Determination of Royalty Rates and Terms for Making Ephemeral Copies of Sound Recordings for Transmission to Business Establishments (Business Establishments III), 22907-22908 [2018-10509]

Download as PDF Federal Register / Vol. 83, No. 96 / Thursday, May 17, 2018 / Proposed Rules section 407 of title 17 of the United States Code. * * * * * (n) The scope of a group registration. * * * When the Office issues a group registration under paragraph (f) of this section, the registration covers each issue in the group and each issue is registered as a separate work or a separate collective work (as the case may be). * * * ■ 6. Amend § 202.19 by adding paragraph (d)(2)(x) to read as follows: § 202.19 Deposit of published copies or phonorecords for the Library of Congress. amozie on DSK3GDR082PROD with PROPOSALS * * * * * (d) * * * (2) * * * (x) In the case of serials (as defined in § 202.3(b)(1)(v), but excluding newspapers) published in the United States in a physical format, or in both a physical and an electronic format, the copyright owner or the owner of the exclusive right of publication must provide the Library of Congress with two complimentary subscriptions to the serial, unless the Copyright Acquisitions Division informs the owner that the serial is not needed for the Library’s collections. Subscription copies must be physically mailed to the Copyright Office, at the address for mandatory deposit copies specified in § 201.1(c) of this chapter, promptly after the publication of each issue, and the subscription(s) must be maintained on an ongoing basis. The owner may cancel the subscription(s) if the serial is no longer published by the owner, if the serial is no longer published in the United States in a physical format, or if the Copyright Acquisitions Division informs the owner that the serial is no longer needed for the Library’s collections. In addition, prior to commencing the subscriptions, the owner must send a letter to the Copyright Acquisitions Division at the address specified in § 201.1(b) of this chapter confirming that the owner will provide the requested number of subscriptions for the Library of Congress. The letter must include the name of the publisher, the title of the newsletter, the International Standard Serial Number (‘‘ISSN’’) that has been assigned to the newsletter (if any), and the issue date and the numerical or chronological designations that appear on the first issue that will be provided under the subscriptions. VerDate Sep<11>2014 17:48 May 16, 2018 Jkt 244001 Dated: May 11, 2018. Sarang V. Damle, General Counsel and Associate Register of Copyrights. [FR Doc. 2018–10420 Filed 5–16–18; 8:45 am] BILLING CODE 1410–30–P LIBRARY OF CONGRESS Copyright Royalty Board 17 CFR Part 384 [Docket No. 17–CRB–0001–BER (2019– 2023)] Determination of Royalty Rates and Terms for Making Ephemeral Copies of Sound Recordings for Transmission to Business Establishments (Business Establishments III) Copyright Royalty Board, Library of Congress. ACTION: Proposed rule. AGENCY: The Copyright Royalty Judges (Judges) publish for comment proposed regulations that set rates and terms for the making of an ephemeral recording of a sound recording by a business establishment service for the period January 1, 2019, through December 31, 2023. DATES: Comments and objections are due no later than June 18, 2018. ADDRESSES: You may submit comments and objections, identified by docket number 17–CRB–0001–BER (2019– 2023), by any of the following methods: CRB’s electronic filing application: Submit comments online in eCRB at https://app.crb.gov/. 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– 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. Instructions: Unless submitting online, commenters must submit an original, two paper copies, and an electronic version on a CD. All submissions must include a reference to the CRB and this docket number. All submissions will be posted without SUMMARY: PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 22907 change to eCRB at https://app.crb.gov/ including any personal information provided. Docket: For access to the docket to read submitted background documents or comments, go to eCRB, the Copyright Royalty Board’s electronic filing and case management system, at https:// app.crb.gov/ and search for docket number 17–CRB–0001–BER (2019– 2023). FOR FURTHER INFORMATION CONTACT: Anita Blaine, CRB Program Specialist, by telephone at (202) 707–7658 or email at crb@loc.gov. SUPPLEMENTARY INFORMATION: In 1995, Congress enacted the Digital Performance in Sound Recordings Act, Public Law 104–39, which created an exclusive right, subject to certain limitations, for copyright owners of sound recordings to perform publicly those sound recordings by means of certain digital audio transmissions. Among the limitations on the performance right was the creation of a statutory license for nonexempt, noninteractive digital subscription transmissions. 17 U.S.C. 114(d). The scope of the section 114 statutory license was expanded in 1998 upon the passage of the Digital Millennium Copyright Act of 1998 (DMCA), Public Law 105–34, which allows public performance of a sound recording when made in accordance with the terms and rates of the statutory license, by a preexisting satellite digital audio radio service or as part of an eligible nonsubscription transmission. 17 U.S.C. 114(d). The DMCA also created a statutory license for the making of an ‘‘ephemeral recording’’ of a sound recording by certain transmitting organizations. 17 U.S.C. 112(e). This license, among other things, allows entities that transmit performances of sound recordings to business establishments to make an ephemeral recording of a sound recording for later transmission, pursuant to the limitations set forth in section 114(d)(1)(C)(iv). Chapter 8 of the Copyright Act requires the Copyright Royalty Judges (Judges) to conduct proceedings every five years to determine the royalty rates and terms for ‘‘the activities described in section 112(e)(1) relating to the limitation on exclusive rights specified by section 114(d)(1)(C)(iv).’’ 17 U.S.C. 801(b)(1), 804(b)(2). Accordingly, the Judges published a notice commencing the current proceeding and requesting that interested parties submit petitions to participate. 82 FR 143 (Jan. 3, 2017). The Judges received Petitions to Participate from Mood Media E:\FR\FM\17MYP1.SGM 17MYP1 22908 Federal Register / Vol. 83, No. 96 / Thursday, May 17, 2018 / Proposed Rules amozie on DSK3GDR082PROD with PROPOSALS Corporation, Music Choice, David Powell, David Rahn, Rockbot, Inc., Sirius XM Radio Inc., and SoundExchange, Inc. The Judges initiated the three-month negotiation period and directed the participants to submit written direct statements no later than May 14, 2018. See 17 U.S.C. 803(b)(3). On May 4, 2018, the Judges received a Motion to Adopt Settlement stating that all participants 1 had reached a settlement obviating the need for written direct statements or a hearing. Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to adopt royalty rates and terms negotiated by ‘‘some or all of the participants in a proceeding at any time during the proceeding’’ provided they are submitted to the Judges for approval. The Judges must provide ‘‘an opportunity to comment on the agreement’’ to both participants and non-participants in the rate proceeding who ‘‘would be bound by the terms, rates, or other determination set by any agreement . . .’’ 17 U.S.C. 801(b)(7)(A)(i). Participants in the proceeding may also ‘‘object to [the agreement’s] adoption as a basis for statutory terms and rates.’’ Id. The Judges ‘‘may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement,’’ only ‘‘ if any participant [to the proceeding] objects to the agreement and the [Judges] conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates.’’ 17 U.S.C. 801(b)(7)(A)(ii). Royalty rates and terms adopted pursuant to section 801(b)(7)(A) are binding on all copyright owners of sound recordings and all business establishment services making an ephemeral recording of a sound recording for the period January 1, 2019, through December 31, 2023. The public may comment and object to any or all of the proposed regulations contained in this notice. Comments and objections must be submitted no later than June 18, 2018. 1 Despite filing a Petition to Participate, David Powell did not participate in the negotiations and did not join in the agreed settlement. The Judges make no finding with regard to Mr. Powell’s eligibility to participate in this proceeding. Mr. Powell may, of course, respond to this notice. To the extent Mr. Powell has an interest in the business establishment services license, he will be bound by the royalty rates and terms the Judges adopt ultimately. VerDate Sep<11>2014 17:48 May 16, 2018 Jkt 244001 List of Subjects in 37 CFR Part 384 Copyright, Digital audio transmissions, Ephemeral recordings, Performance right, Sound recordings. Proposed Regulations For the reasons set forth in the preamble, the Copyright Royalty Judges propose to amend part 384 of chapter III of title 37 of the Code of Federal Regulations as follows: PART 384—RATES AND TERMS FOR THE MAKING OF EPHEMERAL RECORDINGS BY BUSINESS ESTABLISHMENT SERVICES 1. The authority citation for part 384 continues to read as follows: ■ Authority: 17 U.S.C. 112(e), 801(b)(1). § 384.1 [Amended] 4. In § 384.5 amend paragraph (d)(4) by removing the second comma before the word ‘‘subject’’. ■ Dated: May 11, 2018. Suzanne M. Barnett, Chief Copyright Royalty Judge. [FR Doc. 2018–10509 Filed 5–16–18; 8:45 am] [Amended] 2. In § 384.1 amend paragraph (a) by removing ‘‘January 1, 2014, through December 31, 2018’’ and adding ‘‘January 1, 2019, through December 31, 2023’’ in its place. ■ 3. Amend § 384.3 by revising paragraph (a) to read as follows and in paragraph (b), removing ‘‘$10,000’’ and adding ‘‘$20,000.’’ § 384.3 Royalty fees for ephemeral recordings. (a) Basic royalty rate. (1) For the making of any number of Ephemeral Recordings in the operation of a Business Establishment Service, a Licensee shall pay a royalty equal to the following percentages of such Licensee’s ‘‘Gross Proceeds’’ derived from the use in such service of musical programs that are attributable to copyrighted recordings: Rate (%) Year ...................................... ...................................... ...................................... ...................................... ...................................... 12.5 12.75 13.0 13.25 13.5 (2) ‘‘Gross Proceeds’’ as used in this section means all fees and payments, including those made in kind, received from any source before, during or after the License Period that are derived from the use of copyrighted sound recordings during the License Period pursuant to 17 U.S.C. 112(e) for the sole purpose of facilitating a transmission to the public of a performance of a sound recording under the limitation on exclusive rights specified in 17 U.S.C. 114(d)(1)(C)(iv). The attribution of Gross Proceeds to copyrighted recordings may be made on the basis of: PO 00000 § 384.5 BILLING CODE 1410–72–P ■ 2019 2020 2021 2022 2023 (i) For classical programs, the proportion that the playing time of copyrighted classical recordings bears to the total playing time of all classical recordings in the program; and (ii) For all other programs, the proportion that the number of copyrighted recordings bears to the total number of all recordings in the program. * * * * * Frm 00026 Fmt 4702 Sfmt 4702 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2018–0272; FRL–9978– 17—Region 9] Air Plan Approval; California; San Joaquin Valley Unified Air Pollution Control District; Reasonably Available Control Technology Demonstration Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or ‘‘District’’) portion of the California State Implementation Plan (SIP), which applies to the San Joaquin Valley of California (‘‘Valley’’). These revisions concern the District’s demonstration regarding Reasonably Available Control Technology (RACT) requirements for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). We are also proposing to approve a public draft version of SJVUAPCD’s supplement to its 2014 RACT SIP demonstration, which contains relevant permit conditions for J.R. Simplot’s Nitric Acid plant in Helm, California (CA) and negative declarations where the District concludes it has no sources subject to certain Control Techniques Guidelines (CTG) documents. We are proposing action on local SIP revisions under the Clean Air Act (CAA or ‘‘the Act’’). We are taking comments on this proposal and plan to follow with a final action. DATES: Any comments must arrive by June 18, 2018. SUMMARY: E:\FR\FM\17MYP1.SGM 17MYP1

Agencies

[Federal Register Volume 83, Number 96 (Thursday, May 17, 2018)]
[Proposed Rules]
[Pages 22907-22908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10509]


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LIBRARY OF CONGRESS

Copyright Royalty Board

17 CFR Part 384

[Docket No. 17-CRB-0001-BER (2019-2023)]


Determination of Royalty Rates and Terms for Making Ephemeral 
Copies of Sound Recordings for Transmission to Business Establishments 
(Business Establishments III)

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Proposed rule.

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

SUMMARY: The Copyright Royalty Judges (Judges) publish for comment 
proposed regulations that set rates and terms for the making of an 
ephemeral recording of a sound recording by a business establishment 
service for the period January 1, 2019, through December 31, 2023.

DATES: Comments and objections are due no later than June 18, 2018.

ADDRESSES: You may submit comments and objections, identified by docket 
number 17-CRB-0001-BER (2019-2023), by any of the following methods:
    CRB's electronic filing application: Submit comments online in eCRB 
at https://app.crb.gov/.
    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 20559-6000. 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.
    Instructions: Unless submitting online, commenters must submit an 
original, two paper copies, and an electronic version on a CD. All 
submissions must include a reference to the CRB and this docket number. 
All submissions will be posted without change to eCRB at https://app.crb.gov/ including any personal information provided.
    Docket: For access to the docket to read submitted background 
documents or comments, go to eCRB, the Copyright Royalty Board's 
electronic filing and case management system, at https://app.crb.gov/ 
and search for docket number 17-CRB-0001-BER (2019-2023).

FOR FURTHER INFORMATION CONTACT: Anita Blaine, CRB Program Specialist, 
by telephone at (202) 707-7658 or email at [email protected].

SUPPLEMENTARY INFORMATION: In 1995, Congress enacted the Digital 
Performance in Sound Recordings Act, Public Law 104-39, which created 
an exclusive right, subject to certain limitations, for copyright 
owners of sound recordings to perform publicly those sound recordings 
by means of certain digital audio transmissions. Among the limitations 
on the performance right was the creation of a statutory license for 
nonexempt, noninteractive digital subscription transmissions. 17 U.S.C. 
114(d).
    The scope of the section 114 statutory license was expanded in 1998 
upon the passage of the Digital Millennium Copyright Act of 1998 
(DMCA), Public Law 105-34, which allows public performance of a sound 
recording when made in accordance with the terms and rates of the 
statutory license, by a preexisting satellite digital audio radio 
service or as part of an eligible nonsubscription transmission. 17 
U.S.C. 114(d).
    The DMCA also created a statutory license for the making of an 
``ephemeral recording'' of a sound recording by certain transmitting 
organizations. 17 U.S.C. 112(e). This license, among other things, 
allows entities that transmit performances of sound recordings to 
business establishments to make an ephemeral recording of a sound 
recording for later transmission, pursuant to the limitations set forth 
in section 114(d)(1)(C)(iv).
    Chapter 8 of the Copyright Act requires the Copyright Royalty 
Judges (Judges) to conduct proceedings every five years to determine 
the royalty rates and terms for ``the activities described in section 
112(e)(1) relating to the limitation on exclusive rights specified by 
section 114(d)(1)(C)(iv).'' 17 U.S.C. 801(b)(1), 804(b)(2). 
Accordingly, the Judges published a notice commencing the current 
proceeding and requesting that interested parties submit petitions to 
participate. 82 FR 143 (Jan. 3, 2017).
    The Judges received Petitions to Participate from Mood Media

[[Page 22908]]

Corporation, Music Choice, David Powell, David Rahn, Rockbot, Inc., 
Sirius XM Radio Inc., and SoundExchange, Inc. The Judges initiated the 
three-month negotiation period and directed the participants to submit 
written direct statements no later than May 14, 2018. See 17 U.S.C. 
803(b)(3).
    On May 4, 2018, the Judges received a Motion to Adopt Settlement 
stating that all participants \1\ had reached a settlement obviating 
the need for written direct statements or a hearing.
---------------------------------------------------------------------------

    \1\ Despite filing a Petition to Participate, David Powell did 
not participate in the negotiations and did not join in the agreed 
settlement. The Judges make no finding with regard to Mr. Powell's 
eligibility to participate in this proceeding. Mr. Powell may, of 
course, respond to this notice. To the extent Mr. Powell has an 
interest in the business establishment services license, he will be 
bound by the royalty rates and terms the Judges adopt ultimately.
---------------------------------------------------------------------------

    Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to 
adopt royalty rates and terms negotiated by ``some or all of the 
participants in a proceeding at any time during the proceeding'' 
provided they are submitted to the Judges for approval. The Judges must 
provide ``an opportunity to comment on the agreement'' to both 
participants and non-participants in the rate proceeding who ``would be 
bound by the terms, rates, or other determination set by any agreement 
. . .'' 17 U.S.C. 801(b)(7)(A)(i). Participants in the proceeding may 
also ``object to [the agreement's] adoption as a basis for statutory 
terms and rates.'' Id.
    The Judges ``may decline to adopt the agreement as a basis for 
statutory terms and rates for participants that are not parties to the 
agreement,'' only `` if any participant [to the proceeding] objects to 
the agreement and the [Judges] conclude, based on the record before 
them if one exists, that the agreement does not provide a reasonable 
basis for setting statutory terms or rates.'' 17 U.S.C. 
801(b)(7)(A)(ii).
    Royalty rates and terms adopted pursuant to section 801(b)(7)(A) 
are binding on all copyright owners of sound recordings and all 
business establishment services making an ephemeral recording of a 
sound recording for the period January 1, 2019, through December 31, 
2023.
    The public may comment and object to any or all of the proposed 
regulations contained in this notice. Comments and objections must be 
submitted no later than June 18, 2018.

List of Subjects in 37 CFR Part 384

    Copyright, Digital audio transmissions, Ephemeral recordings, 
Performance right, Sound recordings.

Proposed Regulations

    For the reasons set forth in the preamble, the Copyright Royalty 
Judges propose to amend part 384 of chapter III of title 37 of the Code 
of Federal Regulations as follows:

PART 384--RATES AND TERMS FOR THE MAKING OF EPHEMERAL RECORDINGS BY 
BUSINESS ESTABLISHMENT SERVICES

0
1. The authority citation for part 384 continues to read as follows:

    Authority:  17 U.S.C. 112(e), 801(b)(1).


Sec.  384.1   [Amended]

0
2. In Sec.  384.1 amend paragraph (a) by removing ``January 1, 2014, 
through December 31, 2018'' and adding ``January 1, 2019, through 
December 31, 2023'' in its place.
0
3. Amend Sec.  384.3 by revising paragraph (a) to read as follows and 
in paragraph (b), removing ``$10,000'' and adding ``$20,000.''


Sec.  384.3   Royalty fees for ephemeral recordings.

    (a) Basic royalty rate. (1) For the making of any number of 
Ephemeral Recordings in the operation of a Business Establishment 
Service, a Licensee shall pay a royalty equal to the following 
percentages of such Licensee's ``Gross Proceeds'' derived from the use 
in such service of musical programs that are attributable to 
copyrighted recordings:

------------------------------------------------------------------------
                          Year                               Rate (%)
------------------------------------------------------------------------
2019....................................................            12.5
2020....................................................           12.75
2021....................................................            13.0
2022....................................................           13.25
2023....................................................            13.5
------------------------------------------------------------------------

    (2) ``Gross Proceeds'' as used in this section means all fees and 
payments, including those made in kind, received from any source 
before, during or after the License Period that are derived from the 
use of copyrighted sound recordings during the License Period pursuant 
to 17 U.S.C. 112(e) for the sole purpose of facilitating a transmission 
to the public of a performance of a sound recording under the 
limitation on exclusive rights specified in 17 U.S.C. 114(d)(1)(C)(iv). 
The attribution of Gross Proceeds to copyrighted recordings may be made 
on the basis of:
    (i) For classical programs, the proportion that the playing time of 
copyrighted classical recordings bears to the total playing time of all 
classical recordings in the program; and
    (ii) For all other programs, the proportion that the number of 
copyrighted recordings bears to the total number of all recordings in 
the program.
* * * * *


Sec.  384.5   [Amended]

0
4. In Sec.  384.5 amend paragraph (d)(4) by removing the second comma 
before the word ``subject''.

    Dated: May 11, 2018.
Suzanne M. Barnett,
Chief Copyright Royalty Judge.
[FR Doc. 2018-10509 Filed 5-16-18; 8:45 am]
 BILLING CODE 1410-72-P