's statements of account, 
including any and all information provided by a licensee with 
respect to the computation of a subminimum, shall not be used for 
any other purpose, and shall not be disclosed to or used by or for 
any record company affiliate or any third party, including any 
third-party record company.

Id. at 29262.
    After considering both the Proposed Settlement regulations and the 
public comments received in response to them, on March 27, 2013, Chief 
Copyright Royalty Judge Suzanne Barnett proposed two material questions 
of substantive law for referral to the Register and invited 
participants to submit briefs to accompany the referral of questions to 
the Register of Copyrights, pursuant to 17 U.S.C. 802(f)(1)(A)(ii). The 
referral asked whether the confidentiality requirements proposed for 
Sec. Sec.  385.12(f) and 385.22(e) encroach upon the exclusive 
statutory domain of the Register under section 115 of the Act. CRJ 
Order Referring Material Question of Substantive Law, Docket No. 2011-3 
CRB (Mar. 27, 2013).\1\ After receiving a single brief filed jointly by 
the Settling Participants \2\ regarding whether proposed terms encroach 
upon the exclusive statutory domain of the Register, the Chief 
Copyright Royalty Judge delivered the referred questions and the 
Settling Participants brief to the Register on April 17, 2013.
---------------------------------------------------------------------------

    \1\ The CRJ Order Referring Material Question of Substantive Law 
also referred a question and participants' views regarding detail 
requirements, which are not at issue in this referral of a novel 
question of law.
    \2\ The National Music Publishers' Association, Inc., the 
Songwriters Guild of America, the Nashville Songwriters Association 
International, the Church Music Publishers Association, the 
Recording Industry Association of America, Inc., the Digital Media 
Association, CTIA--The Wireless Association, Google, Inc., 
RealNetworks, Inc., Rhapsody International Inc., Cricket 
Communications, Inc., and Rdio, Inc.
---------------------------------------------------------------------------

    Pursuant to 17 U.S.C. 802(f)(1)(A)(ii), the Register issued a 
timely reply clarifying that the proposed terms do not encroach upon 
the Register's authority with respect to statements of account as 
provided in 17 U.S.C. 115(c)(5). Memorandum Opinion on Material 
Questions of Substantive Law, Docket No. 2011-3 CRB (May 1, 2013). 
However, the Register also noted that it is unclear whether the CRJs 
have any

[[Page 47422]]

independent authority to issue regulations such as the proposed 
``confidentiality requirement'' which would impose obligations on a 
copyright owner with regard to what he or she is able to do with a 
statement of account received by a licensee. The Register suggested 
that the question of whether the CRJs have authority to issue 
regulations imposing requirements on what a copyright owner (as opposed 
to a nonexclusive licensee) may do or not do with information in a 
statement of account after that statement has been prepared and served 
in accordance with the Office's regulations represents a novel question 
of law that may be separately referred to the Register. Id.
    Pursuant to 17 U.S.C. 802(f)(l)(B), on May 17, 2013 the Chief 
Copyright Royalty Judge issued an order to the proceeding participants 
regarding referral of a novel material question and set forth a 
schedule governing receipt of comments by the participants in the 
proceeding. On June 7, 2013, the Settling Participants filed the only 
comment in response to the order. On June 25, 2013, Chief Judge Barnett 
delivered the following novel material question to the Register, along 
with the sole comment filed by the Settling Participants:

Do the Judges have the statutory authority to adopt regulations 
imposing a duty of confidentiality upon copyright owners, whether or 
not that duty is included in a voluntarily negotiated license 
agreement between copyright owners and licensees in a proceeding 
under section 115 of the Act?

CRJ Order Referring Novel Question of Law and Setting Briefing 
Schedule, Docket No. 2011-3 CRB (May 17, 2013).

II. Summary of Parties' Arguments

    In the sole brief submitted in relation to the referred novel 
material question to the Register, the Settling Participants assert 
that it is clear that the CRJs have the authority to issue the 
confidentiality provisions. In support of this position, the Settling 
Participants point to three distinct but overlapping statutory grants 
to the CRJs, namely the authority to: (i) Adopt settlements; (ii) 
determine terms; and (iii) establish notice and recordkeeping 
requirements. The Settling Participants claim that each of these grants 
of authority provides an independent basis for adoption of the 
confidentiality provisions by the Judges. Brief of Settling 
Participants, Docket No. 2011-3 CRB Phonorecords II (June 7, 2013) at 
6-17.
    The Settling Participants point out that analogous statutory 
provisions grant authority relative to the section 114 statutory 
license, and that based on such grants the Register, the Librarian of 
Congress and the CRJs have routinely adopted section 114 
confidentiality provisions that are equivalent to the instant 
confidentiality provisions. The Settling Participants posit that the 
confidentiality provisions at issue here are like confidentiality 
provisions adopted pursuant to the section 114 license and that the 
only thing that distinguishes section 115 from section 114 in this 
regard is the grant of certain exclusive authority to the Register with 
respect to statements of account under section 115. They assert that 
because the Register has determined that the CRJs' adoption of the 
confidentiality provisions does not encroach on the Register's power 
with respect to statements of account as provided in section 115(c)(5), 
there is no question that the statutory language granting authority to 
the CRJs is sufficient to empower them to adopt the confidentiality 
provisions. Id. at 6-7.
    The Settling Participants assert that the CRJs have both the 
authority and the obligation to adopt settlements among some or all of 
the participants in a proceeding unless the agreement is contrary to 
law or a participant in the proceeding objects and the CRJs conclude 
that the settlement ``does not provide a reasonable basis for setting 
statutory terms or rates.'' Id. at 7, citing 17 U.S.C. 801(b)(7)(A). 
They state that Congress' clear goal was to streamline the adoption of 
settlements. They point to legislative history as support for the 
proposition that Congress intended the CRJs to facilitate and encourage 
settlement agreements. Id. at 7-8, citing H.R. Rep. No. 108-408, at 24 
and 30 (2002). They add that in adopting previous settlements the CRJs 
have acknowledged this obligation, stating ``we are mandated to adopt 
the determination of the settling parties to a distribution and rate 
proceeding'' Id. at 8, citing 74 FR 4510, 4514 (Jan. 26, 2009). The 
Settling Participants also note that the Register has confirmed that 
section 801(b)(7)(A) generally directs the CRJs to adopt settlements, 
except to the extent that a participant in the proceeding objects to 
the settlement or where the settlement agreement includes provisions 
that are contrary to the provisions of the applicable license(s) or 
otherwise contrary to statutory law. Id. at 8-9, citing 74 FR 4537, 
4540 (Jan. 26, 2009).
    The Settling Participants point out that the only suggestion that 
anyone has made that the settlement is contrary to law concerned the 
question of whether there was an encroachment of the Register's 
authority with respect to statements of account, and, in that case, the 
Register determined that there was no such encroachment. Id., citing 78 
FR 28,773 (May 16, 2013). The Settling Participants assert that nothing 
in the statutory text, its legislative history, or any binding 
precedent, suggests that the CRJs' authority--and duty--to adopt 
settlements has any exception for provisions that impose obligations on 
copyright owners. They also point toward settlements under the section 
114 license that impose confidentiality requirements, which have never 
been challenged by the Register. Id. at 9-10.
    The Settling Participants state that the grant of authority to 
determine reasonable terms of royalty payments permits the CRJs to 
adopt the confidentiality provisions as terms and make them binding on 
copyright owners. They point out that the statute expressly states that 
``[t]he schedule of reasonable rates and terms determined by the 
Copyright Royalty Judges shall . . . be binding on all copyright owners 
of nondramatic musical works and persons entitled to obtain a 
compulsory license.'' 17 U.S.C. 115(c)(3)(D) (emphasis added).
    The Settling Participants point to the DC Circuit's finding that 
analogous language in section 114 was sufficient to justify imposing 
audit terms on agents of copyright owners. Id. at 11, citing Recording 
Indus. Ass'n of Am., Inc. v. Librarian of Congress, 176 F.3d 528, 535 
(DC Cir. 1999). They also refer to the legislative history as support 
for the CRJs' authority to impose confidentiality provision 
requirements on copyright owners. Id. at 11-12, citing S. Rep. No. 104-
128, at 40 (1995). The Settling Participants then refer to the 
Register's prior description of the CRJs' power to determine terms 
under section 115, which included a conclusion by the Register that the 
CRJs may issue terms that are necessary to effectively implement the 
statutory license and that the authority to set reasonable terms 
extends only so far as those terms ensured the smooth administration of 
the license. Id. at 12, citing 73 FR at 48,398 (Aug. 19, 2008). They 
point out that when making such findings regarding the scope of the 
CRJs authority to issue terms under section 115, the Register properly 
relied on authority construing analogous section 114 provisions 
regarding the CRJs authority to issue terms. Id. at 13.
    The Settling Participants point to the long history of agents of 
copyright owners being required to maintain the confidentiality of 
statements of account as a section 114 term, and that the Register has 
endorsed such terms under the CARP system and has never taken exception 
to such terms issued by the CRJs. Id. at 13-15. The Settling

[[Page 47423]]

Participants state that in the context of the percentage rate structure 
for section 115 rates, the statements of account contain sensitive 
financial information and that the confidentiality provisions avoid the 
risk of competitive injury to users of copyrighted works while ensuring 
the smooth administration of the license and effectively implement the 
statutory license. Id. at 15.
    The Settling Participants point to the CRJs' notice and 
recordkeeping authority as support for the confidentiality provisions. 
Id., citing 17 U.S.C. 115(c)(3)(D), 17 U.S.C. 801(b)(7)(C), and 17 
U.S.C. 803(c)(3). They point out that similar provisions authorize the 
CRJs to issue notice and recordkeeping requirements under the section 
114 license. They assert that if section 114 notice and recordkeeping 
authority permits imposing a requirement of confidential treatment for 
a report of use, section 115 notice and recordkeeping authority must 
also permit imposing a requirement of confidential treatment for a 
section 115 statement of account. Id., at 16-17

III. Register's Determination

    Pursuant to 17 U.S.C. 802(f)(l)(B), the Register issues this timely 
response to the referred novel material question and determines that 
the CRJs do not have the authority to adopt the provisions imposing a 
duty of confidentiality upon copyright owners, regardless of whether 
the provisions are included in a voluntarily negotiated license 
agreement between copyright owners and licensees.

A. CRJs' Authority To Determine Reasonable Terms of Payment

    Under section 115(c)(3)(C), the CRJs are authorized to ``determine 
reasonable rates and terms of royalty payments.'' 17 U.S.C. 
115(c)(3)(C). However, the confidentiality provisions at issue here 
would function as an obligation on copyright owners who have already 
received royalty payments. This kind of restriction is distinct in its 
nature and potential impact than the terms of royalty payments offered 
as precedent by the Settling Participants.
    It is true that section 115(c)(3)(D) states ``[t]he schedule of 
reasonable rates and terms determined by the Copyright Royalty Judges 
shall * * * be binding on all copyright owners of nondramatic musical 
works and persons entitled to obtain a compulsory license.'' 17 U.S.C. 
115(c)(3)(D). It is also true that the DC Circuit, in Recording Indus. 
Ass'n of Am., Inc., 176 F.3d at 535, found that analogous provisions 
governing the section 114 license authorize binding copyright owners 
and their agents with regard to terms concerning the audit of royalty 
payments. However, the audit provisions at issue before the DC Circuit 
were terms that applied to the method by which accurate royalty 
payments make their way to copyright owners, and served as an 
obligation on intermediaries to allow copyright owners to ensure the 
accuracy of such royalty payments. Similarly, the confidentiality 
provisions that have been repeatedly established under section 114 are 
terms that address the method by which accurate royalty payments make 
their way to copyright owners in accordance with the statute. The 
confidentiality provisions currently at issue are very different and 
are not ``terms of royalty payments.'' They do not address the method 
by which accurate royalty payments make their way to copyright owners. 
Indeed, the Settling Participants assert that the confidentiality 
provisions are intended to prevent the risk of competitive injury to 
licensees by disclosure of the licensees' financial information.
    While the confidentiality provisions may avoid a risk of 
competitive injury for licensees, such provisions are not necessary to 
effectively implement the statutory license or to insure the smooth 
administration of the license. The Register notes that the previous 
determination of rates and terms for the section 115 license, which 
also included a percentage rate structure, did not include such 
provisions and the Settling Participants do not identify any apparent 
detrimental effect on administration of the license.
    Having found that the confidentiality provisions are not the sort 
of terms of payment that the CRJs are authorized to issue, the Register 
also notes a policy concern that, in the context of statutory licenses, 
government actors should err on the side of transparency. Transparency, 
serves to provide maximum confidence in the law for all who rely upon 
it, including those who require access to the details of license 
records.

B. CRJs' Authority To Establish Notice and Recordkeeping Requirements

    The relevant notice and recordkeeping provisions authorize the CRJs 
to ``establish requirements by which copyright owners may receive 
reasonable notice of the use of their works under this section, and 
under which records of such use shall be kept and made available by 
persons making digital phonorecord deliveries.'' 17 U.S.C. 115(c)(3)(D) 
(emphasis added).\3\ By the clear language of the statute, the CRJs are 
authorized to issue notice and recordkeeping requirements under which 
records of such use shall be kept and made available by licensees. 
Section 115(c)(3)(D) does not provide authority for the CRJs to issue 
notice and recordkeeping requirements under which records of such use 
shall be kept and made available by copyright owners. The Settling 
Participants have not pointed to any other authority by which the CRJs' 
notice and recordkeeping authority authorizes the imposition of 
obligations on the copyright owners who are subject to the section 115 
license.
---------------------------------------------------------------------------

    \3\ See also, 17 U.S.C. 803(c)(3) (``the Copyright Royalty 
Judges may specify notice and recordkeeping requirements of users of 
the copyrights at issue'') (emphasis added).
---------------------------------------------------------------------------

C. CRJs' Authority To Adopt Settlements

    The Register acknowledges that Congress' clear goal was to 
streamline the adoption of settlements. However, the provisions of 
section 801(b)(7)(A) under which the CRJs are able to adopt aspects of 
an agreement are limited. The CRJs are not compelled to adopt a 
privately negotiated agreement to the extent that it includes 
provisions that are inconsistent with the statutory license. As the 
Register has stated previously, section 801(b)(7)(A) ``does not 
foreclose the CRJs from ascertaining whether specific provisions are 
contrary to law.'' See 74 FR 4537, 4540 (Jan. 26, 2009). The Settling 
Participants acknowledge that section 801(b)(7)(A) generally directs 
the CRJs to adopt settlements, except to the extent that a participant 
in the proceeding objects to the settlement or where the settlement 
agreement includes provisions that are contrary to the provisions of 
the applicable statute or otherwise contrary to statutory law. Brief of 
Settling Participants, Docket No. 2011-3 CRB Phonorecords II (June 7, 
2013) at 8-9, citing 74 FR 4537, 4540 (Jan. 26, 2009). Moreover, courts 
have consistently held that agencies cannot adopt regulations that are 
contrary to law. See, e.g., Cal. Cosmetology Coalition v. Riley, 110 
F.3d 1454, 1460-61 (9th Cir. 1997) (``The power of an administrative 
officer or board to administer a federal statute and to prescribe rules 
and regulations to that end is not the power to make law, for no such 
power can be delegated by Congress, but the power to adopt regulations 
to carry into effect the will of Congress as expressed by the statute. 
A regulation which does not do this, but operates to create a rule out 
of harmony with the statute, is a mere nullity.'').
    As set forth above, the Register determines that the CRJs do not 
have the statutory authority to adopt

[[Page 47424]]

confidentiality provisions that would impose obligations on a copyright 
owner with regard to what he or she is able to do with a statement of 
account received by a licensee. The Register's finding of the lack of 
CRJs' authority to impose such confidentiality requirements is 
consistent with court findings that statutory licenses must ``be 
construed narrowly,'' especially as they apply against the rights of 
copyright owners. See, e.g., Fame Publ'g Co. v. Alabama Custom Tape, 
Inc., 507 F.2d 667, 670 (5th Cir. 1975). Accordingly, the Register 
reads the statute as precluding the CRJs from adopting the 
confidentiality provisions, including in the context of a negotiated 
license agreement.

    Dated: July 25, 2013.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2013-18672 Filed 8-2-13; 8:45 am]
BILLING CODE P

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