Digital Performance Right in Sound Recordings and Ephemeral Recordings, 15958-15963 [2015-06896]

Download as PDF 15958 Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules • 405 KAR 8:010. General provisions for permits: This regulation has been amended to provide that permittees shall submit a minor revision application for the purpose of providing a full-cost reclamation bonding estimate to the cabinet. This was done to provide the Division of Mine Permits 30 working days after the notice of administrative completeness to review full-cost bonding revisions. The original provisions allowed for 15 working days. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES or at www.regulations.gov. III. Public Comment Procedures Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program. As mentioned earlier, if you submitted comments on the first submission during the public comment period (79 FR 11796) you do not need to resubmit them, we will be considering these comments in our analysis of the total submission. Electric or Written Comments If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications. We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed (see ADDRESSES) will be included in the docket for this rulemaking and considered. mstockstill on DSK4VPTVN1PROD with PROPOSALS Public Availability of Comments Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we VerDate Sep<11>2014 19:13 Mar 25, 2015 Jkt 235001 cannot guarantee that we will be able to do so. Public Hearing If you wish to speak at a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., EST), on April 10, 2015. If you are disabled and need reasonable accommodation to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard. Public Meeting If there is only limited interest in having an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the administrative record. IV. Procedural Determinations Executive Order 12866—Regulatory Planning and Review This rule is exempt from review by the Office of Management and Budget (OMB) under Executive Order 12866. Other Laws and Executive Orders Affecting Rulemaking When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule. List of Subjects in 30 CFR Part 917 Intergovernmental relations, Surface mining, Underground mining. Dated: December 29, 2014. David G. Hartos, Deputy Regional Director, Appalachian Region. [FR Doc. 2015–06962 Filed 3–25–15; 8:45 am] BILLING CODE 4310–05–P LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 380 [Docket No. 2014–CRB–0001–WR (2016– 2020) (Web IV)] Digital Performance Right in Sound Recordings and Ephemeral Recordings Copyright Royalty Board, Library of Congress. ACTION: Proposed rule. AGENCY: The Copyright Royalty Judges are publishing for comment proposed regulations governing the rates and terms for the digital performances of sound recordings by certain public radio stations and for the making of ephemeral recordings necessary to facilitate those transmissions for the period commencing January 1, 2016, and ending on December 31, 2020. DATES: Comments and objections, if any, are due no later than April 16, 2015. ADDRESSES: The proposed rule is posted on the agency’s Web site (www.loc.gov/ crb). Submit electronic comments online at https://www.regulations.gov or via email to crb@loc.gov. Those who choose not to submit comments electronically should see How to Submit Comments in the SUPPLEMENTARY INFORMATION section below for physical addresses and further instructions. FOR FURTHER INFORMATION CONTACT: Kimberly Whittle, Attorney Advisor, by telephone at (202) 707–7658, or by email at crb@loc.gov. SUPPLEMENTARY INFORMATION: SUMMARY: Background On February 24, 2015, the Copyright Royalty Judges (Judges) received a joint E:\FR\FM\26MRP1.SGM 26MRP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules motion from SoundExchange, Inc., National Public Radio, Inc., and the Corporation for Public Broadcasting to adopt a partial settlement of their interests and those of American Public Media, Public Radio International, Public Radio Exchange, and other unnamed public radio stations (together, the Settling Parties) regarding Web IV rates and terms for 2016–2020.1 Joint Motion to Adopt Partial Settlement, Docket No. 2014–CRB–0001–WR (2016– 2020). Their interests concern the rule setting minimum copyright royalty fees and terms that the Judges will establish for compulsory copyright licenses for certain internet transmissions of sound recordings by public radio stations for the period from January 1, 2016, through December 31, 2020. SoundExchange, Inc. represents sound recording copyright owners and performers. The Settling Parties are users of the copyrighted material including public radio stations. The Judges hereby publish the proposed settlement and request comments from the public. Section 114 of the Copyright Act, title 17 of the United States Code, provides a statutory license that allows for the public performance of sound recordings by means of a digital audio transmission by, among others, eligible nonsubscription transmission services. 17 U.S.C. 114(f). For purposes of the section 114 license, an ‘‘eligible nonsubscription transmission’’ is a noninteractive digital audio transmission that does not require a subscription for receiving the transmission. The transmission must also be made as part of a service that provides audio programming consisting in whole or in part of performances of sound recordings the purpose of which is to provide audio or other entertainment programming, but not to sell, advertise, or promote particular goods or services. See 17 U.S.C. 114(j)(6). Services using the section 114 license may need to make one or more temporary or ‘‘ephemeral’’ copies of a sound recording in order to facilitate the transmission of that recording. The section 112 statutory license allows for the making of the necessary ephemeral reproductions. 17 U.S.C. 112(e). Chapter 8 of the Copyright Act requires the Judges to conduct proceedings every five years to determine the rates and terms for the sections 114 and 112 statutory licenses. 1 Web IV is short for Webcasting IV. This proceeding is the fourth since Congress enacted the compulsory sound recording performance license for webcasting. VerDate Sep<11>2014 19:13 Mar 25, 2015 Jkt 235001 17 U.S.C. 801(b)(1), 804(b)(3)(A). The current proceeding commenced in January 2014 for rates and terms that will become effective on January 1, 2016, and end on December 31, 2020. Pursuant to section 804(b)(3)(A), the Judges published in the Federal Register a notice commencing the proceeding and requesting that interested parties submit their petitions to participate. 79 FR 412 (January 3, 2014). The following parties submitted Petitions to Participate: 8tracks, Inc.; AccuRadio, LLC; Amazon.com, Inc.; Apple Inc; Beats Music, LLC; Clear Channel; CMN, Inc.; College Broadcasters, Inc. (CBI); CustomChannels.net, LLC; Digital Media Association (DiMA); Digitally Imported, Inc.; Educational Media Foundation; Feed Media, Inc.; Geo Music Group; Harvard Radio Broadcasting Inc. (WHRB); idobi Network; Intercollegiate Broadcasting System, Inc. (IBS); Music Reports, Inc.; National Association of Broadcasters (NAB); National Music Publishers Association (NMPA); National Public Radio (NPR); National Religious Broadcasters Noncommercial Music License Committee (NRBNMLC); Pandora Media Inc.; Rhapsody International, Inc.; Sirius XM Radio Inc.; SomaFM.com LLC; SoundExchange, Inc. (SX); Spotify USA Inc.; and Triton.2 The Judges set the timetable for the three-month negotiation period for February 21, 2014, through May 22, 2014. See 17 U.S.C. 803(b)(3). The Judges set December 22, 2014, as the deadline by which participants were to submit amended written direct statements. On February 24, 2015, SoundExchange and the Settling Parties submitted to the Judges a joint motion to adopt a partial settlement of their interests in the proceeding. The parties requested that the Judges make their decision on the motion expeditiously, as the hearings in this rate proceeding are scheduled to commence on April 27, 2015. Statutory Timing of Adoption of Rates and Terms Section 801(b)(7)(A) allows for the adoption of rates and terms negotiated by ‘‘some or all of the participants in a proceeding at any time during the proceeding’’ provided the parties submit the negotiated rates and terms to the 2 The following ten parties have withdrawn their Petitions to Participate: 8tracks, Inc.; Amazon.com, Inc.; CMN, Inc.; CustomChannels.net, LLC; Digitally Imported, Inc.; Feed Media, Inc.; idobi Network; Rhapsody International, Inc.; SomaFM.com LLC; and Spotify USA Inc. Three parties, Music Reports, Inc., NMPA, and Triton Digital, Inc., have been dismissed from the proceeding. PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 15959 Judges for approval. That provision directs the Judges to provide those who would be bound by the negotiated rates and terms an opportunity to comment on the agreement. Unless a participant in a proceeding objects and the Judges conclude that the agreement does not provide a reasonable basis for setting statutory rates or terms, the Judges adopt the negotiated rates and terms. 17 U.S.C. 801(b)(7)(A). If the Judges adopt the proposed rates and terms pursuant to this provision for the 2016–2020 rate period, the adopted rates and terms shall be binding on all copyright owners of sound recordings, NPR, American Public Media, Public Radio International, and Public Radio Exchange, and up to 530 public radio stations to be named by CPB that perform sound recordings during the license period 2016–2020. Proposed Adjustments to Rates and Terms In the proposed settlement, SoundExchange and the Settling Parties request that the Judges adopt the rates and terms for public radio as a new ‘‘Subpart D’’ to part 380, 37 CFR. Under the proposal, the parties would continue the rate structure in place for public radio, while increasing the fee amount. Joint Motion to Adopt Partial Settlement at 3. The proposal also contemplates retention of largely unchanged recordkeeping and reporting terms, by which affected entities take advantage of a consolidated report of usage prepared by and submitted through the Corporation for Public Broadcasting. Id. The public may comment and object to any or all of the proposed regulations contained in this notice. Such comments and objections must be submitted no later than April 16, 2015. How To Submit Comments Interested members of the public must submit comments to only one of the following addresses. If not commenting by email or online, commenters must submit an original of their comments, five paper copies, and an electronic version on a CD. Email: crb@loc.gov; or Online: https://www.regulations.gov; or U.S. mail: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024– 0977; or Overnight service (only USPS Express Mail is acceptable): Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024–0977; or Commercial courier: Address package to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM–403, 101 Independence Avenue SE., Washington, DC 20559– E:\FR\FM\26MRP1.SGM 26MRP1 15960 Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules 6000. Deliver to: Congressional Courier Acceptance Site, 2nd Street NE. and D Street NE., Washington, DC; or Hand delivery: Library of Congress, James Madison Memorial Building, LM– 401, 101 Independence Avenue SE., Washington, DC 20559–6000. List of Subjects in 37 CFR Part 380 Copyright, Sound recordings, Webcasters. Proposed Regulations For the reasons set forth in the preamble, the Copyright Royalty Judges propose to amend 37 CFR part 380 as follows: PART 380—RATES AND TERMS FOR CERTAIN ELIGIBLE NONSUBSCRIPTION TRANSMISSIONS, NEW SUBSCRIPTION SERVICES AND THE MAKING OF EPHEMERAL REPRODUCTIONS 1. The authority citation for part 380 continues to read as follows: ■ Authority: 17 U.S.C. 112(e), 114(f), 804(b)(3). 2. Add Subpart D to part 380 to read as follows: ■ 3. ■ Subpart D—Certain Transmissions by Public Broadcasting Entities Sec. 380.30 General. 380.31 Definitions. 380.32 Royalty fees for the public performance of sound recordings and for ephemeral recordings. 380.33 Terms for making payment of royalty fees and statements of account. 380.34 Confidential Information. 380.35 Verification of royalty payments. 380.36 Verification of royalty distributions. 380.37 Unclaimed funds. Subpart D—Certain Transmissions by Public Broadcasting Entities mstockstill on DSK4VPTVN1PROD with PROPOSALS § 380.30 General. (a) Scope. This subpart establishes rates and terms of royalty payments for the public performance of sound recordings in certain digital transmissions, through Authorized Web sites, by means of Web site Performances, by certain Covered Entities as set forth in this subpart in accordance with the provisions of 17 U.S.C. 114, and the making of ephemeral recordings by Covered Entities in accordance with the provisions of 17 U.S.C. 112(e) solely as necessary to encode Sound Recordings in different formats and at different bit rates as necessary to facilitate Web site Performances, during the period January 1, 2016, through December 31, 2020. The provisions of this subpart shall VerDate Sep<11>2014 19:13 Mar 25, 2015 Jkt 235001 apply to the Covered Entities in lieu of other rates and terms applicable under 17 U.S.C. 112(e) and 114. (b) Legal compliance. Licensees relying upon the statutory licenses set forth in 17 U.S.C. 112(e) and 114 shall comply with the requirements of those sections, the rates and terms of this subpart, and any other applicable regulations. (c) Relationship to voluntary agreements. Notwithstanding the royalty rates and terms established in this subpart, the rates and terms of any license agreements entered into by Copyright Owners and Licensees shall apply in lieu of the rates and terms of this subpart to transmission within the scope of such agreements. § 380.31 Definitions. For purposes of this subpart, the following definitions shall apply: Aggregate Tuning Hours (ATH) means the total hours of programming that Covered Entities have transmitted during the relevant period to all listeners within the United States from all Covered Entities that provide audio programming consisting, in whole or in part, of Web site Performances, less the actual running time of any sound recordings for which the Covered Entity has obtained direct licenses apart from this Agreement. By way of example, if a Covered Entity transmitted one hour of programming to ten (10) simultaneous listeners, the Covered Entity’s Aggregate Tuning Hours would equal ten (10). If three (3) minutes of that hour consisted of transmission of a directly licensed recording, the Covered Entity’s Aggregate Tuning Hours would equal nine (9) hours and thirty (30) minutes. As an additional example, if one listener listened to a Covered Entity for ten (10) hours (and none of the recordings transmitted during that time was directly licensed), the Covered Entity’s Aggregate Tuning Hours would equal 10. Authorized Web site is any Web site operated by or on behalf of any Covered Entity that is accessed by Web site Users through a Uniform Resource Locator (‘‘URL’’) owned by such Covered Entity and through which Web site Performances are made by such Covered Entity. CPB is the Corporation for Public Broadcasting. Collective is the collection and distribution organization that is designated by the Copyright Royalty Judges. For the 2016–2020 license period, the Collective is SoundExchange, Inc. Copyright Owners are Sound Recording copyright owners who are PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 entitled to royalty payments made under this subpart pursuant to the statutory licenses under 17 U.S.C. 112(e) and 114(f). Covered Entities are NPR, American Public Media, Public Radio International, and Public Radio Exchange, and up to 530 Originating Public Radio Stations as named by CPB. CPB shall notify SoundExchange annually of the eligible Originating Public Radio Stations to be considered Covered Entities hereunder (subject to the numerical limitations set forth herein). The number of Originating Public Radio Stations treated hereunder as Covered Entities shall not exceed 530 for a given year without SoundExchange’s express written approval, except that CPB shall have the option to increase the number of Originating Public Radio Stations that may be considered Covered Entities as provided in § 380.32(c). Ephemeral Phonorecords are Phonorecords of all or any portion of any Sound Recordings; provided that: (1) Such Phonorecords are limited solely to those necessary to encode Sound Recordings in different formats and at different bit rates as necessary to facilitate Web site Performances covered by this subpart; (2) Such Phonorecords are made in strict conformity with the provisions set forth in 17 U.S.C. 112(e)(1)(A) through (D), and (3) The Covered Entities comply with 17 U.S.C. 112(a) and (e) and all of the terms and conditions of this Agreement. Music ATH is ATH of Web site Performances of Sound Recordings of musical works. NPR is National Public Radio, Inc. Originating Public Radio Station is a noncommercial terrestrial radio broadcast station that: (1) Is licensed as such by the Federal Communications Commission; (2) Originates programming and is not solely a repeater station; (3) Is a member or affiliate of NPR, American Public Media, Public Radio International, or Public Radio Exchange, a member of the National Federation of Community Broadcasters, or another public radio station that is qualified to receive funding from CPB pursuant to its criteria; (4) Qualifies as a ‘‘noncommercial webcaster’’ under 17 U.S.C. 114(f)(5)(E)(i); and (5) Either: (i) Offers Web site Performances only as part of the mission that entitles it to be exempt from taxation under section 501 of the Internal Revenue Code of 1986 (26 U.S.C. 501); or E:\FR\FM\26MRP1.SGM 26MRP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules (ii) In the case of a governmental entity (including a Native American Tribal governmental entity), is operated exclusively for public purposes. Performers means the independent administrators identified in 17 U.S.C. 114(g)(2)(B) and (C) and the individuals and entities identified in 17 U.S.C. 114(g)(2)(D). Person is a natural person, a corporation, a limited liability company, a partnership, a trust, a joint venture, any governmental authority or any other entity or organization. Phonorecords have the meaning set forth in 17 U.S.C. 101. Qualified Auditor is a Certified Public Accountant, or a person, who by virtue of education or experience, is appropriately qualified to perform an audit to verify royalty payments related to performances of sound recordings. Side Channel is any Internet-only program available on an Authorized Web site or an archived program on such Authorized Web site that, in either case, conforms to all applicable requirements under 17 U.S.C. 114. Sound Recording has the meaning set forth in 17 U.S.C. 101. Term is the period January 1, 2016, through December 31, 2020. Web site is a site located on the World Wide Web that can be located by a Web site User through a principal URL. Web site Performances (1) Are all public performances by means of digital audio transmissions of Sound Recordings, including the transmission of any portion of any Sound Recording, made through an Authorized Web site in accordance with all requirements of 17 U.S.C. 114, from servers used by a Covered Entity (provided that the Covered Entity controls the content of all materials transmitted by the server), or by a contractor authorized pursuant to Section 380.32(f), that consist of either: (i) The retransmission of a Covered Entity’s over-the-air terrestrial radio programming; or (ii) The digital transmission of nonsubscription Side Channels that are programmed and controlled by the Covered Entity. (2) This term does not include digital audio transmissions made by any other means. Web site Users are all those who access or receive Web site Performances or who access any Authorized Web site. § 380.32 Royalty fees for the public performance of sound recordings and for ephemeral recordings. (a) Royalty rates. The total license fee for all Web site Performances by Covered Entities during the Term, up to VerDate Sep<11>2014 19:13 Mar 25, 2015 Jkt 235001 a total Music ATH of 285,132,065 per calendar year, and Ephemeral Phonorecords made by Covered Entities solely to facilitate such Web site Performances, during the Term shall be $2,800,000 (the ‘‘License Fee’’), unless additional payments are required as described in paragraph (c) of this section. (b) Calculation of License Fee. It is understood that the License Fee includes: (1) An annual minimum fee of $500 for each Covered Entity for each year during the Term; (2) Additional usage fees for certain Covered Entities; and (3) A discount that reflects the administrative convenience to the Collective of receiving annual lump sum payments that cover a large number of separate entities, as well as the protection from bad debt that arises from being paid in advance. (c) Increase in Covered Entities. If the total number of Originating Public Radio Stations that wish to make Web site Performances in any calendar year exceeds the number of such Originating Public Radio Stations considered Covered Entities in the relevant year, and the excess Originating Public Radio Stations do not wish to pay royalties for such Web site Performances apart from this subpart, CPB may elect by written notice to the Collective to increase the number of Originating Public Radio Stations considered Covered Entities in the relevant year effective as of the date of the notice. To the extent of any such elections, CPB shall make an additional payment to the Collective for each calendar year or part thereof it elects to have an additional Originating Public Radio Station considered a Covered Entity, in the amount of $500 per Originating Public Radio Station per year. Such payment shall accompany the notice electing to have an additional Originating Public Radio Station considered a Covered Entity. (d) Ephemeral recordings. The royalty payable under 17 U.S.C. 112(e) for the making of all ephemeral recordings used by Covered Entities solely to facilitate Web site Performances for which royalties are paid pursuant to this subpart shall be included within, and constitute 5% of, the total royalties payable under 17 U.S.C. 112(e) and 114. (e) Effect of non-performance by any Covered Entity. In the event that any Covered Entity violates any of the material provisions of 17 U.S.C. 112(e) or 114 or this subpart that it is required to perform, the remedies of the Collective shall be specific to that Covered Entity only, and shall include, without limitation, termination of that PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 15961 Covered Entity’s right to be treated as a Covered Entity hereunder upon written notice to CPB. The Collective and Copyright Owners also shall have whatever rights may be available to them against that Covered Entity under applicable law. The Collective’s remedies for such a breach or failure by an individual Covered Entity shall not include termination of the rights of other Covered Entities to be treated as Covered Entities hereunder, except that if CPB fails to pay the License Fee or otherwise fails to perform any of the material provisions of this subpart, or such a breach or failure by a Covered Entity results from CPB’s inducement, and CPB does not cure such breach or failure within 30 days after receiving notice thereof from the Collective, then the Collective may terminate the right of all Covered Entities to be treated as Covered Entities hereunder upon written notice to CPB. In such a case, a prorated portion of the License Fee for the remainder Term (to the extent paid by CPB) shall, after deduction of any damages payable to the Collective by virtue of the breach or failure, be credited to statutory royalty obligations of Covered Entities to the Collective for the Term as specified by CPB. (f) Use of contractors. The right to rely on this subpart is limited to Covered Entities, except that a Covered Entity may employ the services of a third person to provide the technical services and equipment necessary to deliver Web site Performances on behalf of such Covered Entity, but only through an Authorized Web site. Any agreement between a Covered Entity and any third person for such services shall: (1) Obligate such third person to provide all such services in accordance with all applicable provisions of the statutory licenses and this subpart, (2) Specify that such third person shall have no right to make Web site Performances or any other performances or Phonorecords on its own behalf or on behalf of any person or entity other than a Covered Entity through the Covered Entity’s Authorized Web site by virtue of its services for the Covered Entity, including in the case of Phonorecords, pre-encoding or otherwise establishing a library of Sound Recordings that it offers to a Covered Entity or others for purposes of making performances, but instead must obtain all necessary licenses from the Collective, the copyright owner or another duly authorized person, as the case may be; (3) Specify that such third person shall have no right to grant any sublicenses under the statutory licenses; and E:\FR\FM\26MRP1.SGM 26MRP1 15962 Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules (4) Provide that the Collective is an intended third-party beneficiary of all such obligations with the right to enforce a breach thereof against such third person. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 380.33 Terms for making payment of royalty fees and statements of account. (a) Payment to the Collective. CPB shall pay the License Fee to the Collective in five equal installments of $560,000 each, which shall be due December 31, 2015 and annually thereafter through December 31, 2019. (b) Designation of the Collective. (1) Until such time as a new designation is made, SoundExchange, Inc., is designated as the Collective to receive statements of account and royalty payments for Covered Entities under this subpart and to distribute such royalty payments to each Copyright Owner and Performer, or their designated agents, entitled to receive royalties under 17 U.S.C. 112(e) or 114(g). (2) If SoundExchange, Inc. should dissolve or cease to be governed by a board consisting of equal numbers of representatives of Copyright Owners and Performers, then it shall be replaced by a successor Collective upon the fulfillment of the requirements set forth in paragraph (b)(2)(i) of this section. (i) By a majority vote of the nine Copyright Owner representatives and the nine Performer representatives on the SoundExchange board as of the last day preceding the condition precedent in this paragraph (b)(2) of this section, such representatives shall file a petition with the Copyright Royalty Judges designating a successor to collect and distribute royalty payments to Copyright Owners and Performers entitled to receive royalties under 17 U.S.C. 112(e) or 114(g) that have themselves authorized the Collective. (ii) The Copyright Royalty Judges shall publish in the Federal Register within 30 days of receipt of a petition filed under paragraph (b)(2)(i) of this section an order designating the Collective named in such petition. (c) Reporting. CPB and Covered Entities shall submit reports of use and other information concerning Web site Performances as agreed upon with the Collective. (d) Late payments and statements of account. A Licensee shall pay a late fee of 1.5% per month, or the highest lawful rate, whichever is lower, for any payment and/or statement of account received by the Collective after the due date. Late fees shall accrue from the due date until payment and the related statement of account are received by the Collective. VerDate Sep<11>2014 19:13 Mar 25, 2015 Jkt 235001 (e) Distribution of royalties. (1) The Collective shall promptly distribute royalties received from CPB to Copyright Owners and Performers, or their designated agents, who are entitled to such royalties. The Collective shall only be responsible for making distributions to those Copyright Owners, Performers, or their designated agents who provide the Collective with such information as is necessary to identify the correct recipient. The Collective shall distribute royalties on a basis that values all Web site Performances by Covered Entities equally based upon the reporting information provided by CPB/NPR. (2) If the Collective is unable to locate a Copyright Owner or Performer entitled to a distribution of royalties under paragraph (e)(1) of the section within 3 years from the date of payment by a Licensee, such royalties shall be handled in accordance with § 380.37. (f) Retention of records. Books and records of CPB and Covered Entities and of the Collective relating to payments of and distributions of royalties shall be kept for a period of not less than the prior 3 calendar years. § 380.34 Confidential Information. (a) Definition. For purposes of this subpart, ‘‘Confidential Information’’ shall include the statements of account and any information contained therein, including the amount of royalty payments, and any information pertaining to the statements of account reasonably designated as confidential by the Licensee submitting the statement. (b) Exclusion. Confidential Information shall not include information or documents that at the time of delivery to the Collective are public knowledge, or documents or information that become publicly known through no fault of the Collective or are known by the Collective when disclosed by CPB/NPR. The party claiming the benefit of this provision shall have the burden of proving that the disclosed information was public knowledge. (c) Use of Confidential Information. In no event shall the Collective use any Confidential Information for any purpose other than royalty collection and distribution and activities related directly thereto and enforcement of the terms of the statutory licenses. (d) Disclosure of Confidential Information. Access to Confidential Information shall be limited to: (1) Those employees, agents, attorneys, consultants and independent contractors of the Collective, subject to an appropriate confidentiality agreement, who are engaged in the PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 collection and distribution of royalty payments hereunder and activities related thereto, for the purpose of performing such duties during the ordinary course of their work and who require access to the Confidential Information; (2) An independent and Qualified Auditor, subject to an appropriate confidentiality agreement, who is authorized to act on behalf of the Collective with respect to verification of a Licensee’s statement of account pursuant to § 380.35 or on behalf of a Copyright Owner or Performer with respect to the verification of royalty distributions pursuant to § 380.36, (3) Copyright Owners and Performers, including their designated agents, whose works have been used under the statutory licenses set forth in 17 U.S.C. 112(e) and 114 by the Licensee whose Confidential Information is being supplied, subject to an appropriate confidentiality agreement, and including those employees, agents, attorneys, consultants and independent contractors of such Copyright Owners and Performers and their designated agents, subject to an appropriate confidentiality agreement, for the purpose of performing their duties during the ordinary course of their work and who require access to the Confidential Information; and (4) In connection with future proceedings under 17 U.S.C. 112(e) and 114 before the Copyright Royalty Judges, and under an appropriate protective order, attorneys, consultants and other authorized agents of the parties to the proceedings or the courts, subject to the provisions of any relevant agreements restricting the activities of CPB, Covered Entities or the Collective in such proceedings. (e) Safeguarding of Confidential Information. The Collective and any person identified in paragraph (d) of this section shall implement procedures to safeguard against unauthorized access to or dissemination of any Confidential Information using a reasonable standard of care, but no less than the same degree of security used to protect Confidential Information or similarly sensitive information belonging to the Collective or person. § 380.35 Verification of royalty payments. (a) General. This section prescribes procedures by which the Collective may verify the royalty payments made by CPB. (b) Frequency of verification. The Collective may conduct a single audit of any Covered Entities, upon reasonable notice and during reasonable business hours, during any given calendar year, E:\FR\FM\26MRP1.SGM 26MRP1 Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules for any or all of the prior 3 calendar years, but no calendar year shall be subject to audit more than once. (c) Notice of intent to audit. The Collective must file with the Copyright Royalty Judges a notice of intent to audit CPB and Covered Entities, which shall, within 30 days of the filing of the notice, publish in the Federal Register a notice announcing such filing. The notification of intent to audit shall be served at the same time on CPB. Any such audit shall be conducted by an independent and Qualified Auditor identified in the notice, and shall be binding on all parties. (d) Acquisition and retention of report. CPB and Covered Entities shall use commercially reasonable efforts to obtain or to provide access to any relevant books and records maintained by third parties for the purpose of the audit. The Collective shall retain the report of the verification for a period of not less than 3 years. (e) Consultation. Before rendering a written report to the Collective, except where the auditor has a reasonable basis to suspect fraud and disclosure would, in the reasonable opinion of the auditor, prejudice the investigation of such suspected fraud, the auditor shall review the tentative written findings of the audit with the appropriate agent or employee of CPB in order to remedy any factual errors and clarify any issues relating to the audit; provided that an appropriate agent or employee of CPB reasonably cooperates with the auditor to remedy promptly any factual errors or clarify any issues raised by the audit. (f) Costs of the verification procedure. The Collective shall pay the cost of the verification procedure, unless it is finally determined that there was an underpayment of 10% or more, in which case CPB shall, in addition to paying the amount of any underpayment, bear the reasonable costs of the verification procedure. mstockstill on DSK4VPTVN1PROD with PROPOSALS § 380.36 Verification of royalty distributions. (a) General. This section prescribes procedures by which any Copyright Owner or Performer may verify the royalty distributions made by the Collective; provided, however, that nothing contained in this section shall apply to situations where a Copyright Owner or Performer and the Collective have agreed as to proper verification methods. (b) Frequency of verification. A Copyright Owner or Performer may conduct a single audit of the Collective upon reasonable notice and during reasonable business hours, during any given calendar year, for any or all of the VerDate Sep<11>2014 20:24 Mar 25, 2015 Jkt 235001 prior 3 calendar years, but no calendar year shall be subject to audit more than once. (c) Notice of intent to audit. A Copyright Owner or Performer must file with the Copyright Royalty Judges a notice of intent to audit the Collective, which shall, within 30 days of the filing of the notice, publish in the Federal Register a notice announcing such filing. The notification of intent to audit shall be served at the same time on the Collective. Any audit shall be conducted by an independent and Qualified Auditor identified in the notice, and shall be binding on all Copyright Owners and Performers. (d) Acquisition and retention of report. The Collective shall use commercially reasonable efforts to obtain or to provide access to any relevant books and records maintained by third parties for the purpose of the audit. The Copyright Owner or Performer requesting the verification procedure shall retain the report of the verification for a period of not less than 3 years. (e) Consultation. Before rendering a written report to a Copyright Owner or Performer, except where the auditor has a reasonable basis to suspect fraud and disclosure would, in the reasonable opinion of the auditor, prejudice the investigation of such suspected fraud, the auditor shall review the tentative written findings of the audit with the appropriate agent or employee of the Collective in order to remedy any factual errors and clarify any issues relating to the audit; Provided that the appropriate agent or employee of the Collective reasonably cooperates with the auditor to remedy promptly any factual errors or clarify any issues raised by the audit. (f) Costs of the verification procedure. The Copyright Owner or Performer requesting the verification procedure shall pay the cost of the procedure, unless it is finally determined that there was an underpayment of 10% or more, in which case the Collective shall, in addition to paying the amount of any underpayment, bear the reasonable costs of the verification procedure. § 380.37 Unclaimed funds. If the Collective is unable to identify or locate a Copyright Owner or Performer who is entitled to receive a royalty distribution under this subpart, the Collective shall retain the required payment in a segregated trust account for a period of 3 years from the date of distribution. No claim to such distribution shall be valid after the expiration of the 3-year period. After expiration of this period, the Collective PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 15963 may apply the unclaimed funds to offset any costs deductible under 17 U.S.C. 114(g)(3). The foregoing shall apply notwithstanding the common law or statutes of any State. Dated: March 20, 2015. Jesse M. Feder, Copyright Royalty Judge. [FR Doc. 2015–06896 Filed 3–25–15; 8:45 am] BILLING CODE 1410–72–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R06–OAR–2014–0270; FRL–9925–12– Region 6] Approval and Promulgation of Air Quality Implementation Plans; State of New Mexico; Infrastructure SIP Requirements for the 2008 Ozone and 2010 Nitrogen Dioxide National Ambient Air Quality Standards; Interstate Transport of Fine Particulate Matter Air Pollution Affecting Visibility Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve elements of a State Implementation Plan (SIP) submission from the State of New Mexico addressing the applicable requirements of Clean Air Act (CAA) section 110 for the 2008 National Ambient Air Quality Standards (NAAQS) for Ozone (O3) and the 2010 NAAQS for Nitrogen Dioxide (NO2), both of which require that each state adopt and submit a SIP to support implementation, maintenance, and enforcement of each new or revised NAAQS promulgated by EPA. These SIPs are commonly referred to as ‘‘infrastructure’’ SIPs. The infrastructure requirements are designed to ensure that the structural components of each state’s air quality management program are adequate to meet the state’s responsibilities under the CAA. EPA is also proposing to find that the State of New Mexico meets the 2006 fine particulate matter (PM2.5) NAAQS requirement pertaining to interstate transport of air pollution and visibility protection. DATES: Written comments must be received on or before April 27, 2015. ADDRESSES: Submit your comments, identified by Docket ID Number EPA– R06–OAR–2014–0270, by one of the following methods: • www.regulations.gov. Follow the online instructions. SUMMARY: E:\FR\FM\26MRP1.SGM 26MRP1

Agencies

[Federal Register Volume 80, Number 58 (Thursday, March 26, 2015)]
[Proposed Rules]
[Pages 15958-15963]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-06896]

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LIBRARY OF CONGRESS

37 CFR Part 380

[Docket No. 2014-CRB-0001-WR (2016-2020) (Web IV)]

Digital Performance Right in Sound Recordings and Ephemeral
Recordings

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Proposed rule.

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

SUMMARY: The Copyright Royalty Judges are publishing for comment
proposed regulations governing the rates and terms for the digital
performances of sound recordings by certain public radio stations and
for the making of ephemeral recordings necessary to facilitate those
transmissions for the period commencing January 1, 2016, and ending on
December 31, 2020.

DATES: Comments and objections, if any, are due no later than April 16,
2015.

ADDRESSES: The proposed rule is posted on the agency's Web site
(www.loc.gov/crb). Submit electronic comments online at https://www.regulations.gov or via email to crb@loc.gov. Those who choose not
to submit comments electronically should see How to Submit Comments in
the Supplementary Information section below for physical addresses and
further instructions.

FOR FURTHER INFORMATION CONTACT: Kimberly Whittle, Attorney Advisor, by
telephone at (202) 707-7658, or by email at crb@loc.gov.

SUPPLEMENTARY INFORMATION:

Background

On February 24, 2015, the Copyright Royalty Judges (Judges)
received a joint

[[Page 15959]]

motion from SoundExchange, Inc., National Public Radio, Inc., and the
Corporation for Public Broadcasting to adopt a partial settlement of
their interests and those of American Public Media, Public Radio
International, Public Radio Exchange, and other unnamed public radio
stations (together, the Settling Parties) regarding Web IV rates and
terms for 2016-2020.\1\ Joint Motion to Adopt Partial Settlement,
Docket No. 2014-CRB-0001-WR (2016-2020). Their interests concern the
rule setting minimum copyright royalty fees and terms that the Judges
will establish for compulsory copyright licenses for certain internet
transmissions of sound recordings by public radio stations for the
period from January 1, 2016, through December 31, 2020. SoundExchange,
Inc. represents sound recording copyright owners and performers. The
Settling Parties are users of the copyrighted material including public
radio stations. The Judges hereby publish the proposed settlement and
request comments from the public.
---------------------------------------------------------------------------

\1\ Web IV is short for Webcasting IV. This proceeding is the
fourth since Congress enacted the compulsory sound recording
performance license for webcasting.
---------------------------------------------------------------------------

Section 114 of the Copyright Act, title 17 of the United States
Code, provides a statutory license that allows for the public
performance of sound recordings by means of a digital audio
transmission by, among others, eligible nonsubscription transmission
services. 17 U.S.C. 114(f). For purposes of the section 114 license, an
``eligible nonsubscription transmission'' is a noninteractive digital
audio transmission that does not require a subscription for receiving
the transmission. The transmission must also be made as part of a
service that provides audio programming consisting in whole or in part
of performances of sound recordings the purpose of which is to provide
audio or other entertainment programming, but not to sell, advertise,
or promote particular goods or services. See 17 U.S.C. 114(j)(6).
Services using the section 114 license may need to make one or more
temporary or ``ephemeral'' copies of a sound recording in order to
facilitate the transmission of that recording. The section 112
statutory license allows for the making of the necessary ephemeral
reproductions. 17 U.S.C. 112(e).
Chapter 8 of the Copyright Act requires the Judges to conduct
proceedings every five years to determine the rates and terms for the
sections 114 and 112 statutory licenses. 17 U.S.C. 801(b)(1),
804(b)(3)(A). The current proceeding commenced in January 2014 for
rates and terms that will become effective on January 1, 2016, and end
on December 31, 2020. Pursuant to section 804(b)(3)(A), the Judges
published in the Federal Register a notice commencing the proceeding
and requesting that interested parties submit their petitions to
participate. 79 FR 412 (January 3, 2014). The following parties
submitted Petitions to Participate: 8tracks, Inc.; AccuRadio, LLC;
Amazon.com, Inc.; Apple Inc; Beats Music, LLC; Clear Channel; CMN,
Inc.; College Broadcasters, Inc. (CBI); CustomChannels.net, LLC;
Digital Media Association (DiMA); Digitally Imported, Inc.; Educational
Media Foundation; Feed Media, Inc.; Geo Music Group; Harvard Radio
Broadcasting Inc. (WHRB); idobi Network; Intercollegiate Broadcasting
System, Inc. (IBS); Music Reports, Inc.; National Association of
Broadcasters (NAB); National Music Publishers Association (NMPA);
National Public Radio (NPR); National Religious Broadcasters
Noncommercial Music License Committee (NRBNMLC); Pandora Media Inc.;
Rhapsody International, Inc.; Sirius XM Radio Inc.; SomaFM.com LLC;
SoundExchange, Inc. (SX); Spotify USA Inc.; and Triton.\2\
---------------------------------------------------------------------------

\2\ The following ten parties have withdrawn their Petitions to
Participate: 8tracks, Inc.; Amazon.com, Inc.; CMN, Inc.;
CustomChannels.net, LLC; Digitally Imported, Inc.; Feed Media, Inc.;
idobi Network; Rhapsody International, Inc.; SomaFM.com LLC; and
Spotify USA Inc. Three parties, Music Reports, Inc., NMPA, and
Triton Digital, Inc., have been dismissed from the proceeding.
---------------------------------------------------------------------------

The Judges set the timetable for the three-month negotiation period
for February 21, 2014, through May 22, 2014. See 17 U.S.C. 803(b)(3).
The Judges set December 22, 2014, as the deadline by which participants
were to submit amended written direct statements. On February 24, 2015,
SoundExchange and the Settling Parties submitted to the Judges a joint
motion to adopt a partial settlement of their interests in the
proceeding. The parties requested that the Judges make their decision
on the motion expeditiously, as the hearings in this rate proceeding
are scheduled to commence on April 27, 2015.

Statutory Timing of Adoption of Rates and Terms

Section 801(b)(7)(A) allows for the adoption of rates and terms
negotiated by ``some or all of the participants in a proceeding at any
time during the proceeding'' provided the parties submit the negotiated
rates and terms to the Judges for approval. That provision directs the
Judges to provide those who would be bound by the negotiated rates and
terms an opportunity to comment on the agreement. Unless a participant
in a proceeding objects and the Judges conclude that the agreement does
not provide a reasonable basis for setting statutory rates or terms,
the Judges adopt the negotiated rates and terms. 17 U.S.C.
801(b)(7)(A).
If the Judges adopt the proposed rates and terms pursuant to this
provision for the 2016-2020 rate period, the adopted rates and terms
shall be binding on all copyright owners of sound recordings, NPR,
American Public Media, Public Radio International, and Public Radio
Exchange, and up to 530 public radio stations to be named by CPB that
perform sound recordings during the license period 2016-2020.

Proposed Adjustments to Rates and Terms

In the proposed settlement, SoundExchange and the Settling Parties
request that the Judges adopt the rates and terms for public radio as a
new ``Subpart D'' to part 380, 37 CFR. Under the proposal, the parties
would continue the rate structure in place for public radio, while
increasing the fee amount. Joint Motion to Adopt Partial Settlement at
3. The proposal also contemplates retention of largely unchanged
recordkeeping and reporting terms, by which affected entities take
advantage of a consolidated report of usage prepared by and submitted
through the Corporation for Public Broadcasting. Id.
The public may comment and object to any or all of the proposed
regulations contained in this notice. Such comments and objections must
be submitted no later than April 16, 2015.

How To Submit Comments

Interested members of the public must submit comments to only one
of the following addresses. If not commenting by email or online,
commenters must submit an original of their comments, five paper
copies, and an electronic version on a CD.
Email: crb@loc.gov; or
Online: https://www.regulations.gov; or
U.S. mail: Copyright Royalty Board, P.O. Box 70977, Washington, DC
20024-0977; or
Overnight service (only USPS Express Mail is acceptable): Copyright
Royalty Board, P.O. Box 70977, Washington, DC 20024-0977; or
Commercial courier: Address package to: Copyright Royalty Board,
Library of Congress, James Madison Memorial Building, LM-403, 101
Independence Avenue SE., Washington, DC 20559-

[[Page 15960]]

6000. Deliver to: Congressional Courier Acceptance Site, 2nd Street NE.
and D Street NE., Washington, DC; or
Hand delivery: Library of Congress, James Madison Memorial
Building, LM-401, 101 Independence Avenue SE., Washington, DC 20559-
6000.

List of Subjects in 37 CFR Part 380

Proposed Regulations

For the reasons set forth in the preamble, the Copyright Royalty
Judges propose to amend 37 CFR part 380 as follows:

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

0
1. The authority citation for part 380 continues to read as follows:

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

0
2. Add Subpart D to part 380 to read as follows:
0
3.
Subpart D--Certain Transmissions by Public Broadcasting Entities
Sec.
380.30 General.
380.31 Definitions.
380.32 Royalty fees for the public performance of sound recordings
and for ephemeral recordings.
380.33 Terms for making payment of royalty fees and statements of
account.
380.34 Confidential Information.
380.35 Verification of royalty payments.
380.36 Verification of royalty distributions.
380.37 Unclaimed funds.

Subpart D--Certain Transmissions by Public Broadcasting Entities

Sec. 380.30 General.

(a) Scope. This subpart establishes rates and terms of royalty
payments for the public performance of sound recordings in certain
digital transmissions, through Authorized Web sites, by means of Web
site Performances, by certain Covered Entities as set forth in this
subpart in accordance with the provisions of 17 U.S.C. 114, and the
making of ephemeral recordings by Covered Entities in accordance with
the provisions of 17 U.S.C. 112(e) solely as necessary to encode Sound
Recordings in different formats and at different bit rates as necessary
to facilitate Web site Performances, during the period January 1, 2016,
through December 31, 2020. The provisions of this subpart shall apply
to the Covered Entities in lieu of other rates and terms applicable
under 17 U.S.C. 112(e) and 114.
(b) Legal compliance. Licensees relying upon the statutory licenses
set forth in 17 U.S.C. 112(e) and 114 shall comply with the
requirements of those sections, the rates and terms of this subpart,
and any other applicable regulations.
(c) Relationship to voluntary agreements. Notwithstanding the
royalty rates and terms established in this subpart, the rates and
terms of any license agreements entered into by Copyright Owners and
Licensees shall apply in lieu of the rates and terms of this subpart to
transmission within the scope of such agreements.

Sec. 380.31 Definitions.

For purposes of this subpart, the following definitions shall
apply:
Aggregate Tuning Hours (ATH) means the total hours of programming
that Covered Entities have transmitted during the relevant period to
all listeners within the United States from all Covered Entities that
provide audio programming consisting, in whole or in part, of Web site
Performances, less the actual running time of any sound recordings for
which the Covered Entity has obtained direct licenses apart from this
Agreement. By way of example, if a Covered Entity transmitted one hour
of programming to ten (10) simultaneous listeners, the Covered Entity's
Aggregate Tuning Hours would equal ten (10). If three (3) minutes of
that hour consisted of transmission of a directly licensed recording,
the Covered Entity's Aggregate Tuning Hours would equal nine (9) hours
and thirty (30) minutes. As an additional example, if one listener
listened to a Covered Entity for ten (10) hours (and none of the
recordings transmitted during that time was directly licensed), the
Covered Entity's Aggregate Tuning Hours would equal 10.
Authorized Web site is any Web site operated by or on behalf of any
Covered Entity that is accessed by Web site Users through a Uniform
Resource Locator (``URL'') owned by such Covered Entity and through
which Web site Performances are made by such Covered Entity.
CPB is the Corporation for Public Broadcasting.
Collective is the collection and distribution organization that is
designated by the Copyright Royalty Judges. For the 2016-2020 license
period, the Collective is SoundExchange, Inc.
Copyright Owners are Sound Recording copyright owners who are
entitled to royalty payments made under this subpart pursuant to the
statutory licenses under 17 U.S.C. 112(e) and 114(f).
Covered Entities are NPR, American Public Media, Public Radio
International, and Public Radio Exchange, and up to 530 Originating
Public Radio Stations as named by CPB. CPB shall notify SoundExchange
annually of the eligible Originating Public Radio Stations to be
considered Covered Entities hereunder (subject to the numerical
limitations set forth herein). The number of Originating Public Radio
Stations treated hereunder as Covered Entities shall not exceed 530 for
a given year without SoundExchange's express written approval, except
that CPB shall have the option to increase the number of Originating
Public Radio Stations that may be considered Covered Entities as
provided in Sec. 380.32(c).
Ephemeral Phonorecords are Phonorecords of all or any portion of
any Sound Recordings; provided that:
(1) Such Phonorecords are limited solely to those necessary to
encode Sound Recordings in different formats and at different bit rates
as necessary to facilitate Web site Performances covered by this
subpart;
(2) Such Phonorecords are made in strict conformity with the
provisions set forth in 17 U.S.C. 112(e)(1)(A) through (D), and
(3) The Covered Entities comply with 17 U.S.C. 112(a) and (e) and
all of the terms and conditions of this Agreement.
Music ATH is ATH of Web site Performances of Sound Recordings of
musical works.
NPR is National Public Radio, Inc.
Originating Public Radio Station is a noncommercial terrestrial
radio broadcast station that:
(1) Is licensed as such by the Federal Communications Commission;
(2) Originates programming and is not solely a repeater station;
(3) Is a member or affiliate of NPR, American Public Media, Public
Radio International, or Public Radio Exchange, a member of the National
Federation of Community Broadcasters, or another public radio station
that is qualified to receive funding from CPB pursuant to its criteria;
(4) Qualifies as a ``noncommercial webcaster'' under 17 U.S.C.
114(f)(5)(E)(i); and
(5) Either:
(i) Offers Web site Performances only as part of the mission that
entitles it to be exempt from taxation under section 501 of the
Internal Revenue Code of 1986 (26 U.S.C. 501); or

[[Page 15961]]

(ii) In the case of a governmental entity (including a Native
American Tribal governmental entity), is operated exclusively for
public purposes.
Performers means the independent administrators identified in 17
U.S.C. 114(g)(2)(B) and (C) and the individuals and entities identified
in 17 U.S.C. 114(g)(2)(D).
Person is a natural person, a corporation, a limited liability
company, a partnership, a trust, a joint venture, any governmental
authority or any other entity or organization.
Phonorecords have the meaning set forth in 17 U.S.C. 101.
Qualified Auditor is a Certified Public Accountant, or a person,
who by virtue of education or experience, is appropriately qualified to
perform an audit to verify royalty payments related to performances of
sound recordings.
Side Channel is any Internet-only program available on an
Authorized Web site or an archived program on such Authorized Web site
that, in either case, conforms to all applicable requirements under 17
U.S.C. 114.
Sound Recording has the meaning set forth in 17 U.S.C. 101.
Term is the period January 1, 2016, through December 31, 2020.
Web site is a site located on the World Wide Web that can be
located by a Web site User through a principal URL.
Web site Performances (1) Are all public performances by means of
digital audio transmissions of Sound Recordings, including the
transmission of any portion of any Sound Recording, made through an
Authorized Web site in accordance with all requirements of 17 U.S.C.
114, from servers used by a Covered Entity (provided that the Covered
Entity controls the content of all materials transmitted by the
server), or by a contractor authorized pursuant to Section 380.32(f),
that consist of either:
(i) The retransmission of a Covered Entity's over-the-air
terrestrial radio programming; or
(ii) The digital transmission of nonsubscription Side Channels that
are programmed and controlled by the Covered Entity.
(2) This term does not include digital audio transmissions made by
any other means.
Web site Users are all those who access or receive Web site
Performances or who access any Authorized Web site.

Sec. 380.32 Royalty fees for the public performance of sound
recordings and for ephemeral recordings.

(a) Royalty rates. The total license fee for all Web site
Performances by Covered Entities during the Term, up to a total Music
ATH of 285,132,065 per calendar year, and Ephemeral Phonorecords made
by Covered Entities solely to facilitate such Web site Performances,
during the Term shall be $2,800,000 (the ``License Fee''), unless
additional payments are required as described in paragraph (c) of this
section.
(b) Calculation of License Fee. It is understood that the License
Fee includes:
(1) An annual minimum fee of $500 for each Covered Entity for each
year during the Term;
(2) Additional usage fees for certain Covered Entities; and
(3) A discount that reflects the administrative convenience to the
Collective of receiving annual lump sum payments that cover a large
number of separate entities, as well as the protection from bad debt
that arises from being paid in advance.
(c) Increase in Covered Entities. If the total number of
Originating Public Radio Stations that wish to make Web site
Performances in any calendar year exceeds the number of such
Originating Public Radio Stations considered Covered Entities in the
relevant year, and the excess Originating Public Radio Stations do not
wish to pay royalties for such Web site Performances apart from this
subpart, CPB may elect by written notice to the Collective to increase
the number of Originating Public Radio Stations considered Covered
Entities in the relevant year effective as of the date of the notice.
To the extent of any such elections, CPB shall make an additional
payment to the Collective for each calendar year or part thereof it
elects to have an additional Originating Public Radio Station
considered a Covered Entity, in the amount of $500 per Originating
Public Radio Station per year. Such payment shall accompany the notice
electing to have an additional Originating Public Radio Station
considered a Covered Entity.
(d) Ephemeral recordings. The royalty payable under 17 U.S.C.
112(e) for the making of all ephemeral recordings used by Covered
Entities solely to facilitate Web site Performances for which royalties
are paid pursuant to this subpart shall be included within, and
constitute 5% of, the total royalties payable under 17 U.S.C. 112(e)
and 114.
(e) Effect of non-performance by any Covered Entity. In the event
that any Covered Entity violates any of the material provisions of 17
U.S.C. 112(e) or 114 or this subpart that it is required to perform,
the remedies of the Collective shall be specific to that Covered Entity
only, and shall include, without limitation, termination of that
Covered Entity's right to be treated as a Covered Entity hereunder upon
written notice to CPB. The Collective and Copyright Owners also shall
have whatever rights may be available to them against that Covered
Entity under applicable law. The Collective's remedies for such a
breach or failure by an individual Covered Entity shall not include
termination of the rights of other Covered Entities to be treated as
Covered Entities hereunder, except that if CPB fails to pay the License
Fee or otherwise fails to perform any of the material provisions of
this subpart, or such a breach or failure by a Covered Entity results
from CPB's inducement, and CPB does not cure such breach or failure
within 30 days after receiving notice thereof from the Collective, then
the Collective may terminate the right of all Covered Entities to be
treated as Covered Entities hereunder upon written notice to CPB. In
such a case, a prorated portion of the License Fee for the remainder
Term (to the extent paid by CPB) shall, after deduction of any damages
payable to the Collective by virtue of the breach or failure, be
credited to statutory royalty obligations of Covered Entities to the
Collective for the Term as specified by CPB.
(f) Use of contractors. The right to rely on this subpart is
limited to Covered Entities, except that a Covered Entity may employ
the services of a third person to provide the technical services and
equipment necessary to deliver Web site Performances on behalf of such
Covered Entity, but only through an Authorized Web site. Any agreement
between a Covered Entity and any third person for such services shall:
(1) Obligate such third person to provide all such services in
accordance with all applicable provisions of the statutory licenses and
this subpart,
(2) Specify that such third person shall have no right to make Web
site Performances or any other performances or Phonorecords on its own
behalf or on behalf of any person or entity other than a Covered Entity
through the Covered Entity's Authorized Web site by virtue of its
services for the Covered Entity, including in the case of Phonorecords,
pre-encoding or otherwise establishing a library of Sound Recordings
that it offers to a Covered Entity or others for purposes of making
performances, but instead must obtain all necessary licenses from the
Collective, the copyright owner or another duly authorized person, as
the case may be;
(3) Specify that such third person shall have no right to grant any
sublicenses under the statutory licenses; and

[[Page 15962]]

(4) Provide that the Collective is an intended third-party
beneficiary of all such obligations with the right to enforce a breach
thereof against such third person.

Sec. 380.33 Terms for making payment of royalty fees and statements
of account.

(a) Payment to the Collective. CPB shall pay the License Fee to the
Collective in five equal installments of $560,000 each, which shall be
due December 31, 2015 and annually thereafter through December 31,
2019.
(b) Designation of the Collective. (1) Until such time as a new
designation is made, SoundExchange, Inc., is designated as the
Collective to receive statements of account and royalty payments for
Covered Entities under this subpart and to distribute such royalty
payments to each Copyright Owner and Performer, or their designated
agents, entitled to receive royalties under 17 U.S.C. 112(e) or 114(g).
(2) If SoundExchange, Inc. should dissolve or cease to be governed
by a board consisting of equal numbers of representatives of Copyright
Owners and Performers, then it shall be replaced by a successor
Collective upon the fulfillment of the requirements set forth in
paragraph (b)(2)(i) of this section.
(i) By a majority vote of the nine Copyright Owner representatives
and the nine Performer representatives on the SoundExchange board as of
the last day preceding the condition precedent in this paragraph (b)(2)
of this section, such representatives shall file a petition with the
Copyright Royalty Judges designating a successor to collect and
distribute royalty payments to Copyright Owners and Performers entitled
to receive royalties under 17 U.S.C. 112(e) or 114(g) that have
themselves authorized the Collective.
(ii) The Copyright Royalty Judges shall publish in the Federal
Register within 30 days of receipt of a petition filed under paragraph
(b)(2)(i) of this section an order designating the Collective named in
such petition.
(c) Reporting. CPB and Covered Entities shall submit reports of use
and other information concerning Web site Performances as agreed upon
with the Collective.
(d) Late payments and statements of account. A Licensee shall pay a
late fee of 1.5% per month, or the highest lawful rate, whichever is
lower, for any payment and/or statement of account received by the
Collective after the due date. Late fees shall accrue from the due date
until payment and the related statement of account are received by the
Collective.
(e) Distribution of royalties. (1) The Collective shall promptly
distribute royalties received from CPB to Copyright Owners and
Performers, or their designated agents, who are entitled to such
royalties. The Collective shall only be responsible for making
distributions to those Copyright Owners, Performers, or their
designated agents who provide the Collective with such information as
is necessary to identify the correct recipient. The Collective shall
distribute royalties on a basis that values all Web site Performances
by Covered Entities equally based upon the reporting information
provided by CPB/NPR.
(2) If the Collective is unable to locate a Copyright Owner or
Performer entitled to a distribution of royalties under paragraph
(e)(1) of the section within 3 years from the date of payment by a
Licensee, such royalties shall be handled in accordance with Sec.
380.37.
(f) Retention of records. Books and records of CPB and Covered
Entities and of the Collective relating to payments of and
distributions of royalties shall be kept for a period of not less than
the prior 3 calendar years.

Sec. 380.34 Confidential Information.

(a) Definition. For purposes of this subpart, ``Confidential
Information'' shall include the statements of account and any
information contained therein, including the amount of royalty
payments, and any information pertaining to the statements of account
reasonably designated as confidential by the Licensee submitting the
statement.
(b) Exclusion. Confidential Information shall not include
information or documents that at the time of delivery to the Collective
are public knowledge, or documents or information that become publicly
known through no fault of the Collective or are known by the Collective
when disclosed by CPB/NPR. The party claiming the benefit of this
provision shall have the burden of proving that the disclosed
information was public knowledge.
(c) Use of Confidential Information. In no event shall the
Collective use any Confidential Information for any purpose other than
royalty collection and distribution and activities related directly
thereto and enforcement of the terms of the statutory licenses.
(d) Disclosure of Confidential Information. Access to Confidential
Information shall be limited to:
(1) Those employees, agents, attorneys, consultants and independent
contractors of the Collective, subject to an appropriate
confidentiality agreement, who are engaged in the collection and
distribution of royalty payments hereunder and activities related
thereto, for the purpose of performing such duties during the ordinary
course of their work and who require access to the Confidential
Information;
(2) An independent and Qualified Auditor, subject to an appropriate
confidentiality agreement, who is authorized to act on behalf of the
Collective with respect to verification of a Licensee's statement of
account pursuant to Sec. 380.35 or on behalf of a Copyright Owner or
Performer with respect to the verification of royalty distributions
pursuant to Sec. 380.36,
(3) Copyright Owners and Performers, including their designated
agents, whose works have been used under the statutory licenses set
forth in 17 U.S.C. 112(e) and 114 by the Licensee whose Confidential
Information is being supplied, subject to an appropriate
confidentiality agreement, and including those employees, agents,
attorneys, consultants and independent contractors of such Copyright
Owners and Performers and their designated agents, subject to an
appropriate confidentiality agreement, for the purpose of performing
their duties during the ordinary course of their work and who require
access to the Confidential Information; and
(4) In connection with future proceedings under 17 U.S.C. 112(e)
and 114 before the Copyright Royalty Judges, and under an appropriate
protective order, attorneys, consultants and other authorized agents of
the parties to the proceedings or the courts, subject to the provisions
of any relevant agreements restricting the activities of CPB, Covered
Entities or the Collective in such proceedings.
(e) Safeguarding of Confidential Information. The Collective and
any person identified in paragraph (d) of this section shall implement
procedures to safeguard against unauthorized access to or dissemination
of any Confidential Information using a reasonable standard of care,
but no less than the same degree of security used to protect
Confidential Information or similarly sensitive information belonging
to the Collective or person.

Sec. 380.35 Verification of royalty payments.

(a) General. This section prescribes procedures by which the
Collective may verify the royalty payments made by CPB.
(b) Frequency of verification. The Collective may conduct a single
audit of any Covered Entities, upon reasonable notice and during
reasonable business hours, during any given calendar year,

[[Page 15963]]

for any or all of the prior 3 calendar years, but no calendar year
shall be subject to audit more than once.
(c) Notice of intent to audit. The Collective must file with the
Copyright Royalty Judges a notice of intent to audit CPB and Covered
Entities, which shall, within 30 days of the filing of the notice,
publish in the Federal Register a notice announcing such filing. The
notification of intent to audit shall be served at the same time on
CPB. Any such audit shall be conducted by an independent and Qualified
Auditor identified in the notice, and shall be binding on all parties.
(d) Acquisition and retention of report. CPB and Covered Entities
shall use commercially reasonable efforts to obtain or to provide
access to any relevant books and records maintained by third parties
for the purpose of the audit. The Collective shall retain the report of
the verification for a period of not less than 3 years.
(e) Consultation. Before rendering a written report to the
Collective, except where the auditor has a reasonable basis to suspect
fraud and disclosure would, in the reasonable opinion of the auditor,
prejudice the investigation of such suspected fraud, the auditor shall
review the tentative written findings of the audit with the appropriate
agent or employee of CPB in order to remedy any factual errors and
clarify any issues relating to the audit; provided that an appropriate
agent or employee of CPB reasonably cooperates with the auditor to
remedy promptly any factual errors or clarify any issues raised by the
audit.
(f) Costs of the verification procedure. The Collective shall pay
the cost of the verification procedure, unless it is finally determined
that there was an underpayment of 10% or more, in which case CPB shall,
in addition to paying the amount of any underpayment, bear the
reasonable costs of the verification procedure.

Sec. 380.36 Verification of royalty distributions.

(a) General. This section prescribes procedures by which any
Copyright Owner or Performer may verify the royalty distributions made
by the Collective; provided, however, that nothing contained in this
section shall apply to situations where a Copyright Owner or Performer
and the Collective have agreed as to proper verification methods.
(b) Frequency of verification. A Copyright Owner or Performer may
conduct a single audit of the Collective upon reasonable notice and
during reasonable business hours, during any given calendar year, for
any or all of the prior 3 calendar years, but no calendar year shall be
subject to audit more than once.
(c) Notice of intent to audit. A Copyright Owner or Performer must
file with the Copyright Royalty Judges a notice of intent to audit the
Collective, which shall, within 30 days of the filing of the notice,
publish in the Federal Register a notice announcing such filing. The
notification of intent to audit shall be served at the same time on the
Collective. Any audit shall be conducted by an independent and
Qualified Auditor identified in the notice, and shall be binding on all
Copyright Owners and Performers.
(d) Acquisition and retention of report. The Collective shall use
commercially reasonable efforts to obtain or to provide access to any
relevant books and records maintained by third parties for the purpose
of the audit. The Copyright Owner or Performer requesting the
verification procedure shall retain the report of the verification for
a period of not less than 3 years.
(e) Consultation. Before rendering a written report to a Copyright
Owner or Performer, except where the auditor has a reasonable basis to
suspect fraud and disclosure would, in the reasonable opinion of the
auditor, prejudice the investigation of such suspected fraud, the
auditor shall review the tentative written findings of the audit with
the appropriate agent or employee of the Collective in order to remedy
any factual errors and clarify any issues relating to the audit;
Provided that the appropriate agent or employee of the Collective
reasonably cooperates with the auditor to remedy promptly any factual
errors or clarify any issues raised by the audit.
(f) Costs of the verification procedure. The Copyright Owner or
Performer requesting the verification procedure shall pay the cost of
the procedure, unless it is finally determined that there was an
underpayment of 10% or more, in which case the Collective shall, in
addition to paying the amount of any underpayment, bear the reasonable
costs of the verification procedure.

Sec. 380.37 Unclaimed funds.

If the Collective is unable to identify or locate a Copyright Owner
or Performer who is entitled to receive a royalty distribution under
this subpart, the Collective shall retain the required payment in a
segregated trust account for a period of 3 years from the date of
distribution. No claim to such distribution shall be valid after the
expiration of the 3-year period. After expiration of this period, the
Collective may apply the unclaimed funds to offset any costs deductible
under 17 U.S.C. 114(g)(3). The foregoing shall apply notwithstanding
the common law or statutes of any State.

Dated: March 20, 2015.
Jesse M. Feder,
Copyright Royalty Judge.
[FR Doc. 2015-06896 Filed 3-25-15; 8:45 am]
BILLING CODE 1410-72-P

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