Determination of Rates and Terms for Digital Performance of Sound Recordings and Making of Ephemeral Copies To Facilitate Those Performances (Web V), 58095-58098 [2019-23485]
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Federal Register / Vol. 84, No. 210 / Wednesday, October 30, 2019 / Proposed Rules
estimates that all entities handling or
planning to handle this substance have
already established and implemented
the systems and processes required to
handle FUB-AMB. There are currently
22 registrations authorized to handle
FUB-AMB specifically, as well as a
number of registered analytical labs that
are authorized to handle schedule I
controlled substances generally. These
22 registrations represent 20 entities, of
which 12 are small entities. Therefore,
the DEA estimates 12 small entities are
affected by this proposed rule.
A review of the 22 registrations
indicates that all entities that currently
handle FUB-AMB also handle other
schedule I controlled substances, and
have established and implemented (or
maintain) the systems and processes
required to handle FUB-AMB.
Therefore, the DEA anticipates that this
proposed rule will impose minimal or
no economic impact on any affected
entities; and thus, will not have a
significant economic impact on any of
the 12 affected small entities. Therefore,
the DEA has concluded that this
proposed rule will not have a significant
effect on a substantial number of small
entities.
PART 1308—SCHEDULES OF
CONTROLLED SUBSTANCES
1. The authority citation for 21 CFR
part 1308 continues to read as follows:
■
Authority: 21 U.S.C. 811, 812, 871(b),
956(b), unless otherwise noted.
2. In § 1308.11:
a. Add paragraph (d)(79); and
b. Remove and reserve paragraph
(h)(18).
The addition reads as follows:
■
■
■
§ 1308.11
*
Schedule I.
*
*
(d) * * *
*
*
(79) methyl 2-(1-(4-fluorobenzyl)1H-indazole-3-carboxamido)-3methylbutanoate, (FUB-AMB,
MMB-FUBINACA, AMBFUBINACA) ................................
*
*
*
*
*
Dated: October 21, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019–23626 Filed 10–29–19; 8:45 am]
BILLING CODE 4410–09–P
Unfunded Mandates Reform Act of 1995
LIBRARY OF CONGRESS
In accordance with the Unfunded
Mandates Reform Act (UMRA) of 1995,
2 U.S.C. 1501 et seq., the DEA has
determined and certifies that this action
would not result in any Federal
mandate that may result ‘‘in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
(adjusted for inflation) in any one
year . . .’’ Therefore, neither a Small
Government Agency Plan nor any other
action is required under UMRA of 1995.
Copyright Royalty Board
Paperwork Reduction Act of 1995
This action does not impose a new
collection of information under the
Paperwork Reduction Act of 1995. 44
U.S.C. 3501–3521. This action would
not impose recordkeeping or reporting
requirements on State or local
governments, individuals, businesses, or
organizations. An agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
List of Subjects in 21 CFR Part 1308
Administrative practice and
procedure, Drug traffic control,
Reporting and recordkeeping
requirements.
For the reasons set out above, the DEA
proposes to amend 21 CFR part 1308:
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(7021)
37 CFR Part 380
[Docket No. 19–CRB–0005–WR (2021–2025)]
Determination of Rates and Terms for
Digital Performance of Sound
Recordings and Making of Ephemeral
Copies To Facilitate Those
Performances (Web V)
Copyright Royalty Board (CRB),
Library of Congress.
ACTION: Proposed rule related to
noncommercial educational webcasters.
AGENCY:
The Copyright Royalty Judges
are publishing for comment proposed
regulations governing the rates and
terms for the digital performance of
sound recordings by noncommercial
educational webcasters and for the
making of ephemeral recordings
necessary for the facilitation of such
transmissions for the period
commencing January 1, 2021, and
ending on December 31, 2025.
DATES: Comments and objections, if any,
are due no later than November 20,
2019.
SUMMARY:
You may submit comments
and proposals, identified by docket
number 19–CRB–0005–WR (2021–
2025), by any of the following methods:
ADDRESSES:
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CRB’s electronic filing application:
Submit comments and proposals 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: Parties unable to use
eCRB must submit an original, two
paper copies, and an electronic version
on a CD. All submissions must include
the Copyright Royalty Board name and
docket number (19–CRB–0005–WR
(2021–2025)), as well as the Federal
Register citation for this proposed rule.
All submissions received will be posted
without change on 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 19–CRB–0005–WR (2021–
2025).
FOR FURTHER INFORMATION CONTACT:
Anita Blaine, CRB Program Specialist,
by telephone at (202) 707–7658 or email
at crb@loc.gov.
SUPPLEMENTARY INFORMATION: On
September 23, 2019, the Copyright
Royalty Judges (Judges) received a joint
motion from SoundExchange, Inc.,
(‘‘SoundExchange’’) and College
Broadcasters, Inc., (‘‘CBI’’) to adopt a
partial settlement of their interests
regarding Web V rates and terms for
2021–2025.1 Joint Motion to Adopt
Partial Settlement, Docket No. 19–CRB–
0005–WR (2021–2025). Their interests
concern the rule setting copyright
royalty minimum fees and terms that
the Judges will establish for compulsory
copyright licenses for certain internet
transmissions of sound recordings by
college radio stations and other
noncommercial educational webcasters
for the period from January 1, 2021,
1 Web V is short for Webcasting V. This
proceeding is the fifth since the compulsory license
for webcasting was established.
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through December 31, 2025.
SoundExchange represents the interests
of sound recording copyright owners
and performers. CBI represents the
interests of users of the copyrighted
material which users include college,
university, and high school radio and
television stations and other electronic
media organizations. The Judges hereby
publish the proposal 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
and new subscription 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). A ‘‘new subscription service’’
is a ‘‘service that performs sound
recordings by means of noninteractive
subscription digital audio transmissions
and that is not a preexisting
subscription or preexisting satellite
digital audio radio service.’’ 17 U.S.C.
114(j)(8).
Services using the section 114 license
may need to make one or more
temporary or ‘‘ephemeral’’ copies of a
sound recording to facilitate the
transmission of that recording. The
section 112 statutory license allows for
the making of these 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 2019 for rates and terms that
will become effective on January 1,
2021, and end on December 31, 2025.
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. 84 FR 359 (Jan. 24, 2019).
CBI and SoundExchange each filed
Petitions to Participate, as did others.
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On September 23, 2019,
SoundExchange and CBI submitted to
the Judges a joint motion to adopt a
partial settlement of their interests in
the proceeding. SoundExchange and
CBI requested that the Judges ‘‘endeavor
to determine before the deadline for the
filing of written rebuttal statements in
this Proceeding (January 10, 2020)
whether or not they will adopt the
Settlement.’’ Joint Motion at 1.
educational webcasters to the extent
consistent with subpart C, and the
corresponding provisions have been
removed from subpart C. Joint Motion at
2.
The public may comment and object
to any or all of the proposed regulations
contained in this document. Such
comments and objections must be
submitted no later than November 20,
2019.
Statutory Timing of Adoption of Rates
and Terms
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 participants and nonparticipants 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 [in 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).
Any rates and terms adopted pursuant
to this provision would be binding on
all copyright owners of sound
recordings, college radio stations, and
other noncommercial educational
webcasters performing the sound
recordings for the license period 2021–
2025.
List of Subjects in 37 CFR Part 380
Copyright, Sound recordings,
Webcasters.
For the reasons set forth in the
preamble, the Copyright Royalty Judges
propose to amend 37 CFR part 380 as
follows:
Proposed Adjustments to Rates and
Terms
According to SoundExchange and
CBI, the agreement generally continues
in effect the current provisions of 37
CFR part 380, subpart C, which were
themselves adopted pursuant to 17
U.S.C. 801(b)(7)(A) as part of the
Webcasting IV proceeding, with two
primary changes: (1) The minimum fee
applicable to noncommercial
educational webcasters will increase by
$50 per year throughout the rate period;
and (2) consistent with the preferences
previously expressed by the Judges, the
generally applicable provisions in
subpart A will apply to noncommercial
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PART 380—RATES AND TERMS FOR
TRANSMISSIONS BY ELIGIBLE
NONSUBSCRIPTION SERVICES AND
NEW SUBSCRIPTION SERVICES AND
FOR THE MAKING OF EPHEMERAL
REPRODUCTIONS TO FACILITATE
THOSE TRANSMISSIONS
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. Revise subpart C to read as follows:
Subpart C—Noncommercial
Educational Webcasters
Sec.
380.20 Definitions.
380.21 Royalty fees for the public
performance of sound recordings and for
ephemeral recordings.
380.22 Terms for making payment of
royalty fees and statements of account.
§ 380.20
Definitions.
For purposes of this subpart, the
following definitions apply:
Educational Transmission means an
eligible nonsubscription transmission
(as defined in 17 U.S.C. 114(j)(6)) made
by a Noncommercial Educational
Webcaster over the internet.
Noncommercial Educational
Webcaster means a noncommercial
webcaster (as defined in 17 U.S.C.
114(f)(4)(E)(i)) that:
(1) Has obtained a compulsory license
under 17 U.S.C. 112(e) and 114 and the
implementing regulations therefor to
make Educational Transmissions and
related Ephemeral Recordings;
(2) Complies with all applicable
provisions of Sections 112(e) and 114
and applicable regulations in this part;
(3) Is directly operated by, or is
affiliated with and officially sanctioned
by, and the digital audio transmission
operations of which are staffed
substantially by students enrolled at, a
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domestically accredited primary or
secondary school, college, university or
other post-secondary degree-granting
educational institution;
(4) Is not a ‘‘public broadcasting
entity’’ (as defined in 17 U.S.C. 118(f))
qualified to receive funding from the
Corporation for Public Broadcasting
pursuant to its criteria; and
(5) Takes affirmative steps not to
make total transmissions in excess of
159,140 Aggregate Tuning Hours (ATH)
on any individual channel or station in
any month, if in any previous calendar
year it has made total transmissions in
excess of 159,140 ATH on any
individual channel or station in any
month.
§ 380.21 Royalty fees for the public
performance of sound recordings and for
ephemeral recordings.
(a) Minimum fee for eligible
Noncommercial Educational
Webcasters. Each Noncommercial
Educational Webcaster that did not
exceed 159,140 total ATH for any
individual channel or station for more
than one calendar month in the
immediately preceding calendar year
and does not expect to make total
transmissions in excess of 159,140 ATH
on any individual channel or station in
any calendar month during the
applicable calendar year shall pay an
annual, nonrefundable minimum fee in
the amount set forth in paragraphs (a)(1)
through (5) of this section (the
‘‘Minimum Fee’’) for each of its
individual channels, including each of
its individual side channels, and each of
its individual stations, through which
(in each case) it makes Educational
Transmissions, for each calendar year it
makes Educational Transmissions
subject to this subpart. For clarity, each
individual stream (e.g., HD radio side
channels, different stations owned by a
single licensee) will be treated
separately and be subject to a separate
Minimum Fee. The Minimum Fee shall
constitute the annual per channel or per
station royalty for all Educational
Transmissions totaling not more than
159,140 ATH in a month on any
individual channel or station, and for
Ephemeral Recordings to enable such
Educational Transmissions. In addition,
a Noncommercial Educational
Webcaster electing the reporting waiver
described in § 380.22(d)(1) shall pay a
$100 annual fee (the ‘‘Proxy Fee’’) to the
Collective (for purposes of this subpart,
the term ‘‘Collective’’ refers to
SoundExchange, Inc.). The Minimum
Fee for each year of the royalty period
is:
(1) 2021: $550;
(2) 2022: $600;
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(3) 2023: $650;
(4) 2024: $700; and
(5) 2025: $750.
(b) Consequences of unexpectedly
exceeding ATH cap. In the case of a
Noncommercial Educational Webcaster
eligible to pay royalties under paragraph
(a) of this section that unexpectedly
makes total transmissions in excess of
159,140 ATH on any individual channel
or station in any calendar month during
the applicable calendar year:
(1) The Noncommercial Educational
Webcaster shall, for such month and the
remainder of the calendar year in which
such month occurs, pay royalties in
accordance, and otherwise comply, with
the provisions of subpart B of this part
applicable to Noncommercial
Webcasters;
(2) The Minimum Fee paid by the
Noncommercial Educational Webcaster
for such calendar year will be credited
to the amounts payable under the
provisions of subpart B of this part
applicable to Noncommercial
Webcasters; and
(3) The Noncommercial Educational
Webcaster shall, within 45 days after the
end of each month, notify the Collective
if it has made total transmissions in
excess of 159,140 ATH on a channel or
station during that month; pay the
Collective any amounts due under the
provisions of subpart B of this part
applicable to Noncommercial
Webcasters; and provide the Collective
a statement of account pursuant to
subpart A of this part.
(c) Royalties for other Noncommercial
Educational Webcasters. A
Noncommercial Educational Webcaster
that is not eligible to pay royalties under
paragraph (a) of this section shall pay
royalties in accordance, and otherwise
comply, with the provisions of subpart
B of this part applicable to
Noncommercial Webcasters.
(d) Estimation of performances. In the
case of a Noncommercial Educational
Webcaster that is required to pay
royalties under paragraph (b) or (c) of
this section on a per-Performance basis,
that is unable to calculate actual total
performances, and that is not required
to report actual total performances
under § 380.22(d)(3), the
Noncommercial Educational Webcaster
may pay its applicable royalties on an
ATH basis, provided that the
Noncommercial Educational Webcaster
shall calculate such royalties at the
applicable per-Performance rates based
on the assumption that the number of
sound recordings performed is 12 per
hour. The Collective may distribute
royalties paid on the basis of ATH
hereunder in accordance with its
generally applicable methodology for
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distributing royalties paid on such basis.
In addition, and for the avoidance of
doubt, a Noncommercial Educational
Webcaster offering more than one
channel or station shall pay perPerformance royalties on a per-channel
or -station basis.
(e) Allocation between ephemeral
recordings and performance royalty
fees. The Collective must credit 5% of
all royalty payments as payment for
Ephemeral Recordings and credit the
remaining 95% to section 114 royalties.
All Ephemeral Recordings that a
Licensee makes which are necessary
and commercially reasonable for making
Educational Transmissions are included
in the 5%.
§ 380.22 Terms for making payment of
royalty fees and statements of account.
(a) Payment to the Collective. A
Noncommercial Educational Webcaster
shall make the royalty payments due
under § 380.21 to the Collective.
(b) Minimum fee. Noncommercial
Educational Webcasters shall submit the
Minimum Fee, and Proxy Fee if
applicable (see paragraph (d) of this
section), accompanied by a statement of
account, by January 31st of each
calendar year, except that payment of
the Minimum Fee, and Proxy Fee if
applicable, by a Noncommercial
Educational Webcaster that was not
making Educational Transmissions or
Ephemeral Recordings pursuant to the
licenses in 17 U.S.C. 114 and/or 17
U.S.C. 112(e) as of January 31st of each
calendar year but begins doing so
thereafter shall be due by the 45th day
after the end of the month in which the
Noncommercial Educational Webcaster
commences doing so. At the same time
the Noncommercial Educational
Webcaster must identify all its stations
making Educational Transmissions and
identify which of the reporting options
set forth in paragraph (d) of this section
it elects for the relevant year (provided
that it must be eligible for the option it
elects).
(c) Statements of account. Any
payment due under paragraph (a) of this
section shall be accompanied by a
corresponding statement of account on
a form provided by the Collective. A
statement of account shall contain the
following information:
(1) The name of the Noncommercial
Educational Webcaster, exactly as it
appears on the notice of use, and if the
statement of account covers a single
station only, the call letters or name of
the station;
(2) The name, address, business title,
telephone number, facsimile number (if
any), electronic mail address (if any)
and other contact information of the
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person to be contacted for information
or questions concerning the content of
the statement of account;
(3) The signature of a duly authorized
representative of the applicable
educational institution;
(4) The printed or typewritten name
of the person signing the statement of
account;
(5) The date of signature;
(6) The title or official position held
by the person signing the statement of
account;
(7) A certification of the capacity of
the person signing; and
(8) A statement to the following effect:
I, the undersigned duly authorized
representative of the applicable
educational institution, have examined
this statement of account; hereby state
that it is true, accurate, and complete to
my knowledge after reasonable due
diligence; and further certify that the
licensee entity named herein qualifies
as a Noncommercial Educational
Webcaster for the relevant year, and did
not exceed 159,140 total ATH in any
month of the prior year for which the
Noncommercial Educational Webcaster
did not submit a statement of account
and pay any required additional
royalties.
(d) Reporting by Noncommercial
Educational Webcasters in general—(1)
Reporting waiver. In light of the unique
business and operational circumstances
with respect to Noncommercial
Educational Webcasters, and for the
purposes of this subpart only, a
Noncommercial Educational Webcaster
that did not exceed 80,000 total ATH for
any individual channel or station for
more than one calendar month in the
immediately preceding calendar year
and that does not expect to exceed
80,000 total ATH for any individual
channel or station for any calendar
month during the applicable calendar
year may elect to pay to the Collective
a nonrefundable, annual Proxy Fee of
$100 in lieu of providing reports of use
for the calendar year pursuant to the
regulations at § 370.4 of this chapter. In
addition, a Noncommercial Educational
Webcaster that unexpectedly exceeded
80,000 total ATH on one or more
channels or stations for more than one
month during the immediately
preceding calendar year may elect to
pay the Proxy Fee and receive the
reporting waiver described in this
paragraph (d)(1) during a calendar year,
if it implements measures reasonably
calculated to ensure that it will not
make Educational Transmissions
exceeding 80,000 total ATH during any
month of that calendar year. The Proxy
Fee is intended to defray the
Collective’s costs associated with the
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reporting waiver in this paragraph
(d)(1), including development of proxy
usage data. The Proxy Fee shall be paid
by the date specified in paragraph (b) of
this section for paying the Minimum
Fee for the applicable calendar year and
shall be accompanied by a certification
on a form provided by the Collective,
signed by a duly authorized
representative of the applicable
educational institution, stating that the
Noncommercial Educational Webcaster
is eligible for the Proxy Fee option
because of its past and expected future
usage and, if applicable, has
implemented measures to ensure that it
will not make excess Educational
Transmissions in the future.
(2) Sample-basis reports. A
Noncommercial Educational Webcaster
that did not exceed 159,140 total ATH
for any individual channel or station for
more than one calendar month in the
immediately preceding calendar year
and that does not expect to exceed
159,140 total ATH for any individual
channel or station for any calendar
month during the applicable calendar
year may elect to provide reports of use
on a sample basis (two weeks per
calendar quarter) in accordance with the
regulations at § 370.4 of this chapter,
except that, notwithstanding
§ 370.4(d)(2)(vi), such an electing
Noncommercial Educational Webcaster
shall not be required to include ATH or
actual total performances and may in
lieu thereof provide channel or station
name and play frequency.
Notwithstanding the preceding
sentence, a Noncommercial Educational
Webcaster that is able to report ATH or
actual total performances is encouraged
to do so. These reports of use shall be
submitted to the Collective no later than
January 31st of the year immediately
following the year to which they
pertain.
(3) Census-basis reports. (i) If any of
the conditions in paragraphs (d)(3)(i)(A)
through (C) of this section is satisfied,
a Noncommercial Educational
Webcaster must report pursuant to
paragraph (d)(3) of this section:
(A) The Noncommercial Educational
Webcaster exceeded 159,140 total ATH
for any individual channel or station for
more than one calendar month in the
immediately preceding calendar year;
(B) The Noncommercial Educational
Webcaster expects to exceed 159,140
total ATH for any individual channel or
station for any calendar month in the
applicable calendar year; or
(C) The Noncommercial Educational
Webcaster otherwise does not elect to be
subject to paragraph (d)(1) or (2) of this
section.
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(ii) A Noncommercial Educational
Webcaster required to report pursuant to
paragraph (d)(3)(i) of this section shall
provide reports of use to the Collective
quarterly on a census reporting basis in
accordance with § 370.4 of this chapter,
except that, notwithstanding
§ 370.4(d)(2), such a Noncommercial
Educational Webcaster shall not be
required to include ATH or actual total
performances, and may in lieu thereof
provide channel or station name and
play frequency, during the first calendar
year it reports in accordance with
paragraph (d)(3) of this section. For the
avoidance of doubt, after a
Noncommercial Educational Webcaster
has been required to report in
accordance with paragraph (d)(3)(i) of
this section for a full calendar year, it
must thereafter include ATH or actual
total performances in its reports of use.
All reports of use under paragraph
(d)(3)(i) of this section shall be
submitted to the Collective no later than
the 45th day after the end of each
calendar quarter.
(e) Server logs. Noncommercial
Educational Webcasters shall retain for
a period of no less than three full
calendar years server logs sufficient to
substantiate all information relevant to
eligibility, rate calculation and reporting
under this subpart. To the extent that a
third-party Web hosting or service
provider maintains equipment or
software for a Noncommercial
Educational Webcaster and/or such
third party creates, maintains, or can
reasonably create such server logs, the
Noncommercial Educational Webcaster
shall direct that such server logs be
created and maintained by said third
party for a period of no less than three
full calendar years and/or that such
server logs be provided to, and
maintained by, the Noncommercial
Educational Webcaster.
(f) Terms in general. Subject to the
provisions of this subpart, terms
governing late fees, distribution of
royalties by the Collective, unclaimed
funds, record retention requirements,
treatment of Licensees’ confidential
information, audit of royalty payments
and distributions, and any definitions
for applicable terms not defined in this
subpart shall be those set forth in
subpart A of this part.
Dated: October 23, 2019.
Jesse M. Feder,
Chief Copyright Royalty Judge.
[FR Doc. 2019–23485 Filed 10–29–19; 8:45 am]
BILLING CODE 1410–72–P
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[Federal Register Volume 84, Number 210 (Wednesday, October 30, 2019)]
[Proposed Rules]
[Pages 58095-58098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23485]
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LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 380
[Docket No. 19-CRB-0005-WR (2021-2025)]
Determination of Rates and Terms for Digital Performance of Sound
Recordings and Making of Ephemeral Copies To Facilitate Those
Performances (Web V)
AGENCY: Copyright Royalty Board (CRB), Library of Congress.
ACTION: Proposed rule related to noncommercial educational webcasters.
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SUMMARY: The Copyright Royalty Judges are publishing for comment
proposed regulations governing the rates and terms for the digital
performance of sound recordings by noncommercial educational webcasters
and for the making of ephemeral recordings necessary for the
facilitation of such transmissions for the period commencing January 1,
2021, and ending on December 31, 2025.
DATES: Comments and objections, if any, are due no later than November
20, 2019.
ADDRESSES: You may submit comments and proposals, identified by docket
number 19-CRB-0005-WR (2021-2025), by any of the following methods:
CRB's electronic filing application: Submit comments and proposals
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: Parties unable to use eCRB must submit an original,
two paper copies, and an electronic version on a CD. All submissions
must include the Copyright Royalty Board name and docket number (19-
CRB-0005-WR (2021-2025)), as well as the Federal Register citation for
this proposed rule. All submissions received will be posted without
change on 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 19-CRB-0005-WR (2021-2025).
FOR FURTHER INFORMATION CONTACT: Anita Blaine, CRB Program Specialist,
by telephone at (202) 707-7658 or email at [email protected].
SUPPLEMENTARY INFORMATION: On September 23, 2019, the Copyright Royalty
Judges (Judges) received a joint motion from SoundExchange, Inc.,
(``SoundExchange'') and College Broadcasters, Inc., (``CBI'') to adopt
a partial settlement of their interests regarding Web V rates and terms
for 2021-2025.\1\ Joint Motion to Adopt Partial Settlement, Docket No.
19-CRB-0005-WR (2021-2025). Their interests concern the rule setting
copyright royalty minimum fees and terms that the Judges will establish
for compulsory copyright licenses for certain internet transmissions of
sound recordings by college radio stations and other noncommercial
educational webcasters for the period from January 1, 2021,
[[Page 58096]]
through December 31, 2025. SoundExchange represents the interests of
sound recording copyright owners and performers. CBI represents the
interests of users of the copyrighted material which users include
college, university, and high school radio and television stations and
other electronic media organizations. The Judges hereby publish the
proposal and request comments from the public.
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\1\ Web V is short for Webcasting V. This proceeding is the
fifth since the compulsory license for webcasting was established.
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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 and new subscription 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). A ``new
subscription service'' is a ``service that performs sound recordings by
means of noninteractive subscription digital audio transmissions and
that is not a preexisting subscription or preexisting satellite digital
audio radio service.'' 17 U.S.C. 114(j)(8).
Services using the section 114 license may need to make one or more
temporary or ``ephemeral'' copies of a sound recording to facilitate
the transmission of that recording. The section 112 statutory license
allows for the making of these 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 2019 for
rates and terms that will become effective on January 1, 2021, and end
on December 31, 2025. 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. 84 FR 359 (Jan. 24, 2019). CBI and SoundExchange each
filed Petitions to Participate, as did others.
On September 23, 2019, SoundExchange and CBI submitted to the
Judges a joint motion to adopt a partial settlement of their interests
in the proceeding. SoundExchange and CBI requested that the Judges
``endeavor to determine before the deadline for the filing of written
rebuttal statements in this Proceeding (January 10, 2020) whether or
not they will adopt the Settlement.'' Joint Motion at 1.
Statutory Timing of Adoption of Rates and Terms
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 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 [in 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).
Any rates and terms adopted pursuant to this provision would be
binding on all copyright owners of sound recordings, college radio
stations, and other noncommercial educational webcasters performing the
sound recordings for the license period 2021-2025.
Proposed Adjustments to Rates and Terms
According to SoundExchange and CBI, the agreement generally
continues in effect the current provisions of 37 CFR part 380, subpart
C, which were themselves adopted pursuant to 17 U.S.C. 801(b)(7)(A) as
part of the Webcasting IV proceeding, with two primary changes: (1) The
minimum fee applicable to noncommercial educational webcasters will
increase by $50 per year throughout the rate period; and (2) consistent
with the preferences previously expressed by the Judges, the generally
applicable provisions in subpart A will apply to noncommercial
educational webcasters to the extent consistent with subpart C, and the
corresponding provisions have been removed from subpart C. Joint Motion
at 2.
The public may comment and object to any or all of the proposed
regulations contained in this document. Such comments and objections
must be submitted no later than November 20, 2019.
List of Subjects in 37 CFR Part 380
Copyright, Sound recordings, Webcasters.
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 TRANSMISSIONS BY ELIGIBLE
NONSUBSCRIPTION SERVICES AND NEW SUBSCRIPTION SERVICES AND FOR THE
MAKING OF EPHEMERAL REPRODUCTIONS TO FACILITATE THOSE TRANSMISSIONS
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. Revise subpart C to read as follows:
Subpart C--Noncommercial Educational Webcasters
Sec.
380.20 Definitions.
380.21 Royalty fees for the public performance of sound recordings
and for ephemeral recordings.
380.22 Terms for making payment of royalty fees and statements of
account.
Sec. 380.20 Definitions.
For purposes of this subpart, the following definitions apply:
Educational Transmission means an eligible nonsubscription
transmission (as defined in 17 U.S.C. 114(j)(6)) made by a
Noncommercial Educational Webcaster over the internet.
Noncommercial Educational Webcaster means a noncommercial webcaster
(as defined in 17 U.S.C. 114(f)(4)(E)(i)) that:
(1) Has obtained a compulsory license under 17 U.S.C. 112(e) and
114 and the implementing regulations therefor to make Educational
Transmissions and related Ephemeral Recordings;
(2) Complies with all applicable provisions of Sections 112(e) and
114 and applicable regulations in this part;
(3) Is directly operated by, or is affiliated with and officially
sanctioned by, and the digital audio transmission operations of which
are staffed substantially by students enrolled at, a
[[Page 58097]]
domestically accredited primary or secondary school, college,
university or other post-secondary degree-granting educational
institution;
(4) Is not a ``public broadcasting entity'' (as defined in 17
U.S.C. 118(f)) qualified to receive funding from the Corporation for
Public Broadcasting pursuant to its criteria; and
(5) Takes affirmative steps not to make total transmissions in
excess of 159,140 Aggregate Tuning Hours (ATH) on any individual
channel or station in any month, if in any previous calendar year it
has made total transmissions in excess of 159,140 ATH on any individual
channel or station in any month.
Sec. 380.21 Royalty fees for the public performance of sound
recordings and for ephemeral recordings.
(a) Minimum fee for eligible Noncommercial Educational Webcasters.
Each Noncommercial Educational Webcaster that did not exceed 159,140
total ATH for any individual channel or station for more than one
calendar month in the immediately preceding calendar year and does not
expect to make total transmissions in excess of 159,140 ATH on any
individual channel or station in any calendar month during the
applicable calendar year shall pay an annual, nonrefundable minimum fee
in the amount set forth in paragraphs (a)(1) through (5) of this
section (the ``Minimum Fee'') for each of its individual channels,
including each of its individual side channels, and each of its
individual stations, through which (in each case) it makes Educational
Transmissions, for each calendar year it makes Educational
Transmissions subject to this subpart. For clarity, each individual
stream (e.g., HD radio side channels, different stations owned by a
single licensee) will be treated separately and be subject to a
separate Minimum Fee. The Minimum Fee shall constitute the annual per
channel or per station royalty for all Educational Transmissions
totaling not more than 159,140 ATH in a month on any individual channel
or station, and for Ephemeral Recordings to enable such Educational
Transmissions. In addition, a Noncommercial Educational Webcaster
electing the reporting waiver described in Sec. 380.22(d)(1) shall pay
a $100 annual fee (the ``Proxy Fee'') to the Collective (for purposes
of this subpart, the term ``Collective'' refers to SoundExchange,
Inc.). The Minimum Fee for each year of the royalty period is:
(1) 2021: $550;
(2) 2022: $600;
(3) 2023: $650;
(4) 2024: $700; and
(5) 2025: $750.
(b) Consequences of unexpectedly exceeding ATH cap. In the case of
a Noncommercial Educational Webcaster eligible to pay royalties under
paragraph (a) of this section that unexpectedly makes total
transmissions in excess of 159,140 ATH on any individual channel or
station in any calendar month during the applicable calendar year:
(1) The Noncommercial Educational Webcaster shall, for such month
and the remainder of the calendar year in which such month occurs, pay
royalties in accordance, and otherwise comply, with the provisions of
subpart B of this part applicable to Noncommercial Webcasters;
(2) The Minimum Fee paid by the Noncommercial Educational Webcaster
for such calendar year will be credited to the amounts payable under
the provisions of subpart B of this part applicable to Noncommercial
Webcasters; and
(3) The Noncommercial Educational Webcaster shall, within 45 days
after the end of each month, notify the Collective if it has made total
transmissions in excess of 159,140 ATH on a channel or station during
that month; pay the Collective any amounts due under the provisions of
subpart B of this part applicable to Noncommercial Webcasters; and
provide the Collective a statement of account pursuant to subpart A of
this part.
(c) Royalties for other Noncommercial Educational Webcasters. A
Noncommercial Educational Webcaster that is not eligible to pay
royalties under paragraph (a) of this section shall pay royalties in
accordance, and otherwise comply, with the provisions of subpart B of
this part applicable to Noncommercial Webcasters.
(d) Estimation of performances. In the case of a Noncommercial
Educational Webcaster that is required to pay royalties under paragraph
(b) or (c) of this section on a per-Performance basis, that is unable
to calculate actual total performances, and that is not required to
report actual total performances under Sec. 380.22(d)(3), the
Noncommercial Educational Webcaster may pay its applicable royalties on
an ATH basis, provided that the Noncommercial Educational Webcaster
shall calculate such royalties at the applicable per-Performance rates
based on the assumption that the number of sound recordings performed
is 12 per hour. The Collective may distribute royalties paid on the
basis of ATH hereunder in accordance with its generally applicable
methodology for distributing royalties paid on such basis. In addition,
and for the avoidance of doubt, a Noncommercial Educational Webcaster
offering more than one channel or station shall pay per-Performance
royalties on a per-channel or -station basis.
(e) Allocation between ephemeral recordings and performance royalty
fees. The Collective must credit 5% of all royalty payments as payment
for Ephemeral Recordings and credit the remaining 95% to section 114
royalties. All Ephemeral Recordings that a Licensee makes which are
necessary and commercially reasonable for making Educational
Transmissions are included in the 5%.
Sec. 380.22 Terms for making payment of royalty fees and statements
of account.
(a) Payment to the Collective. A Noncommercial Educational
Webcaster shall make the royalty payments due under Sec. 380.21 to the
Collective.
(b) Minimum fee. Noncommercial Educational Webcasters shall submit
the Minimum Fee, and Proxy Fee if applicable (see paragraph (d) of this
section), accompanied by a statement of account, by January 31st of
each calendar year, except that payment of the Minimum Fee, and Proxy
Fee if applicable, by a Noncommercial Educational Webcaster that was
not making Educational Transmissions or Ephemeral Recordings pursuant
to the licenses in 17 U.S.C. 114 and/or 17 U.S.C. 112(e) as of January
31st of each calendar year but begins doing so thereafter shall be due
by the 45th day after the end of the month in which the Noncommercial
Educational Webcaster commences doing so. At the same time the
Noncommercial Educational Webcaster must identify all its stations
making Educational Transmissions and identify which of the reporting
options set forth in paragraph (d) of this section it elects for the
relevant year (provided that it must be eligible for the option it
elects).
(c) Statements of account. Any payment due under paragraph (a) of
this section shall be accompanied by a corresponding statement of
account on a form provided by the Collective. A statement of account
shall contain the following information:
(1) The name of the Noncommercial Educational Webcaster, exactly as
it appears on the notice of use, and if the statement of account covers
a single station only, the call letters or name of the station;
(2) The name, address, business title, telephone number, facsimile
number (if any), electronic mail address (if any) and other contact
information of the
[[Page 58098]]
person to be contacted for information or questions concerning the
content of the statement of account;
(3) The signature of a duly authorized representative of the
applicable educational institution;
(4) The printed or typewritten name of the person signing the
statement of account;
(5) The date of signature;
(6) The title or official position held by the person signing the
statement of account;
(7) A certification of the capacity of the person signing; and
(8) A statement to the following effect:
I, the undersigned duly authorized representative of the applicable
educational institution, have examined this statement of account;
hereby state that it is true, accurate, and complete to my knowledge
after reasonable due diligence; and further certify that the licensee
entity named herein qualifies as a Noncommercial Educational Webcaster
for the relevant year, and did not exceed 159,140 total ATH in any
month of the prior year for which the Noncommercial Educational
Webcaster did not submit a statement of account and pay any required
additional royalties.
(d) Reporting by Noncommercial Educational Webcasters in general--
(1) Reporting waiver. In light of the unique business and operational
circumstances with respect to Noncommercial Educational Webcasters, and
for the purposes of this subpart only, a Noncommercial Educational
Webcaster that did not exceed 80,000 total ATH for any individual
channel or station for more than one calendar month in the immediately
preceding calendar year and that does not expect to exceed 80,000 total
ATH for any individual channel or station for any calendar month during
the applicable calendar year may elect to pay to the Collective a
nonrefundable, annual Proxy Fee of $100 in lieu of providing reports of
use for the calendar year pursuant to the regulations at Sec. 370.4 of
this chapter. In addition, a Noncommercial Educational Webcaster that
unexpectedly exceeded 80,000 total ATH on one or more channels or
stations for more than one month during the immediately preceding
calendar year may elect to pay the Proxy Fee and receive the reporting
waiver described in this paragraph (d)(1) during a calendar year, if it
implements measures reasonably calculated to ensure that it will not
make Educational Transmissions exceeding 80,000 total ATH during any
month of that calendar year. The Proxy Fee is intended to defray the
Collective's costs associated with the reporting waiver in this
paragraph (d)(1), including development of proxy usage data. The Proxy
Fee shall be paid by the date specified in paragraph (b) of this
section for paying the Minimum Fee for the applicable calendar year and
shall be accompanied by a certification on a form provided by the
Collective, signed by a duly authorized representative of the
applicable educational institution, stating that the Noncommercial
Educational Webcaster is eligible for the Proxy Fee option because of
its past and expected future usage and, if applicable, has implemented
measures to ensure that it will not make excess Educational
Transmissions in the future.
(2) Sample-basis reports. A Noncommercial Educational Webcaster
that did not exceed 159,140 total ATH for any individual channel or
station for more than one calendar month in the immediately preceding
calendar year and that does not expect to exceed 159,140 total ATH for
any individual channel or station for any calendar month during the
applicable calendar year may elect to provide reports of use on a
sample basis (two weeks per calendar quarter) in accordance with the
regulations at Sec. 370.4 of this chapter, except that,
notwithstanding Sec. 370.4(d)(2)(vi), such an electing Noncommercial
Educational Webcaster shall not be required to include ATH or actual
total performances and may in lieu thereof provide channel or station
name and play frequency. Notwithstanding the preceding sentence, a
Noncommercial Educational Webcaster that is able to report ATH or
actual total performances is encouraged to do so. These reports of use
shall be submitted to the Collective no later than January 31st of the
year immediately following the year to which they pertain.
(3) Census-basis reports. (i) If any of the conditions in
paragraphs (d)(3)(i)(A) through (C) of this section is satisfied, a
Noncommercial Educational Webcaster must report pursuant to paragraph
(d)(3) of this section:
(A) The Noncommercial Educational Webcaster exceeded 159,140 total
ATH for any individual channel or station for more than one calendar
month in the immediately preceding calendar year;
(B) The Noncommercial Educational Webcaster expects to exceed
159,140 total ATH for any individual channel or station for any
calendar month in the applicable calendar year; or
(C) The Noncommercial Educational Webcaster otherwise does not
elect to be subject to paragraph (d)(1) or (2) of this section.
(ii) A Noncommercial Educational Webcaster required to report
pursuant to paragraph (d)(3)(i) of this section shall provide reports
of use to the Collective quarterly on a census reporting basis in
accordance with Sec. 370.4 of this chapter, except that,
notwithstanding Sec. 370.4(d)(2), such a Noncommercial Educational
Webcaster shall not be required to include ATH or actual total
performances, and may in lieu thereof provide channel or station name
and play frequency, during the first calendar year it reports in
accordance with paragraph (d)(3) of this section. For the avoidance of
doubt, after a Noncommercial Educational Webcaster has been required to
report in accordance with paragraph (d)(3)(i) of this section for a
full calendar year, it must thereafter include ATH or actual total
performances in its reports of use. All reports of use under paragraph
(d)(3)(i) of this section shall be submitted to the Collective no later
than the 45th day after the end of each calendar quarter.
(e) Server logs. Noncommercial Educational Webcasters shall retain
for a period of no less than three full calendar years server logs
sufficient to substantiate all information relevant to eligibility,
rate calculation and reporting under this subpart. To the extent that a
third-party Web hosting or service provider maintains equipment or
software for a Noncommercial Educational Webcaster and/or such third
party creates, maintains, or can reasonably create such server logs,
the Noncommercial Educational Webcaster shall direct that such server
logs be created and maintained by said third party for a period of no
less than three full calendar years and/or that such server logs be
provided to, and maintained by, the Noncommercial Educational
Webcaster.
(f) Terms in general. Subject to the provisions of this subpart,
terms governing late fees, distribution of royalties by the Collective,
unclaimed funds, record retention requirements, treatment of Licensees'
confidential information, audit of royalty payments and distributions,
and any definitions for applicable terms not defined in this subpart
shall be those set forth in subpart A of this part.
Dated: October 23, 2019.
Jesse M. Feder,
Chief Copyright Royalty Judge.
[FR Doc. 2019-23485 Filed 10-29-19; 8:45 am]
BILLING CODE 1410-72-P
