Determination of Royalty Rates and Terms for Ephemeral Recording and Digital Performance of Sound Recordings (Web V), 11857-11859 [2020-03305]

Download as PDF Federal Register / Vol. 85, No. 40 / Friday, February 28, 2020 / Rules and Regulations You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department. Mark Schultz, Delegated the authority to perform the functions and duties of the Assistant Secretary for the Office of Special Education and Rehabilitative Services. [FR Doc. 2020–03208 Filed 2–27–20; 8:45 am] BILLING CODE 4000–01–P LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 380 [Docket No. 19–CRB–0005–WR (2021–2025) (Web V)] Determination of Royalty Rates and Terms for Ephemeral Recording and Digital Performance of Sound Recordings (Web V) Copyright Royalty Board, Library of Congress. ACTION: Final rule. AGENCY: The Copyright Royalty Judges publish a final rule 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, 2021, and ending on December 31, 2025. DATES: Effective January 1, 2021. ADDRESSES: Docket: For access to the docket to read submitted background documents 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). SUMMARY: jbell on DSKJLSW7X2PROD with RULES FOR FURTHER INFORMATION CONTACT: Anita Blaine, Program Specialist, by telephone at (202) 707–0078 or email at crb@loc.gov. SUPPLEMENTARY INFORMATION: On October 29, 2019, the Copyright Royalty Judges (Judges) published a proposed rule 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, 2021, and ending on December 31, 2025. 84 VerDate Sep<11>2014 15:45 Feb 27, 2020 Jkt 250001 FR 57833. The rates and terms in the proposed rule were the subject of a settlement among SoundExchange, Inc. (‘‘SoundExchange’’), National Public Radio, Inc. (‘‘NPR’’), and the Corporation for Public Broadcasting (‘‘CPB’’) (together, the ‘‘Settling Parties’’) of their interests related to Web V 1 royalty rates and terms for certain internet transmissions by public broadcasters, NPR, American Public Media, Public Radio International, Public Radio Exchange, and certain other unnamed public radio stations for the period from January 1, 2021, through December 31, 2025. Joint Motion to Adopt Partial Settlement, Docket No. 19–CRB–0005–WR (2021– 2025) (‘‘Web V’’). The Judges received no comments on the proposed rule. 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). Because no Web V participant has objected to the settlement, and the Judges find no basis in the record to conclude that the settlement does not provide a reasonable basis for setting statutory terms and rates, the Judges adopt the terms and rates as proposed. List of Subjects in 37 CFR Part 380 Copyright, Digital audio transmissions, Performance right, Sound recordings. Final Regulations For the reasons set forth in the preamble, the Copyright Royalty Judges 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 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 D to read as follows: Subpart D—Public Broadcasters Sec. 1 Web V is short for Webcasting V. This proceeding is the fifth since Congress enacted the compulsory sound recording performance license for webcasting. PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 11857 380.30 Definitions. 380.31 Royalty fees for the public performance of sound recordings and for ephemeral recordings. 380.32 Terms for making payment of royalty fees and statements of account. Subpart D—Public Broadcasters § 380.30 Definitions. For purposes of this subpart, the following definitions apply: Authorized website is any website operated by or on behalf of any Public Broadcaster that is accessed by website Users through a Uniform Resource Locator (‘‘URL’’) owned by such Public Broadcaster and through which website Performances are made by such Public Broadcaster. CPB is the Corporation for Public Broadcasting. Music ATH is aggregate tuning hours of website 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)(4)(E)(i); and (5) Either— (i) Offers website 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 (ii) In the case of a governmental entity (including a Native American Tribal governmental entity), is operated exclusively for public purposes. 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. Public Broadcasters 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 Public Broadcasters per this definition (subject to the numerical limitations set forth in this definition). The number of E:\FR\FM\28FER1.SGM 28FER1 11858 Federal Register / Vol. 85, No. 40 / Friday, February 28, 2020 / Rules and Regulations Originating Public Radio Stations treated per this definition as Public Broadcasters 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 Public Broadcasters as provided in § 380.31(c). Side Channel is any internet-only program available on an Authorized website or an archived program on such Authorized website that, in either case, conforms to all applicable requirements under 17 U.S.C. 114. Term is the period January 1, 2021, through December 31, 2025. Website is a site located on the World Wide Web that can be located by a website User through a principal URL. Website Performances 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 website in accordance with all requirements of 17 U.S.C. 114, from servers used by a Public Broadcaster (provided that the Public Broadcaster controls the content of all materials transmitted by the server), or by a contractor authorized pursuant to § 380.31(f), that consist of either the retransmission of a Public Broadcaster’s over-the-air terrestrial radio programming or the digital transmission of nonsubscription Side Channels that are programmed and controlled by the Public Broadcaster; provided, however, that a Public Broadcaster may limit access to an Authorized website, or a portion thereof, or any content made available thereon or functionality thereof, solely to website Users who are contributing members of a Public Broadcaster. This term does not include digital audio transmissions made by any other means. Website Users are all those who access or receive website Performances or who access any Authorized website. jbell on DSKJLSW7X2PROD with RULES § 380.31 Royalty fees for the public performance of sound recordings and for ephemeral recordings. (a) Royalty rates. The total license fee for all website Performances by Public Broadcasters during each year of the Term, up to the total Music ATH set forth in paragraphs (a)(1) through (5) of this section for the relevant calendar year, and Ephemeral Recordings made by Public Broadcasters solely to facilitate such website Performances, shall be $800,000 (the ‘‘License Fee’’), unless additional payments are required as described in paragraph (c) of this section. The total Music ATH limits are: (1) 2021: 360,000,000; VerDate Sep<11>2014 15:45 Feb 27, 2020 Jkt 250001 (2) 2022: 370,000,000; (3) 2023: 380,000,000; (4) 2024: 390,000,000; and (5) 2025: 400,000,000. (b) Calculation of License Fee. It is understood that the License Fee includes: (1) An annual minimum fee for each Public Broadcaster for each year during the Term; (2) Additional usage fees for certain Public Broadcasters; and (3) A discount that reflects the administrative convenience to the Collective (for purposes of this subpart, the term ‘‘Collective’’ refers to SoundExchange, Inc.) 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 Public Broadcasters. If the total number of Originating Public Radio Stations that wish to make website Performances in any calendar year exceeds the number of such Originating Public Radio Stations considered Public Broadcasters in the relevant year, and the excess Originating Public Radio Stations do not wish to pay royalties for such website Performances apart from this subpart, CPB may elect by written notice to the Collective to increase the number of Originating Public Radio Stations considered Public Broadcasters 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 Public Broadcaster, in the amount of the annual minimum fee applicable to Noncommercial Webcasters under subpart B of this part for each additional Originating Public Radio Station per year. Such payment shall accompany the notice electing to have an additional Originating Public Radio Station considered a Public Broadcaster. (d) 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 noninteractive digital transmissions are included in the 5%. (e) Effect of non-performance by any Public Broadcaster. In the event that any Public Broadcaster 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 PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 Collective shall be specific to that Public Broadcaster only, and shall include, without limitation, termination of that Public Broadcaster’s right to be treated as a Public Broadcaster per this paragraph (e) upon written notice to CPB. The Collective and Copyright Owners also shall have whatever rights may be available to them against that Public Broadcaster under applicable law. The Collective’s remedies for such a breach or failure by an individual Public Broadcaster shall not include termination of the rights of other Public Broadcasters to be treated as Public Broadcasters per this paragraph (e), 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 Public Broadcaster 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 Public Broadcasters to be treated as Public Broadcasters per this paragraph (e) upon written notice to CPB. In such a case, a prorated portion of the License Fee for the remainder of the 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 Public Broadcasters to the Collective for the Term as specified by CPB. (f) Use of contractors. The right to rely on this subpart is limited to Public Broadcasters, except that a Public Broadcaster may employ the services of a third Person to provide the technical services and equipment necessary to deliver website Performances on behalf of such Public Broadcaster, but only through an Authorized website. Any agreement between a Public Broadcaster 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 website Performances or any other performances or Ephemeral Recordings on its own behalf or on behalf of any Person or entity other than a Public Broadcaster through the Public Broadcaster’s Authorized website by virtue of its services for the Public Broadcaster, including in the case of Ephemeral Recordings, pre-encoding or otherwise establishing a library of sound recordings that it offers to a Public Broadcaster or others for purposes of making performances, but instead must obtain all necessary licenses from the E:\FR\FM\28FER1.SGM 28FER1 Federal Register / Vol. 85, No. 40 / Friday, February 28, 2020 / Rules and Regulations 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 (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. § 380.32 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 $800,000 each, which shall be due December 31, 2020, and annually thereafter through December 31, 2024. (b) Reporting. CPB and Public Broadcasters shall submit reports of use and other information concerning website Performances as agreed upon with the Collective. (c) 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: February 10, 2020. Jesse M. Feder, Chief Copyright Royalty Judge. Approved by: Carla D. Hayden, Librarian of Congress. [FR Doc. 2020–03305 Filed 2–27–20; 8:45 am] BILLING CODE 1410–72–P AGENCY FOR INTERNATIONAL DEVELOPMENT 48 CFR Chapter 7 RIN 0412–AA94 U.S. Agency for International Development Acquisition Regulation (AIDAR): Designation of Personal Services Contractors (PSCs) as Contracting Officers and Agreement Officers U.S. Agency for International Development. ACTION: Final rule. jbell on DSKJLSW7X2PROD with RULES AGENCY: The U.S. Agency for International Development (USAID) is issuing a final rule amending the Agency for International Development SUMMARY: VerDate Sep<11>2014 15:45 Feb 27, 2020 Jkt 250001 Acquisition Regulation (AIDAR) to streamline the procedures for issuing contracting officer and agreement officer warrants to U.S. Personal Services Contractors (US PSCs) and Cooperating Country National Personal Services Contractors (CCN PSCs). DATES: This final rule is effective March 30, 2020. FOR FURTHER INFORMATION CONTACT: Anne Sattgast, Telephone: 202–916– 2623 or Email: asattgast@usaid.gov. SUPPLEMENTARY INFORMATION: I. Background The U.S. Agency for International Development (USAID) is located in offices in over 80 countries with programs in over 100 nations. USAID operates in a fluid environment responding to a myriad of crises such as war, natural disasters, epidemics, as well as working towards its long term mission of reducing poverty, strengthening democratic governance, and helping people emerge from humanitarian crises and progress beyond assistance. The Agency’s warranted work force is critical to managing these efforts. A shortage of warranted contracting/ agreement officers requires that the Agency be able to designate highly qualified US Personal Services Contractors (US PSCs) and Cooperating Country National Personal Services Contractors (CCN PSCs) as contracting/ agreement officers in an expeditious manner. The delegation of limited contracting/agreement officer authorities to a select number of CCN PSCs will also bolster the Agency to succeed in terms of building long-term, host country technical capacity to materially assist the Missions with procurement responsibility. Currently, a US PSC can be designated as a contracting officer only when a deviation from AIDAR 701.603– 70 is approved; and when the Assistant Administrator for the Bureau for Management (AA/M) approves an exception in accordance with AIDAR Appendix D 4(b)(3)e. Additionally, the Agency currently allows for the delegation of certain limited contracting officer authorities to highly qualified CCN PSCs. The CCN warrant program ran as a pilot from 2011–2014. The program became permanent in September 2014, when USAID issued a two-year class deviation from 48 CFR AIDAR 701.603–70. In conjunction with the approval of the class deviation, the Assistant Administrator for the Bureau for Management (AA/M) approved a class exception to the limitations in AIDAR PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 11859 Appendix J 4(b)(3). Subsequent two-year class deviations were issued for the permanent CCN warrant program in September 2016 and September 2018. USAID published a proposed rule in the Federal Register at 84 FR 27745 on June 14, 2019, to amend the AIDAR to allow for the designation of US PSCs and CCN PSCs as contracting officers and agreement officers. The proposed rule’s supplementary information contains additional background on the designation of US PSCs and CCN PSCs as contracting and agreement officers, including more details on the permanent CCN warrant program and an analysis of the risks associated with designating non-U.S. citizens as contracting and agreement officers. This final rule amends the AIDAR to streamline the procedures for issuing contracting officer and agreement officer warrants to US PSCs and CCN PSCs. Thirteen respondents submitted comments related to the proposed rule. II. Discussion and Analysis USAID reviewed and considered the public comments before the issuance of this final rule. No changes were made to the proposed rule as a result of the comments. A discussion of the comments is provided below. A. General Support for the Rule Comment: Eleven of the thirteen respondents expressed explicit support for the proposed rule. For example, several respondents stated that the rule helps PSCs and highlights their contributions to the Agency. Several other respondents noted that the current process for securing warrants for PSCs, which requires an exception from AA/ M, was difficult and cumbersome and that the improvements in the proposed rule will result in a more efficient process, allowing the Agency to issue warrants to PSCs in a timely manner. Others noted that this rule will help address a shortage of contracting officers and is a positive change for an overburdened workforce. Response: USAID agrees with these comments. PSCs are an important part of the Agency’s workforce. B. Designating CCN PSCs as Contracting Officers Comment: One respondent was concerned that the delegation of warrant CCN PSCs would be in conflict with regulations relating to inherently governmental functions. Response: USAID CCN PSCs are able to perform inherently governmental functions under federal law and USAID policy. (48 CFR) FAR subpart 7.5 exempts PSCs from the restrictions on E:\FR\FM\28FER1.SGM 28FER1

Agencies

[Federal Register Volume 85, Number 40 (Friday, February 28, 2020)]
[Rules and Regulations]
[Pages 11857-11859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03305]


=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 380

[Docket No. 19-CRB-0005-WR (2021-2025) (Web V)]


Determination of Royalty Rates and Terms for Ephemeral Recording 
and Digital Performance of Sound Recordings (Web V)

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Final rule.

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

SUMMARY: The Copyright Royalty Judges publish a final rule 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, 2021, and ending on December 31, 2025.

DATES: Effective January 1, 2021.

ADDRESSES: Docket: For access to the docket to read submitted 
background documents 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, Program Specialist, by 
telephone at (202) 707-0078 or email at [email protected].

SUPPLEMENTARY INFORMATION: On October 29, 2019, the Copyright Royalty 
Judges (Judges) published a proposed rule 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, 
2021, and ending on December 31, 2025. 84 FR 57833. The rates and terms 
in the proposed rule were the subject of a settlement among 
SoundExchange, Inc. (``SoundExchange''), National Public Radio, Inc. 
(``NPR''), and the Corporation for Public Broadcasting (``CPB'') 
(together, the ``Settling Parties'') of their interests related to Web 
V \1\ royalty rates and terms for certain internet transmissions by 
public broadcasters, NPR, American Public Media, Public Radio 
International, Public Radio Exchange, and certain other unnamed public 
radio stations for the period from January 1, 2021, through December 
31, 2025. Joint Motion to Adopt Partial Settlement, Docket No. 19-CRB-
0005-WR (2021-2025) (``Web V''). The Judges received no comments on the 
proposed rule.
---------------------------------------------------------------------------

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

    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). Because no Web V participant has objected to the 
settlement, and the Judges find no basis in the record to conclude that 
the settlement does not provide a reasonable basis for setting 
statutory terms and rates, the Judges adopt the terms and rates as 
proposed.

List of Subjects in 37 CFR Part 380

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

Final Regulations

    For the reasons set forth in the preamble, the Copyright Royalty 
Judges 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 D to read as follows:
Subpart D--Public Broadcasters
Sec.
380.30 Definitions.
380.31 Royalty fees for the public performance of sound recordings 
and for ephemeral recordings.
380.32 Terms for making payment of royalty fees and statements of 
account.

Subpart D--Public Broadcasters


Sec.  380.30   Definitions.

    For purposes of this subpart, the following definitions apply:
    Authorized website is any website operated by or on behalf of any 
Public Broadcaster that is accessed by website Users through a Uniform 
Resource Locator (``URL'') owned by such Public Broadcaster and through 
which website Performances are made by such Public Broadcaster.
    CPB is the Corporation for Public Broadcasting.
    Music ATH is aggregate tuning hours of website 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)(4)(E)(i); and
    (5) Either--
    (i) Offers website 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
    (ii) In the case of a governmental entity (including a Native 
American Tribal governmental entity), is operated exclusively for 
public purposes.
    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.
    Public Broadcasters 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 Public Broadcasters per this definition (subject to the 
numerical limitations set forth in this definition). The number of

[[Page 11858]]

Originating Public Radio Stations treated per this definition as Public 
Broadcasters 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 Public Broadcasters as provided in Sec.  
380.31(c).
    Side Channel is any internet-only program available on an 
Authorized website or an archived program on such Authorized website 
that, in either case, conforms to all applicable requirements under 17 
U.S.C. 114.
    Term is the period January 1, 2021, through December 31, 2025.
    Website is a site located on the World Wide Web that can be located 
by a website User through a principal URL.
    Website Performances 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 website in accordance with all requirements of 17 U.S.C. 
114, from servers used by a Public Broadcaster (provided that the 
Public Broadcaster controls the content of all materials transmitted by 
the server), or by a contractor authorized pursuant to Sec.  380.31(f), 
that consist of either the retransmission of a Public Broadcaster's 
over-the-air terrestrial radio programming or the digital transmission 
of nonsubscription Side Channels that are programmed and controlled by 
the Public Broadcaster; provided, however, that a Public Broadcaster 
may limit access to an Authorized website, or a portion thereof, or any 
content made available thereon or functionality thereof, solely to 
website Users who are contributing members of a Public Broadcaster. 
This term does not include digital audio transmissions made by any 
other means.
    Website Users are all those who access or receive website 
Performances or who access any Authorized website.


Sec.  380.31   Royalty fees for the public performance of sound 
recordings and for ephemeral recordings.

    (a) Royalty rates. The total license fee for all website 
Performances by Public Broadcasters during each year of the Term, up to 
the total Music ATH set forth in paragraphs (a)(1) through (5) of this 
section for the relevant calendar year, and Ephemeral Recordings made 
by Public Broadcasters solely to facilitate such website Performances, 
shall be $800,000 (the ``License Fee''), unless additional payments are 
required as described in paragraph (c) of this section. The total Music 
ATH limits are:
    (1) 2021: 360,000,000;
    (2) 2022: 370,000,000;
    (3) 2023: 380,000,000;
    (4) 2024: 390,000,000; and
    (5) 2025: 400,000,000.
    (b) Calculation of License Fee. It is understood that the License 
Fee includes:
    (1) An annual minimum fee for each Public Broadcaster for each year 
during the Term;
    (2) Additional usage fees for certain Public Broadcasters; and
    (3) A discount that reflects the administrative convenience to the 
Collective (for purposes of this subpart, the term ``Collective'' 
refers to SoundExchange, Inc.) 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 Public Broadcasters. If the total number of 
Originating Public Radio Stations that wish to make website 
Performances in any calendar year exceeds the number of such 
Originating Public Radio Stations considered Public Broadcasters in the 
relevant year, and the excess Originating Public Radio Stations do not 
wish to pay royalties for such website Performances apart from this 
subpart, CPB may elect by written notice to the Collective to increase 
the number of Originating Public Radio Stations considered Public 
Broadcasters 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 Public Broadcaster, in the amount of the annual 
minimum fee applicable to Noncommercial Webcasters under subpart B of 
this part for each additional Originating Public Radio Station per 
year. Such payment shall accompany the notice electing to have an 
additional Originating Public Radio Station considered a Public 
Broadcaster.
    (d) 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 noninteractive digital 
transmissions are included in the 5%.
    (e) Effect of non-performance by any Public Broadcaster. In the 
event that any Public Broadcaster 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 Public Broadcaster only, and shall include, without limitation, 
termination of that Public Broadcaster's right to be treated as a 
Public Broadcaster per this paragraph (e) upon written notice to CPB. 
The Collective and Copyright Owners also shall have whatever rights may 
be available to them against that Public Broadcaster under applicable 
law. The Collective's remedies for such a breach or failure by an 
individual Public Broadcaster shall not include termination of the 
rights of other Public Broadcasters to be treated as Public 
Broadcasters per this paragraph (e), 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 Public 
Broadcaster 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 
Public Broadcasters to be treated as Public Broadcasters per this 
paragraph (e) upon written notice to CPB. In such a case, a prorated 
portion of the License Fee for the remainder of the 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 Public Broadcasters to the Collective for the 
Term as specified by CPB.
    (f) Use of contractors. The right to rely on this subpart is 
limited to Public Broadcasters, except that a Public Broadcaster may 
employ the services of a third Person to provide the technical services 
and equipment necessary to deliver website Performances on behalf of 
such Public Broadcaster, but only through an Authorized website. Any 
agreement between a Public Broadcaster 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 
website Performances or any other performances or Ephemeral Recordings 
on its own behalf or on behalf of any Person or entity other than a 
Public Broadcaster through the Public Broadcaster's Authorized website 
by virtue of its services for the Public Broadcaster, including in the 
case of Ephemeral Recordings, pre-encoding or otherwise establishing a 
library of sound recordings that it offers to a Public Broadcaster or 
others for purposes of making performances, but instead must obtain all 
necessary licenses from the

[[Page 11859]]

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
    (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.  380.32   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 $800,000 each, which shall be 
due December 31, 2020, and annually thereafter through December 31, 
2024.
    (b) Reporting. CPB and Public Broadcasters shall submit reports of 
use and other information concerning website Performances as agreed 
upon with the Collective.
    (c) 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: February 10, 2020.
Jesse M. Feder,
Chief Copyright Royalty Judge.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2020-03305 Filed 2-27-20; 8:45 am]
 BILLING CODE 1410-72-P