Determination of Rates and Terms for Public Broadcasting (PB IV), 41827-41833 [2023-13668]
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Federal Register / Vol. 88, No. 123 / Wednesday, June 28, 2023 / Rules and Regulations
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 381
[Docket No. 21–CRB–0002–PBR (2023–
2027)]
Determination of Rates and Terms for
Public Broadcasting (PB IV)
Copyright Royalty Board (CRB),
Library of Congress.
ACTION: Final rule.
AGENCY:
The Copyright Royalty Judges
publish final regulations that set rates
and terms for use of certain works in
connection with noncommercial
broadcasting for the period from January
1, 2023, through December 31, 2027.
DATES:
Effective date: June 28, 2023.
Applicability date: These rates and
terms are applicable during the period
from January 1, 2023, through December
31, 2027.
ADDRESSES: For access to the docket to
read background documents or the
comment received, go to eCRB, the
Copyright Royalty Board’s electronic
filing and case management system, at
https://app.crb.gov/ and search for
docket number 21–CRB–0002–PBR
(2023–2027).
FOR FURTHER INFORMATION CONTACT:
Anita Brown, CRB Program Specialist,
(202) 707–7658, crb@loc.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Background
Section 118 of the Copyright Act, title
17 of the United States Code, establishes
a statutory license for the use of certain
copyrighted works in connection with
noncommercial television and radio
broadcasting. Chapter 8 of the Copyright
Act requires the Copyright Royalty
Judges (Judges) to conduct proceedings
every five years to determine the rates
and terms for the section 118 license. 17
U.S.C. 801(b)(1), 804(b)(6). In
accordance with section 804(b)(6), the
Judges commenced the proceeding to set
rates and terms for the period 2023–
2027 on January 5, 2021. 86 FR 325.
In the Federal Register notice, the
Judges requested that interested parties
submit petitions to participate. Id.
Petitions to Participate (PTPs) were
received from: The American Society of
Authors, Composers and Publishers
(ASCAP); SESAC Performing Rights,
LLC; Broadcast Music, Inc. (BMI);
Educational Media Foundation (EMF);
Corporation for Public Broadcasting
(CPB), National Public Radio (NPR), and
the Public Broadcasting Service (PBS)
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(jointly, the Public Broadcasting Entities
(PBE)); National Religious Broadcasters
Noncommercial Music License
Committee (NRBNMLC); the Church
Music Publishers’ Association (CMPA);
The Harry Fox Agency (HFA); Global
Music Rights, LLC (GMR); and David
Powell.
The Judges set the timetable for the
three-month negotiation period, see 17
U.S.C. 803(b)(3), and directed the
participants to submit written direct
statements no later than September 10,
2021. Notice of Participants,
Commencement of Voluntary
Negotiation Period, and Case
Scheduling Order (Feb. 9, 2021). The
Judges amended the case schedule four
times to accommodate ongoing
negotiations. See, e.g., Order Granting
Joint Motion to Postpone Submission of
Written Direct Statements (Dec. 1,
2021). In July 2021, September 2021,
November 2021, and December 2022
participants filed notices of settlement
and proposed rates and terms for
adoption.1
There are two ways copyright owners
and public broadcasting entities 2 may
negotiate rates and terms under the
section 118 statutory license. First,
copyright owners may negotiate rates
and terms with specific public
broadcasting entities for the use of all of
the copyright owners’ works covered by
the license. Section 118(b)(2) provides
that such license agreements ‘‘shall be
given effect in lieu of any determination
by the . . . Copyright Royalty Judges,’’
provided that copies of the agreement
are submitted to the Judges ‘‘within 30
days of execution.’’ 17 U.S.C. 118(b)(2).
The Judges received five agreements in
this category for which no further action
was required.3
Second, copyright owners and public
broadcasting entities may negotiate rates
and terms for categories of copyrighted
works and uses that would be binding
on all owners and entities using the
same license and submit them to the
Judges for approval. Section
801(b)(7)(A) of the Copyright Act
authorizes the Judges to adopt rates and
terms negotiated by ‘‘some or all of the
participants in a proceeding at any time
1 The Judges received no notice of settlement or
proposed rates and terms from participant David
Powell.
2 A ‘‘public broadcasting entity’’ is defined as a
‘‘noncommercial educational broadcast station as
defined in section 397 of title 47 and any nonprofit
institution or organization engaged in the activities
described in paragraph (2) of subsection (c)’’ of
section 118. 17 U.S.C. 118(f).
3 The Judges received agreements with PBE from
BMI, HFA, SESAC, ASCAP, and GMR on October
29, 2021; November 2, 2021; November 2, 2021;
January 28, 2022; and December 29, 2022,
respectively.
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41827
during the proceeding’’ provided they
are submitted to the Judges for approval.
This section states that the Judges shall:
(1) provide an opportunity to comment
on the agreement to non-participants
who would be bound by the terms,
rates, or other determination set by the
agreement; and (2) provide an
opportunity to comment and to object to
participants in the proceeding who
would be bound by the terms, rates, or
other determination set by the
agreement. See section 801(b)(7)(A). The
Judges may decline to adopt the
agreement as a basis for statutory terms
and rates for participants not party to
the agreement if any participant objects
and the Judges conclude that the
agreement does not provide a reasonable
basis for setting statutory terms or rates.
Id.
The Judges received negotiated rates
and terms from ASCAP (Jul. 2, 2021),
BMI (May 17, 2021), GMR (Sept. 9,
2021), and SESAC (Sept. 3, 2021), and
jointly from all four (Dec. 7, 2022)
regarding rates for compositions in their
repertories by certain public
broadcasters; 4 and from NRBNMLC
jointly with ASCAP (Sept. 9, 2021), BMI
(Sept. 10, 2021), GMR (Sept. 9, 2021,
and Dec. 7, 2022), SESAC (Sept. 10,
2021), and HFA (June 21, 2021)
regarding rates for compositions in their
repertories by certain other public
broadcasters. The Judges received joint
proposals from PBE and HFA regarding
the fees in § 381.7 (Dec. 12, 2022); from
CPB, NPR, and PBS regarding the
provisions of § 381.4 (Dec. 30, 2022);
and from CPB and PBS regarding the
rates in § 381.8 (Jan. 5, 2023).
The Judges published the
aforementioned settlements in the
Federal Register for comment on
January 26, 2023. 88 FR 4928. Members
of the public could comment on, and
participants in this rate proceeding
could comment on and object to, any or
all of the proposed regulations and a
proposed technical revision.5 Id.
Statutory Standard and Precedent
Pursuant to section 801(b)(7)(A) of the
Copyright Act, the Judges have the
authority to adopt settlements between
some or all of the participants to a
proceeding at any time during a
proceeding. This section states that the
Judges shall: (1) provide an opportunity
4 The joint proposal aggregates the separate
proposals and is to be considered in place of them.
See Dec. 7, 2022 Joint Proposal at 1 n.1.
5 The Judges’ January 26, 2023 Federal Register
document proposed technical revisions to
§§ 381.7(e) and 381.8(e)(1) to require online filing
of cue sheets or summaries in lieu of submissions
of electronic copies on compact disk or floppy
diskette.
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to comment on the agreement to nonparticipants who would be bound by the
terms, rates, or other determination set
by the agreement; and (2) provide an
opportunity to comment and to object to
participants in the proceeding who
would be bound by the terms, rates, or
other determination set by the
agreement. See section 801(b)(7)(A). The
Judges may decline to adopt the
agreement as a basis for statutory terms
and rates for participants not party to
the agreement if any participant objects
and the Judges conclude that the
agreement does not provide a reasonable
basis for setting statutory terms or rates.
Id.
Regardless of the comments of
interested parties or participants, the
Judges are not compelled to adopt a
settlement to the extent it includes
provisions that are inconsistent with the
statutory license. See Review of
Copyright Royalty Judges
Determination, 74 FR 4537, 4540 (Jan.
26, 2009) (error for Judges to adopt
settlement without threshold
determination of legality); see also
Review of Copyright Royalty Judges
Determination, 73 FR 9143, 9146 (Feb.
19, 2008) (error not to set separate rates
as required under sections 112 and 114
when parties’ unopposed settlement
combined rates in contravention of
those statutory sections).6
As the Register of Copyrights
(Register) observed in the 2009 review
of the Judges’ decision, nothing in the
statute precludes rejection of any
portions of a settlement that would be
contrary to provisions of the applicable
license or otherwise contrary to the
statute. 74 FR 4540. In the instance
under review by the Register, the
settlement agreement purported to alter
the date(s) for payment of royalties
granting licensees a longer period than
section 115 provided. Id. at 4542. The
Register also noted that nothing in the
statute relating to adoption of
settlements precludes the Judges from
considering comments of nonparticipants ‘‘which argue that proposed
[settlement] provisions are contrary to
statutory law.’’ Id. at 4540.
The Judges received one comment
from Jacob Eisenmann. Mr. Eisenmann
questions whether the joint proposal of
ASCAP, BMI, GMR, and SESAC, which
proposes to modify the royalty rates set
forth in § 381.5 through a term
6 The Register found that a ‘‘paucity of evidence’’
in the record to support a determination of separate
rates for the separate licenses ‘‘does not dispatch
the . . . Judges’ statutory obligations.’’ Review of
Copyright Royalty Judges Determination, 73 FR
9143, 9145 (Feb. 19, 2008). The Register noted that
the Judges have subpoena power to compel
witnesses to appear and give testimony. Id.
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providing rate options for licensed use
of compositions in the GMR repertory
by certain entities broadcasting
primarily in a religious format, is in
violation of the Establishment Clause of
the First Amendment to the
Constitution. Eisenmann Comment at 1–
2. Mr. Eisenmann acknowledges that the
history of the interpretation of the
Establishment Clause is extensive, and
points to Lynch v. Donnelly, 465 U.S.
668 (1984), as an analytical framework
for determining whether the challenged
rates violate the Establishment Clause.
Id. Mr. Eisenmann offers a perfunctory
analysis in which he suggests that the
provision regarding rates for
compositions in the GMR repertory by
certain entities broadcasting primarily
in a religious format violates the
Establishment Clause. Id.
While the Judges may refuse to adopt
a settlement that is inconsistent with the
statutory license or otherwise contrary
to law, the Judges do not find the
challenged provisions regarding the
GMR repertory to be contrary to law.
Lynch v. Donnelly notes that there is no
single test or criterion for the linedrawing process regarding
Establishment Clause concerns of the
sort suggested by Mr. Eisenmann, but
directs inquiry as to whether a
challenged action has a secular purpose,
and whether the action impermissibly
has a principal or primary effect to
advance religion or creates excessive
entanglement between religion and
government. Lynch v. Donnelly, 465
U.S. at 679.
The Judges are directed to 17 U.S.C.
801(b)(7)(A) to consider whether a
settlement agreement provides a
reasonable basis for setting statutory
terms or rates, and to do so based on the
record before them if one exists. The
arrival upon and submission of
settlements, axiomatically, may be
driven in part to avoid costly and
uncertain litigation, a motivation that is
secular in nature, and the settlement at
issue addressed a range of uses and
users of GMR repertory. Furthermore,
the setting of rates and terms, as well as
the provisions of Chapter 8 of the
Copyright Act, which facilitate and
encourage parties to enter into
settlement negotiations, serve a secular
purpose.
The Judges note that the challenged
rates and terms, which were proposed
by GMR, apply solely to the GMR
repertory. Furthermore, the Judges
observe that the challenged rates and
terms address genres of music used
under the license and the primary genre
format of a licensee, without delineation
of any particular religion. Under the
totality of the circumstances, the Judges
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do not find that the challenged
provisions impermissibly advance
religion or create excessive
entanglement between religion and
government.
In addition to finding that the
challenged rates are not prohibited
under the Establishment Clause, the
Judges disagree with Mr. Eisenmann’s
assertion that the challenged rates
promote any specific religion either in
purpose or effect. By the plain language,
the provisions address ‘‘stations
broadcasting primarily in a religious
format’’ and include a parenthetical
language noting that the classification is
‘‘without limitation’’ particularly in
relation to several identified genres of
music.
For the reasons set forth herein, and
on the basis of the entirety of the record
before them, the Judges find that
adoption of the challenged rates, the
product of a settlement applicable to the
repertory of the proponent copyright
owner, adequately serves a secular
purpose and does not impermissibly
advance religion or create excessive
entanglement between religion and
government. In addition, the Judges note
the perfunctory nature of Mr.
Eisenmann’s comment and legal
analysis, from which the Judges cannot
ascertain a basis for rejecting the
settlement on constitutional grounds.
The Judges adopt the rates and terms
and technical revision as proposed.
List of Subjects in 37 CFR Part 381
Copyright, Music, Radio, Rates,
Television.
For the reasons set forth in the
preamble, the Copyright Royalty Judges
amend 37 CFR part 381 as follows:
PART 381—USE OF CERTAIN
COPYRIGHTED WORKS IN
CONNECTION WITH
NONCOMMERCIAL EDUCATIONAL
BROADCASTING
1. The authority citation for part 381
continues to read as follows:
■
Authority: 17 U.S.C. 118, 801(b)(1) and
803.
§ 381.1
[Amended]
2. In § 381.1, remove the years ‘‘2018’’
and ‘‘2022’’ and add in their places the
years ‘‘2023’’ and ‘‘2027’’, respectively.
■ 3. In § 381.4, revise paragraphs (a) and
(c) to read as follows:
■
§ 381.4 Performance of musical
compositions by PBS, NPR and other public
broadcasting entities engaged in the
activities set forth in 17 U.S.C. 118(c).
(a) Determination of royalty rate. The
following rates and terms shall apply to
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the performance by the Public
Broadcasting Service (PBS), National
Public Radio (NPR), and other public
broadcasting entities engaged in
activities set forth in 17 U.S.C. 118(c) of
copyrighted published nondramatic
musical compositions, except for public
broadcasting entities covered by
§§ 381.5 and 381.6, and except for
compositions which are the subject of
voluntary license agreements: The
royalty shall be $1.
*
*
*
*
*
(c) Records of use. PBS and NPR shall,
upon the request of a copyright owner
of a published musical work who
believes a musical composition of such
owner has been performed under the
terms of the schedule established in
paragraph (a) of this section, permit
such copyright owner a reasonable
opportunity to examine their standard
cue sheets listing the nondramatic
performances of musical compositions
on PBS and NPR programs. Any local
PBS and NPR station that shall be
required by the provisions of any
voluntary license agreement with
American Society of Authors,
Composers and Publishers (ASCAP),
Broadcast Music, Inc. (BMI), Global
Music Rights, LLC (GMR), or SESAC
Performing Rights, LLC (SESAC)
covering the license period January 1,
2023, to December 31, 2027, to provide
a music use report shall, upon request
of a copyright owner who believes a
musical composition of such owner has
been performed under the terms of the
schedule established in paragraph (a),
41829
permit such copyright owner to examine
the report.
4. In § 381.5, revise paragraphs (c)
through (e) to read as follows:
■
§ 381.5 Performance of musical
compositions by public broadcasting
entities licensed to colleges and
universities.
*
*
*
*
*
(c) Royalty rate. A public broadcasting
entity within the scope of this section
may perform published nondramatic
musical compositions subject to the
following schedule of royalty rates:
(1) For all such compositions in the
repertory of ASCAP, the royalty rates
shall be as follows:
(i) Music fees.
TABLE 1 TO PARAGRAPH (c)(1)(i)
Number of full-time students
Level
Level
Level
Level
Level
1
2
3
4
5
...............
...............
...............
...............
...............
2023
<1,000 ....................................................................................................
1,000–4,999 ...........................................................................................
5,000–9,999 ...........................................................................................
10,000–19,999 .......................................................................................
20,000+ ..................................................................................................
(ii) Fees for stations with an
authorized effective radiated power
(ERP) of 100 Watts or less. Level 1 rates
as set forth in paragraph (c)(1)(i) of this
section, shall also apply to College
Radio Stations with an authorized ERP,
$390
451
619
801
1,009
2024
$400
463
635
822
1,035
2025
$410
475
652
843
1,062
2026
$421
487
669
865
1,090
2027
$432
500
686
887
1,118
(2) For all such compositions in the
repertory of BMI, the royalty rates shall
be as follows:
(i) Music fees.
as that term is defined in 47 CFR
73.310(a), of 100 Watts or less, as
specified on its current Federal
Communications Commission (FCC)
license, regardless of the size of the
student population.
TABLE 2 TO PARAGRAPH (c)(2)(i)
Number of full-time students
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Level
Level
Level
Level
Level
1
2
3
4
5
...............
...............
...............
...............
...............
<1,000 ....................................................................................................
1,000–4,999 ...........................................................................................
5,000–9,999 ...........................................................................................
10,000–19,999 .......................................................................................
20,000+ ..................................................................................................
(ii) Fees for stations with an
authorized ERP of 100 Watts or less.
Level 1 rates, as set forth in paragraph
(c)(2)(i) of this section, shall also apply
to College Radio Stations with an
authorized ERP, as that term is defined
in 47 CFR 73.310(a), of 100 Watts or
less, as specified on its current FCC
license, regardless of the size of the
student population.
(3) For all such compositions in the
repertory of SESAC, the royalty rates
shall be as follows:
(i) 2023: The 2022 rate, subject to an
annual cost of living adjustment in
accordance with paragraph (c)(3)(vi) of
this section.
(ii) 2024: The 2023 rate, subject to an
annual cost of living adjustment in
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accordance with paragraph (c)(3)(vi) of
this section.
(iii) 2025: The 2024 rate, subject to an
annual cost of living adjustment in
accordance with paragraph (c)(3)(vi) of
this section.
(iv) 2026: The 2025 rate, subject to an
annual cost of living adjustment in
accordance with paragraph (c)(3)(vi) of
this section.
(v) 2027: The 2026 rate, subject to an
annual cost of living adjustment in
accordance with paragraph (c)(3)(vi) of
this section.
(vi) Such cost of living adjustment to
be made in accordance with the greater
of: (A) The change, if any, in the
Consumer Price Index (all consumers,
all items) published by the U.S.
Department of Labor, Bureau of Labor
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$390
451
619
801
1,009
2024
$400
463
635
822
1,035
2025
$410
475
652
843
1,062
2026
$421
487
669
865
1,090
2027
$432
500
686
887
1,118
Statistics, during the twelve (12) month
period from the most recent Index,
published before December 1 of the year
immediately prior to the applicable
year; or
(B) One and one-half percent (1.5%).
(4) For all such compositions in the
repertory of GMR, the royalty rates shall
be as follows:
(i) 2023: $174.00 per station, subject
to an annual cost of living adjustment in
accordance with § 381.10.
(ii) 2024: The 2023 rate, subject to an
annual cost of living adjustment in
accordance with § 381.10.
(iii) 2025: The 2024 rate, subject to an
annual cost of living adjustment in
accordance with § 381.10.
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(iv) 2026: The 2025 rate, subject to an
annual cost of living adjustment in
accordance with § 381.10.
(v) 2027: The 2026 rate, subject to an
annual cost of living adjustment in
accordance with § 381.10.
(vi) For stations broadcasting
primarily in a religious format
(including, without limitation,
Contemporary Christian music, praise
and worship, Gospel, Southern Gospel,
Spanish religious music, inspirational,
religious, etc.), at their option for 2023–
2027, either the rates set forth in
paragraph (c)(4) of this section or the
rates set forth in § 381.6(d)(4).
(5) For the performance of all other
such compositions: $1.
(d) Payment of royalty rate. The
public broadcasting entity shall pay the
required royalty rate to ASCAP, BMI,
SESAC, and GMR not later than January
31 of each year. Each annual payment
to ASCAP, BMI, SESAC, and GMR shall
be accompanied by a signed declaration
stating the number of full-time students
enrolled in the educational entity
operating the station and/or the ERP as
specified in its current FCC license. An
exact copy of such declaration shall be
furnished to each of ASCAP, BMI,
SESAC, and GMR.
(e) Records of use. A public
broadcasting entity subject to this
section shall furnish to ASCAP, BMI,
SESAC, and GMR upon request, a
music-use report during one week of
each calendar year. ASCAP, BMI,
SESAC, and GMR shall not in any one
calendar year request more than 10
stations to furnish such reports.
5. Amend § 381.6 by revising
paragraphs (d) through (f) to read as
follows:
■
§ 381.6 Performance of musical
compositions by other public broadcasting
entities.
*
*
*
*
*
(d) Royalty rate. A public
broadcasting entity within the scope of
this section may perform published
nondramatic musical compositions
subject to the following schedule of
royalty rates:
(1) For all such compositions in the
repertory of ASCAP, the royalty rates
shall be as follows:
(i) Music fees for stations with 20% or
more programming containing Feature
Music are as follows:
TABLE 1 TO PARAGRAPH (d)(1)(i)
Calendar years
Population count
2023
Level
Level
Level
Level
Level
Level
Level
Level
Level
1
2
3
4
5
6
7
8
9
...............
...............
...............
...............
...............
...............
...............
...............
...............
0–24,999 ................................................................................................
25,000–249,999 .....................................................................................
250,000–499,999 ...................................................................................
500,000–999,999 ...................................................................................
1,000,000–1,499,999 .............................................................................
1,500,000–1,999,999 .............................................................................
2,000,000–2,499,999 .............................................................................
2,500,000–2,999,999 .............................................................................
3,000,000 and above .............................................................................
$574
754
1,346
2,017
2,691
3,363
4,035
4,708
6,726
2024
2025
$585
769
1,373
2,057
2,745
3,430
4,116
4,802
6,861
$597
784
1,400
2,098
2,800
3,499
4,198
4,898
6,998
2026
$609
800
1,428
2,140
2,856
3,569
4,282
4,996
7,138
2027
$621
816
1,457
2,183
2,913
3,640
4,368
5,096
7,280
(ii) Talk Format Station fees for
stations with <20% Feature Music
programming are as follows:
TABLE 2 TO PARAGRAPH (d)(1)(ii)
Calendar years
Population count
2023
Level
Level
Level
Level
Level
Level
Level
Level
Level
1
2
3
4
5
6
7
8
9
...............
...............
...............
...............
...............
...............
...............
...............
...............
0–24,999 ................................................................................................
25,000–249,999 .....................................................................................
250,000–499,999 ...................................................................................
500,000–999,999 ...................................................................................
1,000,000–1,499,999 .............................................................................
1,500,000–1,999,999 .............................................................................
2,000,000–2,499,999 .............................................................................
2,500,000–2,999,999 .............................................................................
3,000,000 and above .............................................................................
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(2) For all such compositions in the
repertory of BMI, the royalty rates shall
be as follows:
$265
574
574
574
942
1,177
1,412
1,647
2,354
2024
2025
$270
585
585
585
961
1,201
1,440
1,680
2,401
$276
597
597
597
980
1,225
1,469
1,714
2,449
2026
$281
609
609
609
1,000
1,249
1,498
1,748
2,498
2027
$287
621
621
621
1,020
1,274
1,528
1,783
2,548
(i) Music fees for stations with 20% or
more programming containing Feature
Music are as follows:
TABLE 3 TO PARAGRAPH (d)(2)(i)
Calendar years
Population count
2023
Level 1 ...............
Level 2 ...............
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0–24,999 ................................................................................................
25,000–249,999 .....................................................................................
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$574
754
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2024
$585
769
28JNR1
2025
$597
784
2026
$609
800
2027
$621
816
Federal Register / Vol. 88, No. 123 / Wednesday, June 28, 2023 / Rules and Regulations
41831
TABLE 3 TO PARAGRAPH (d)(2)(i)—Continued
Calendar years
Population count
2023
Level
Level
Level
Level
Level
Level
Level
3
4
5
6
7
8
9
...............
...............
...............
...............
...............
...............
...............
250,000–499,999 ...................................................................................
500,000–999,999 ...................................................................................
1,000,000–1,499,999 .............................................................................
1,500,000–1,999,999 .............................................................................
2,000,000–2,499,999 .............................................................................
2,500,000–2,999,999 .............................................................................
3,000,000 and above .............................................................................
1,346
2,017
2,691
3,363
4,035
4,708
6,726
2024
2025
1,373
2,057
2,745
3,430
4,116
4,802
6,861
1,400
2,098
2,800
3,499
4,198
4,898
6,998
2026
1,428
2,140
2,856
3,569
4,282
4,996
7,138
2027
1,457
2,183
2,913
3,640
4,368
5,096
7,280
(ii) Talk Format Station fees for
stations with <20% Feature Music
programming are as follows:
TABLE 4 TO PARAGRAPH (d)(2)(ii)
Calendar years
Population count
2023
Level
Level
Level
Level
Level
Level
Level
Level
Level
1
2
3
4
5
6
7
8
9
...............
...............
...............
...............
...............
...............
...............
...............
...............
0–24,999 ................................................................................................
25,000–249,999 .....................................................................................
250,000–499,999 ...................................................................................
500,000–999,999 ...................................................................................
1,000,000–1,499,999 .............................................................................
1,500,000–1,999,999 .............................................................................
2,000,000–2,499,999 .............................................................................
2,500,000–2,999,999 .............................................................................
3,000,000 and above .............................................................................
(3) For all such compositions in the
repertory of SESAC, the royalty rates
shall be as follows:
$265
574
574
574
942
1,177
1,412
1,647
2,354
2024
$270
585
585
585
961
1,201
1,440
1,680
2,401
2025
$276
597
597
597
980
1,225
1,469
1,714
2,449
2026
$281
609
609
609
1,000
1,249
1,498
1,748
2,498
2027
$287
621
621
621
1,020
1,274
1,528
1,783
2,548
(i) Music fees for stations with 20% or
more programming containing Feature
Music are as follows:
TABLE 5 TO PARAGRAPH (d)(3)(i)
Population count
Level
Level
Level
Level
Level
Level
Level
Level
Level
1
2
3
4
5
6
7
8
9
...............
...............
...............
...............
...............
...............
...............
...............
...............
2023
0–24,999 ................................................................................................
25,000–249,999 .....................................................................................
250,000–499,999 ...................................................................................
500,000–999,999 ...................................................................................
1,000,000–1,499,999 .............................................................................
1,500,000–1,999,999 .............................................................................
2,000,000–2,499,999 .............................................................................
2,500,000–2,999,999 .............................................................................
3,000,000 and above .............................................................................
$189
189
315
473
630
789
945
1,104
1,577
2024
$192
192
321
482
643
805
964
1,126
1,608
2025
$196
196
328
492
656
821
983
1,149
1,640
2026
$200
200
334
502
669
837
1,003
1,172
1,673
2027
$204
204
341
512
682
854
1,023
1,195
1,707
(ii) Talk Format Station fees for
stations with <20% Feature Music
programming are as follows:
TABLE 6 TO PARAGRAPH (d)(3)(ii)
ddrumheller on DSK120RN23PROD with RULES1
Population count
Level
Level
Level
Level
Level
Level
Level
Level
Level
1
2
3
4
5
6
7
8
9
...............
...............
...............
...............
...............
...............
...............
...............
...............
VerDate Sep<11>2014
2023
0–24,999 ................................................................................................
25,000–249,999 .....................................................................................
250,000–499,999 ...................................................................................
500,000–999,999 ...................................................................................
1,000,000–1,499,999 .............................................................................
1,500,000–1,999,999 .............................................................................
2,000,000–2,499,999 .............................................................................
2,500,000–2,999,999 .............................................................................
3,000,000 and above .............................................................................
17:09 Jun 27, 2023
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$130
189
189
189
221
276
331
386
552
E:\FR\FM\28JNR1.SGM
2024
$133
192
192
192
225
282
337
394
563
28JNR1
2025
$135
196
196
196
229
287
344
402
574
2026
$138
200
200
200
234
293
351
410
586
2027
$141
204
204
204
239
299
358
418
597
ddrumheller on DSK120RN23PROD with RULES1
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Federal Register / Vol. 88, No. 123 / Wednesday, June 28, 2023 / Rules and Regulations
(4) For all such compositions in the
repertory of GMR, the royalty rates shall
be as follows:
(i) For a public broadcasting entity
within the scope of this section that is
broadcasting one or more radio stations
as of January 1, 2023, a single $50 fee
for each such station for the entire fiveyear license term from 2023 through
2027; and
(ii) For a public broadcasting entity
within the scope of this section that
begins broadcasting a radio station after
January 1, 2023, but before December
31, 2027, a pro-rated amount equal to
$10 multiplied by the number of full or
partial years remaining in the 2023–
2027 license term as of the date on
which the radio station begins
broadcasting (e.g., a public broadcasting
entity that begins broadcasting a radio
station in 2025 shall pay $30 for that
station for the remainder of the term).
(5) For the performance of all other
such compositions, from 2023 through
2027: $1.
(e) Payment of royalty rate—(1)
ASCAP, BMI, and SESAC. The public
broadcasting entity shall pay the
required royalty rate to ASCAP, BMI,
and SESAC not later than January 31 of
each year. Each annual payment shall be
accompanied by a signed declaration
stating the Population Count of the
public broadcasting entity and the
source for such Population Count. An
exact copy of such declaration shall be
furnished to each of ASCAP, BMI, and
SESAC. Upon prior written notice
thereof from ASCAP, BMI, or SESAC, a
public broadcasting entity shall make its
books and records relating to its
Population Count available for
inspection. In the event that a public
broadcasting entity wishes to be deemed
a Talk Format Station, then such entity
shall provide a signed declaration
stating that Feature Music is performed
in less than 20% of its annual
programming and that it complies with
the caps set forth in paragraph (b)(4) of
this section. An exact copy of such
declaration shall be furnished to each of
ASCAP, BMI, and SESAC. Upon prior
written notice thereof from ASCAP,
BMI, or SESAC, a public broadcasting
entity shall make its program schedule
or other documentation supporting its
eligibility as a Talk Format Station
available for inspection.
(2) GMR. For fees due pursuant to
paragraph (d)(4)(i) of this section, the
public broadcasting entity shall pay the
required royalty rate to GMR not later
than January 31, 2023. For fees due
pursuant to paragraph (d)(4)(ii) of this
VerDate Sep<11>2014
17:09 Jun 27, 2023
Jkt 259001
section, the public broadcasting entity
shall pay the required royalty rate to
GMR not later than 60 days after the
public broadcasting entity begins to
broadcast the radio station for which
such fee is due. If a fee is paid pursuant
to paragraph (d)(4)(i) or (ii) of this
section for a radio station and that
station changes ownership during the
course of the license term but continues
to fall within the scope of this section,
no additional fee shall be due for that
station during the 2023–2027 license
term.
(f) Records of use. A public
broadcasting entity subject to this
section shall furnish to ASCAP, BMI,
SESAC, and GMR, upon request, a
music-use report during one week of
each calendar year. ASCAP, BMI,
SESAC, and GMR each shall not in any
one calendar year request more than 10
stations to furnish such reports.
■ 6. In § 381.7, revise paragraphs (a)
through (c) and (e) to read as follows:
§ 381.7
Recording rights, rates and terms.
(a) Scope. This section establishes
rates and terms for the recording of
nondramatic performances and displays
of musical works, other than
compositions subject to voluntary
license agreements, on and for the radio
and television programs of public
broadcasting entities, whether or not in
synchronization or timed relationship
with the visual or aural content, and for
the making, reproduction, and
distribution of copies and phonorecords
of public broadcasting programs
containing such nondramatic
performances and displays of musical
works solely for the purpose of
transmission by public broadcasting
entities, including transmission via the
internet by PBS and NPR. The schedule
of rates and terms established in this
section include the making of the
reproductions described in 17 U.S.C.
118(c)(3).
(b) Royalty rate. (1)(i) For uses
described in paragraph (a) of this
section of a musical work in a PBSdistributed program, the royalty fees
shall be calculated by multiplying the
following per-composition rates by the
number of different compositions in that
PBS-distributed program:
2023–
2027
(A) Feature ................................................
(B) Concert feature (per minute) ...............
(C) Background .........................................
(D) Theme:
(1) Single program or first series program ...................................................
PO 00000
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Fmt 4700
Sfmt 4700
$121.07
36.36
61.19
61.19
2023–
2027
(2) Other series program .......................
24.84
(ii) For such uses other than in a PBSdistributed television program, the
royalty fee shall be calculated by
multiplying the following percomposition rates by the number of
different compositions in that program:
2023–
2027
(A) Feature ................................................
(B) Concert feature (per minute) ...............
(C) Background .........................................
(D) Theme:
(1) Single program or first series program ...................................................
(2) Other series program .......................
$10.01
2.63
4.35
4.35
1.73
(iii) In the event the work is first
recorded other than in a PBS-distributed
program, and such program is
subsequently distributed by PBS, an
additional royalty payment shall be
made equal to the difference between
the rate specified in this section for
other than a PBS-distributed program
and the rate specified in this section for
a PBS-distributed program.
(2) For uses licensed under this
section of a musical work in an NPR
program, the royalty fees shall be
calculated by multiplying the following
per-composition rates by the number of
different compositions in any NPR
program distributed by NPR. For
purposes of the schedule established in
this section, ‘‘National Public Radio’’
programs include all programs
produced in whole or in part by NPR,
or by any NPR station or organization
under contract with NPR.
2023–
2027
(i) Feature ..................................................
(ii) Concert feature (per minute) ................
(iii) Background .........................................
(iv) Theme:
(A) Single program or first series program ...................................................
(B) Other series program .......................
$13.11
19.24
6.56
6.56
2.62
(3) For purposes of the schedule
established in this section, a ‘‘concert
feature’’ shall be deemed to be the
nondramatic presentation in a program
of all or part of a symphony, concerto,
or other serious work originally written
for concert performance, or the
nondramatic presentation in a program
of portions of a serious work originally
written for opera performance.
(4) For such uses other than in an
NPR-produced radio program:
E:\FR\FM\28JNR1.SGM
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Federal Register / Vol. 88, No. 123 / Wednesday, June 28, 2023 / Rules and Regulations
2023–
2027
ddrumheller on DSK120RN23PROD with RULES1
(i) Feature ..................................................
(ii) Feature (concert) (per half hour) .........
(iii) Background .........................................
$.83
1.72
.42
(5) The schedule of fees covers use for
a period of three years following the
first use. Succeeding use periods will
require the following additional
payment: Additional one-year period—
25 percent of the initial three-year fee;
second three-year period—50 percent of
the initial three-year fee; each three-year
fee thereafter—25 percent of the initial
three-year fee; provided that a 100
percent additional payment prior to the
expiration of the first three-year period
will cover use during all subsequent use
periods without limitation. Such
succeeding uses which are subsequent
to December 31, 2022, shall be subject
to the schedule of royalty rates
established in this section.
(6) For each use licensed under this
section pursuant to paragraphs (b)(1)(i)
and (b)(2) of this section for
transmission via the internet, the royalty
fees shall include a pro-rata share of
$2,000 per calendar year, which share
shall be determined by calculating the
aggregate amount of royalty fees earned
during that calendar year and dividing
the sum by the amount of royalty fees
earned for each use.
(c) Payment of royalty rates. The
required royalty due under paragraphs
(b)(1), (2), and (4) of this section shall
be paid to each known copyright owner
not later than July 31 of each calendar
year for uses during the first six months
of that calendar year and not later than
January 31 for uses during the last six
months of the preceding calendar year.
The required royalty due under
paragraph (b)(6) of this section for each
calendar year of the statutory license
term shall be paid to each known
copyright owner not later than March 31
of each following year for PBS- or NPRdistributed uses via the internet during
the preceding calendar year.
*
*
*
*
*
(e) Filing of use reports with the
Copyright Royalty Judges: deposit of cue
sheets or summaries. PBS and its
stations, NPR, or other television public
broadcasting entity shall deposit with
the Copyright Royalty Judges via online
filing in eCRB one electronic copy of
their standard music cue sheets or
summaries of same listing the recording
pursuant to the schedule established in
this section of the musical works of
copyright owners. Such cue sheets or
summaries shall be deposited not later
than July 31 of each calendar year for
recordings during the first six months of
the calendar year and not later than
VerDate Sep<11>2014
17:09 Jun 27, 2023
Jkt 259001
January 31 of each calendar year for
recordings during the second six
months of the preceding calendar year.
PBS and NPR shall maintain at their
offices copies of all standard music cue
sheets from which such music use
reports are prepared. Such music cue
sheets shall be furnished to the
Copyright Royalty Judges upon their
request and also shall be available
during regular business hours at the
offices of PBS or NPR for examination
by a copyright owner who believes a
musical composition of such owner has
been recorded pursuant to the schedule.
§ 381.8
[Amended]
Cost of living adjustment.
(a) On or before December 1, 2023, the
Copyright Royalty Judges shall publish
in the Federal Register a notice of the
change in the cost of living as
determined by the Consumer Price
Index (all consumers, all items) during
the period from the most recent Index
published prior to December 1, 2022, to
the most recent Index published prior to
December 1, 2023. On or before each
December 1 thereafter the Copyright
Royalty Judges shall publish a notice of
the change in the cost of living during
the period from the most recent index
published prior to the previous notice to
the most recent Index published prior to
December 1 of that year.
(b) On the same date of the notices
published pursuant to paragraph (a) of
this section, the Copyright Royalty
Judges shall publish in the Federal
Register a revised schedule of the rates
for § 381.5(c)(3) and (4), the rates to be
charged for compositions in the
repertory of SESAC and GMR, which
shall adjust the royalty amounts
established in a dollar amount
according to the greater of:
(1) The change in the cost of living
determined as provided in paragraph (a)
of this section; or
(2) One-and-a-half percent (1.5%).
(3) Such royalty rates shall be fixed at
the nearest dollar.
PO 00000
Frm 00015
Fmt 4700
(c) The adjusted schedule for the rates
for § 381.5(c)(3) and (4) shall become
effective thirty (30) days after
publication in the Federal Register.
Dated: June 9, 2023.
David P. Shaw,
Chief Copyright Royalty Judge.
David R. Strickler,
Copyright Royalty Judge.
Steve Ruwe,
Copyright Royalty Judge.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2023–13668 Filed 6–27–23; 8:45 am]
7. In § 381.8:
a. In paragraph (b)(1) introductory
text, add the words ‘‘not otherwise
licensed by the copyright owner’’ at the
end of the paragraph;
■ b. In paragraphs (b)(1)(i) and (ii), in
the table header, remove the year
‘‘2013–2017’’ and add in its place the
year ‘‘2023–2027’’;
■ c. In paragraph (d)(1), add the text ‘‘,
upon request,’’ after ‘‘shall maintain
and’’; and
■ d. In paragraph (f)(1), remove the year
‘‘2017’’ and add in its place the year
‘‘2027’’.
■ 8. Revise § 381.10 to read as follows:
■
■
§ 381.10
41833
Sfmt 4700
BILLING CODE 1410–72–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 60
[EPA–HQ–OAR–2020–0556; FRL–8335–06–
OAR]
RIN 2060–AV35
Testing Provisions for Air Emission
Sources; Correction
Environmental Protection
Agency (EPA).
ACTION: Final rule; correcting
amendment.
AGENCY:
The Environmental Protection
Agency (EPA) is making a correcting
amendment due to an error in a final
rule that was published in the Federal
Register on March 29, 2023, and became
effective on May 30, 2023. The final rule
corrected and updated regulations for
source testing of emissions.
DATES: Effective June 28, 2023.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2020–0556. All
documents in the docket are listed on
the www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
e.g., confidential business information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the internet and will be
publicly available only in hard copy.
Publicly available docket materials are
available electronically through
www.regulations.gov.
SUMMARY:
Mrs.
Lula H. Melton, Office of Air Quality
Planning and Standards, Air Quality
Assessment Division (E143–02),
Environmental Protection Agency,
Research Triangle Park, NC 27711;
FOR FURTHER INFORMATION CONTACT:
E:\FR\FM\28JNR1.SGM
28JNR1
]]>Agencies
[Federal Register Volume 88, Number 123 (Wednesday, June 28, 2023)]
[Rules and Regulations]
[Pages 41827-41833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13668]
[[Page 41827]]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 381
[Docket No. 21-CRB-0002-PBR (2023-2027)]
Determination of Rates and Terms for Public Broadcasting (PB IV)
AGENCY: Copyright Royalty Board (CRB), Library of Congress.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Copyright Royalty Judges publish final regulations that
set rates and terms for use of certain works in connection with
noncommercial broadcasting for the period from January 1, 2023, through
December 31, 2027.
DATES:
Effective date: June 28, 2023.
Applicability date: These rates and terms are applicable during the
period from January 1, 2023, through December 31, 2027.
ADDRESSES: For access to the docket to read background documents or the
comment received, go to eCRB, the Copyright Royalty Board's electronic
filing and case management system, at https://app.crb.gov/ and search
for docket number 21-CRB-0002-PBR (2023-2027).
FOR FURTHER INFORMATION CONTACT: Anita Brown, CRB Program Specialist,
(202) 707-7658, [email protected].
SUPPLEMENTARY INFORMATION:
Background
Section 118 of the Copyright Act, title 17 of the United States
Code, establishes a statutory license for the use of certain
copyrighted works in connection with noncommercial television and radio
broadcasting. Chapter 8 of the Copyright Act requires the Copyright
Royalty Judges (Judges) to conduct proceedings every five years to
determine the rates and terms for the section 118 license. 17 U.S.C.
801(b)(1), 804(b)(6). In accordance with section 804(b)(6), the Judges
commenced the proceeding to set rates and terms for the period 2023-
2027 on January 5, 2021. 86 FR 325.
In the Federal Register notice, the Judges requested that
interested parties submit petitions to participate. Id. Petitions to
Participate (PTPs) were received from: The American Society of Authors,
Composers and Publishers (ASCAP); SESAC Performing Rights, LLC;
Broadcast Music, Inc. (BMI); Educational Media Foundation (EMF);
Corporation for Public Broadcasting (CPB), National Public Radio (NPR),
and the Public Broadcasting Service (PBS) (jointly, the Public
Broadcasting Entities (PBE)); National Religious Broadcasters
Noncommercial Music License Committee (NRBNMLC); the Church Music
Publishers' Association (CMPA); The Harry Fox Agency (HFA); Global
Music Rights, LLC (GMR); and David Powell.
The Judges set the timetable for the three-month negotiation
period, see 17 U.S.C. 803(b)(3), and directed the participants to
submit written direct statements no later than September 10, 2021.
Notice of Participants, Commencement of Voluntary Negotiation Period,
and Case Scheduling Order (Feb. 9, 2021). The Judges amended the case
schedule four times to accommodate ongoing negotiations. See, e.g.,
Order Granting Joint Motion to Postpone Submission of Written Direct
Statements (Dec. 1, 2021). In July 2021, September 2021, November 2021,
and December 2022 participants filed notices of settlement and proposed
rates and terms for adoption.\1\
---------------------------------------------------------------------------
\1\ The Judges received no notice of settlement or proposed
rates and terms from participant David Powell.
---------------------------------------------------------------------------
There are two ways copyright owners and public broadcasting
entities \2\ may negotiate rates and terms under the section 118
statutory license. First, copyright owners may negotiate rates and
terms with specific public broadcasting entities for the use of all of
the copyright owners' works covered by the license. Section 118(b)(2)
provides that such license agreements ``shall be given effect in lieu
of any determination by the . . . Copyright Royalty Judges,'' provided
that copies of the agreement are submitted to the Judges ``within 30
days of execution.'' 17 U.S.C. 118(b)(2). The Judges received five
agreements in this category for which no further action was
required.\3\
---------------------------------------------------------------------------
\2\ A ``public broadcasting entity'' is defined as a
``noncommercial educational broadcast station as defined in section
397 of title 47 and any nonprofit institution or organization
engaged in the activities described in paragraph (2) of subsection
(c)'' of section 118. 17 U.S.C. 118(f).
\3\ The Judges received agreements with PBE from BMI, HFA,
SESAC, ASCAP, and GMR on October 29, 2021; November 2, 2021;
November 2, 2021; January 28, 2022; and December 29, 2022,
respectively.
---------------------------------------------------------------------------
Second, copyright owners and public broadcasting entities may
negotiate rates and terms for categories of copyrighted works and uses
that would be binding on all owners and entities using the same license
and submit them to the Judges for approval. Section 801(b)(7)(A) of the
Copyright Act authorizes the Judges to adopt 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. This section states that the Judges shall: (1) provide an
opportunity to comment on the agreement to non-participants who would
be bound by the terms, rates, or other determination set by the
agreement; and (2) provide an opportunity to comment and to object to
participants in the proceeding who would be bound by the terms, rates,
or other determination set by the agreement. See section 801(b)(7)(A).
The Judges may decline to adopt the agreement as a basis for statutory
terms and rates for participants not party to the agreement if any
participant objects and the Judges conclude that the agreement does not
provide a reasonable basis for setting statutory terms or rates. Id.
The Judges received negotiated rates and terms from ASCAP (Jul. 2,
2021), BMI (May 17, 2021), GMR (Sept. 9, 2021), and SESAC (Sept. 3,
2021), and jointly from all four (Dec. 7, 2022) regarding rates for
compositions in their repertories by certain public broadcasters; \4\
and from NRBNMLC jointly with ASCAP (Sept. 9, 2021), BMI (Sept. 10,
2021), GMR (Sept. 9, 2021, and Dec. 7, 2022), SESAC (Sept. 10, 2021),
and HFA (June 21, 2021) regarding rates for compositions in their
repertories by certain other public broadcasters. The Judges received
joint proposals from PBE and HFA regarding the fees in Sec. 381.7
(Dec. 12, 2022); from CPB, NPR, and PBS regarding the provisions of
Sec. 381.4 (Dec. 30, 2022); and from CPB and PBS regarding the rates
in Sec. 381.8 (Jan. 5, 2023).
---------------------------------------------------------------------------
\4\ The joint proposal aggregates the separate proposals and is
to be considered in place of them. See Dec. 7, 2022 Joint Proposal
at 1 n.1.
---------------------------------------------------------------------------
The Judges published the aforementioned settlements in the Federal
Register for comment on January 26, 2023. 88 FR 4928. Members of the
public could comment on, and participants in this rate proceeding could
comment on and object to, any or all of the proposed regulations and a
proposed technical revision.\5\ Id.
---------------------------------------------------------------------------
\5\ The Judges' January 26, 2023 Federal Register document
proposed technical revisions to Sec. Sec. 381.7(e) and 381.8(e)(1)
to require online filing of cue sheets or summaries in lieu of
submissions of electronic copies on compact disk or floppy diskette.
---------------------------------------------------------------------------
Statutory Standard and Precedent
Pursuant to section 801(b)(7)(A) of the Copyright Act, the Judges
have the authority to adopt settlements between some or all of the
participants to a proceeding at any time during a proceeding. This
section states that the Judges shall: (1) provide an opportunity
[[Page 41828]]
to comment on the agreement to non-participants who would be bound by
the terms, rates, or other determination set by the agreement; and (2)
provide an opportunity to comment and to object to participants in the
proceeding who would be bound by the terms, rates, or other
determination set by the agreement. See section 801(b)(7)(A). The
Judges may decline to adopt the agreement as a basis for statutory
terms and rates for participants not party to the agreement if any
participant objects and the Judges conclude that the agreement does not
provide a reasonable basis for setting statutory terms or rates. Id.
Regardless of the comments of interested parties or participants,
the Judges are not compelled to adopt a settlement to the extent it
includes provisions that are inconsistent with the statutory license.
See Review of Copyright Royalty Judges Determination, 74 FR 4537, 4540
(Jan. 26, 2009) (error for Judges to adopt settlement without threshold
determination of legality); see also Review of Copyright Royalty Judges
Determination, 73 FR 9143, 9146 (Feb. 19, 2008) (error not to set
separate rates as required under sections 112 and 114 when parties'
unopposed settlement combined rates in contravention of those statutory
sections).\6\
---------------------------------------------------------------------------
\6\ The Register found that a ``paucity of evidence'' in the
record to support a determination of separate rates for the separate
licenses ``does not dispatch the . . . Judges' statutory
obligations.'' Review of Copyright Royalty Judges Determination, 73
FR 9143, 9145 (Feb. 19, 2008). The Register noted that the Judges
have subpoena power to compel witnesses to appear and give
testimony. Id.
---------------------------------------------------------------------------
As the Register of Copyrights (Register) observed in the 2009
review of the Judges' decision, nothing in the statute precludes
rejection of any portions of a settlement that would be contrary to
provisions of the applicable license or otherwise contrary to the
statute. 74 FR 4540. In the instance under review by the Register, the
settlement agreement purported to alter the date(s) for payment of
royalties granting licensees a longer period than section 115 provided.
Id. at 4542. The Register also noted that nothing in the statute
relating to adoption of settlements precludes the Judges from
considering comments of non-participants ``which argue that proposed
[settlement] provisions are contrary to statutory law.'' Id. at 4540.
The Judges received one comment from Jacob Eisenmann. Mr. Eisenmann
questions whether the joint proposal of ASCAP, BMI, GMR, and SESAC,
which proposes to modify the royalty rates set forth in Sec. 381.5
through a term providing rate options for licensed use of compositions
in the GMR repertory by certain entities broadcasting primarily in a
religious format, is in violation of the Establishment Clause of the
First Amendment to the Constitution. Eisenmann Comment at 1-2. Mr.
Eisenmann acknowledges that the history of the interpretation of the
Establishment Clause is extensive, and points to Lynch v. Donnelly, 465
U.S. 668 (1984), as an analytical framework for determining whether the
challenged rates violate the Establishment Clause. Id. Mr. Eisenmann
offers a perfunctory analysis in which he suggests that the provision
regarding rates for compositions in the GMR repertory by certain
entities broadcasting primarily in a religious format violates the
Establishment Clause. Id.
While the Judges may refuse to adopt a settlement that is
inconsistent with the statutory license or otherwise contrary to law,
the Judges do not find the challenged provisions regarding the GMR
repertory to be contrary to law. Lynch v. Donnelly notes that there is
no single test or criterion for the line-drawing process regarding
Establishment Clause concerns of the sort suggested by Mr. Eisenmann,
but directs inquiry as to whether a challenged action has a secular
purpose, and whether the action impermissibly has a principal or
primary effect to advance religion or creates excessive entanglement
between religion and government. Lynch v. Donnelly, 465 U.S. at 679.
The Judges are directed to 17 U.S.C. 801(b)(7)(A) to consider
whether a settlement agreement provides a reasonable basis for setting
statutory terms or rates, and to do so based on the record before them
if one exists. The arrival upon and submission of settlements,
axiomatically, may be driven in part to avoid costly and uncertain
litigation, a motivation that is secular in nature, and the settlement
at issue addressed a range of uses and users of GMR repertory.
Furthermore, the setting of rates and terms, as well as the provisions
of Chapter 8 of the Copyright Act, which facilitate and encourage
parties to enter into settlement negotiations, serve a secular purpose.
The Judges note that the challenged rates and terms, which were
proposed by GMR, apply solely to the GMR repertory. Furthermore, the
Judges observe that the challenged rates and terms address genres of
music used under the license and the primary genre format of a
licensee, without delineation of any particular religion. Under the
totality of the circumstances, the Judges do not find that the
challenged provisions impermissibly advance religion or create
excessive entanglement between religion and government.
In addition to finding that the challenged rates are not prohibited
under the Establishment Clause, the Judges disagree with Mr.
Eisenmann's assertion that the challenged rates promote any specific
religion either in purpose or effect. By the plain language, the
provisions address ``stations broadcasting primarily in a religious
format'' and include a parenthetical language noting that the
classification is ``without limitation'' particularly in relation to
several identified genres of music.
For the reasons set forth herein, and on the basis of the entirety
of the record before them, the Judges find that adoption of the
challenged rates, the product of a settlement applicable to the
repertory of the proponent copyright owner, adequately serves a secular
purpose and does not impermissibly advance religion or create excessive
entanglement between religion and government. In addition, the Judges
note the perfunctory nature of Mr. Eisenmann's comment and legal
analysis, from which the Judges cannot ascertain a basis for rejecting
the settlement on constitutional grounds.
The Judges adopt the rates and terms and technical revision as
proposed.
List of Subjects in 37 CFR Part 381
Copyright, Music, Radio, Rates, Television.
For the reasons set forth in the preamble, the Copyright Royalty
Judges amend 37 CFR part 381 as follows:
PART 381--USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH
NONCOMMERCIAL EDUCATIONAL BROADCASTING
0
1. The authority citation for part 381 continues to read as follows:
Authority: 17 U.S.C. 118, 801(b)(1) and 803.
Sec. 381.1 [Amended]
0
2. In Sec. 381.1, remove the years ``2018'' and ``2022'' and add in
their places the years ``2023'' and ``2027'', respectively.
0
3. In Sec. 381.4, revise paragraphs (a) and (c) to read as follows:
Sec. 381.4 Performance of musical compositions by PBS, NPR and other
public broadcasting entities engaged in the activities set forth in 17
U.S.C. 118(c).
(a) Determination of royalty rate. The following rates and terms
shall apply to
[[Page 41829]]
the performance by the Public Broadcasting Service (PBS), National
Public Radio (NPR), and other public broadcasting entities engaged in
activities set forth in 17 U.S.C. 118(c) of copyrighted published
nondramatic musical compositions, except for public broadcasting
entities covered by Sec. Sec. 381.5 and 381.6, and except for
compositions which are the subject of voluntary license agreements: The
royalty shall be $1.
* * * * *
(c) Records of use. PBS and NPR shall, upon the request of a
copyright owner of a published musical work who believes a musical
composition of such owner has been performed under the terms of the
schedule established in paragraph (a) of this section, permit such
copyright owner a reasonable opportunity to examine their standard cue
sheets listing the nondramatic performances of musical compositions on
PBS and NPR programs. Any local PBS and NPR station that shall be
required by the provisions of any voluntary license agreement with
American Society of Authors, Composers and Publishers (ASCAP),
Broadcast Music, Inc. (BMI), Global Music Rights, LLC (GMR), or SESAC
Performing Rights, LLC (SESAC) covering the license period January 1,
2023, to December 31, 2027, to provide a music use report shall, upon
request of a copyright owner who believes a musical composition of such
owner has been performed under the terms of the schedule established in
paragraph (a), permit such copyright owner to examine the report.
0
4. In Sec. 381.5, revise paragraphs (c) through (e) to read as
follows:
Sec. 381.5 Performance of musical compositions by public broadcasting
entities licensed to colleges and universities.
* * * * *
(c) Royalty rate. A public broadcasting entity within the scope of
this section may perform published nondramatic musical compositions
subject to the following schedule of royalty rates:
(1) For all such compositions in the repertory of ASCAP, the
royalty rates shall be as follows:
(i) Music fees.
Table 1 to Paragraph (c)(1)(i)
----------------------------------------------------------------------------------------------------------------
Number of full-time
students 2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... <1,000.................... $390 $400 $410 $421 $432
Level 2........................... 1,000-4,999............... 451 463 475 487 500
Level 3........................... 5,000-9,999............... 619 635 652 669 686
Level 4........................... 10,000-19,999............. 801 822 843 865 887
Level 5........................... 20,000+................... 1,009 1,035 1,062 1,090 1,118
----------------------------------------------------------------------------------------------------------------
(ii) Fees for stations with an authorized effective radiated power
(ERP) of 100 Watts or less. Level 1 rates as set forth in paragraph
(c)(1)(i) of this section, shall also apply to College Radio Stations
with an authorized ERP, as that term is defined in 47 CFR 73.310(a), of
100 Watts or less, as specified on its current Federal Communications
Commission (FCC) license, regardless of the size of the student
population.
(2) For all such compositions in the repertory of BMI, the royalty
rates shall be as follows:
(i) Music fees.
Table 2 to Paragraph (c)(2)(i)
----------------------------------------------------------------------------------------------------------------
Number of full-time
students 2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... <1,000.................... $390 $400 $410 $421 $432
Level 2........................... 1,000-4,999............... 451 463 475 487 500
Level 3........................... 5,000-9,999............... 619 635 652 669 686
Level 4........................... 10,000-19,999............. 801 822 843 865 887
Level 5........................... 20,000+................... 1,009 1,035 1,062 1,090 1,118
----------------------------------------------------------------------------------------------------------------
(ii) Fees for stations with an authorized ERP of 100 Watts or less.
Level 1 rates, as set forth in paragraph (c)(2)(i) of this section,
shall also apply to College Radio Stations with an authorized ERP, as
that term is defined in 47 CFR 73.310(a), of 100 Watts or less, as
specified on its current FCC license, regardless of the size of the
student population.
(3) For all such compositions in the repertory of SESAC, the
royalty rates shall be as follows:
(i) 2023: The 2022 rate, subject to an annual cost of living
adjustment in accordance with paragraph (c)(3)(vi) of this section.
(ii) 2024: The 2023 rate, subject to an annual cost of living
adjustment in accordance with paragraph (c)(3)(vi) of this section.
(iii) 2025: The 2024 rate, subject to an annual cost of living
adjustment in accordance with paragraph (c)(3)(vi) of this section.
(iv) 2026: The 2025 rate, subject to an annual cost of living
adjustment in accordance with paragraph (c)(3)(vi) of this section.
(v) 2027: The 2026 rate, subject to an annual cost of living
adjustment in accordance with paragraph (c)(3)(vi) of this section.
(vi) Such cost of living adjustment to be made in accordance with
the greater of: (A) The change, if any, in the Consumer Price Index
(all consumers, all items) published by the U.S. Department of Labor,
Bureau of Labor Statistics, during the twelve (12) month period from
the most recent Index, published before December 1 of the year
immediately prior to the applicable year; or
(B) One and one-half percent (1.5%).
(4) For all such compositions in the repertory of GMR, the royalty
rates shall be as follows:
(i) 2023: $174.00 per station, subject to an annual cost of living
adjustment in accordance with Sec. 381.10.
(ii) 2024: The 2023 rate, subject to an annual cost of living
adjustment in accordance with Sec. 381.10.
(iii) 2025: The 2024 rate, subject to an annual cost of living
adjustment in accordance with Sec. 381.10.
[[Page 41830]]
(iv) 2026: The 2025 rate, subject to an annual cost of living
adjustment in accordance with Sec. 381.10.
(v) 2027: The 2026 rate, subject to an annual cost of living
adjustment in accordance with Sec. 381.10.
(vi) For stations broadcasting primarily in a religious format
(including, without limitation, Contemporary Christian music, praise
and worship, Gospel, Southern Gospel, Spanish religious music,
inspirational, religious, etc.), at their option for 2023-2027, either
the rates set forth in paragraph (c)(4) of this section or the rates
set forth in Sec. 381.6(d)(4).
(5) For the performance of all other such compositions: $1.
(d) Payment of royalty rate. The public broadcasting entity shall
pay the required royalty rate to ASCAP, BMI, SESAC, and GMR not later
than January 31 of each year. Each annual payment to ASCAP, BMI, SESAC,
and GMR shall be accompanied by a signed declaration stating the number
of full-time students enrolled in the educational entity operating the
station and/or the ERP as specified in its current FCC license. An
exact copy of such declaration shall be furnished to each of ASCAP,
BMI, SESAC, and GMR.
(e) Records of use. A public broadcasting entity subject to this
section shall furnish to ASCAP, BMI, SESAC, and GMR upon request, a
music-use report during one week of each calendar year. ASCAP, BMI,
SESAC, and GMR shall not in any one calendar year request more than 10
stations to furnish such reports.
0
5. Amend Sec. 381.6 by revising paragraphs (d) through (f) to read as
follows:
Sec. 381.6 Performance of musical compositions by other public
broadcasting entities.
* * * * *
(d) Royalty rate. A public broadcasting entity within the scope of
this section may perform published nondramatic musical compositions
subject to the following schedule of royalty rates:
(1) For all such compositions in the repertory of ASCAP, the
royalty rates shall be as follows:
(i) Music fees for stations with 20% or more programming containing
Feature Music are as follows:
Table 1 to Paragraph (d)(1)(i)
----------------------------------------------------------------------------------------------------------------
Calendar years
Population count -------------------------------------------------
2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $574 $585 $597 $609 $621
Level 2........................... 25,000-249,999............ 754 769 784 800 816
Level 3........................... 250,000-499,999........... 1,346 1,373 1,400 1,428 1,457
Level 4........................... 500,000-999,999........... 2,017 2,057 2,098 2,140 2,183
Level 5........................... 1,000,000-1,499,999....... 2,691 2,745 2,800 2,856 2,913
Level 6........................... 1,500,000-1,999,999....... 3,363 3,430 3,499 3,569 3,640
Level 7........................... 2,000,000-2,499,999....... 4,035 4,116 4,198 4,282 4,368
Level 8........................... 2,500,000-2,999,999....... 4,708 4,802 4,898 4,996 5,096
Level 9........................... 3,000,000 and above....... 6,726 6,861 6,998 7,138 7,280
----------------------------------------------------------------------------------------------------------------
(ii) Talk Format Station fees for stations with <20% Feature Music
programming are as follows:
Table 2 to Paragraph (d)(1)(ii)
----------------------------------------------------------------------------------------------------------------
Calendar years
Population count -------------------------------------------------
2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $265 $270 $276 $281 $287
Level 2........................... 25,000-249,999............ 574 585 597 609 621
Level 3........................... 250,000-499,999........... 574 585 597 609 621
Level 4........................... 500,000-999,999........... 574 585 597 609 621
Level 5........................... 1,000,000-1,499,999....... 942 961 980 1,000 1,020
Level 6........................... 1,500,000-1,999,999....... 1,177 1,201 1,225 1,249 1,274
Level 7........................... 2,000,000-2,499,999....... 1,412 1,440 1,469 1,498 1,528
Level 8........................... 2,500,000-2,999,999....... 1,647 1,680 1,714 1,748 1,783
Level 9........................... 3,000,000 and above....... 2,354 2,401 2,449 2,498 2,548
----------------------------------------------------------------------------------------------------------------
(2) For all such compositions in the repertory of BMI, the royalty
rates shall be as follows:
(i) Music fees for stations with 20% or more programming containing
Feature Music are as follows:
Table 3 to Paragraph (d)(2)(i)
----------------------------------------------------------------------------------------------------------------
Calendar years
Population count -------------------------------------------------
2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $574 $585 $597 $609 $621
Level 2........................... 25,000-249,999............ 754 769 784 800 816
[[Page 41831]]
Level 3........................... 250,000-499,999........... 1,346 1,373 1,400 1,428 1,457
Level 4........................... 500,000-999,999........... 2,017 2,057 2,098 2,140 2,183
Level 5........................... 1,000,000-1,499,999....... 2,691 2,745 2,800 2,856 2,913
Level 6........................... 1,500,000-1,999,999....... 3,363 3,430 3,499 3,569 3,640
Level 7........................... 2,000,000-2,499,999....... 4,035 4,116 4,198 4,282 4,368
Level 8........................... 2,500,000-2,999,999....... 4,708 4,802 4,898 4,996 5,096
Level 9........................... 3,000,000 and above....... 6,726 6,861 6,998 7,138 7,280
----------------------------------------------------------------------------------------------------------------
(ii) Talk Format Station fees for stations with <20% Feature Music
programming are as follows:
Table 4 to Paragraph (d)(2)(ii)
----------------------------------------------------------------------------------------------------------------
Calendar years
Population count -------------------------------------------------
2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $265 $270 $276 $281 $287
Level 2........................... 25,000-249,999............ 574 585 597 609 621
Level 3........................... 250,000-499,999........... 574 585 597 609 621
Level 4........................... 500,000-999,999........... 574 585 597 609 621
Level 5........................... 1,000,000-1,499,999....... 942 961 980 1,000 1,020
Level 6........................... 1,500,000-1,999,999....... 1,177 1,201 1,225 1,249 1,274
Level 7........................... 2,000,000-2,499,999....... 1,412 1,440 1,469 1,498 1,528
Level 8........................... 2,500,000-2,999,999....... 1,647 1,680 1,714 1,748 1,783
Level 9........................... 3,000,000 and above....... 2,354 2,401 2,449 2,498 2,548
----------------------------------------------------------------------------------------------------------------
(3) For all such compositions in the repertory of SESAC, the
royalty rates shall be as follows:
(i) Music fees for stations with 20% or more programming containing
Feature Music are as follows:
Table 5 to Paragraph (d)(3)(i)
----------------------------------------------------------------------------------------------------------------
Population count 2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $189 $192 $196 $200 $204
Level 2........................... 25,000-249,999............ 189 192 196 200 204
Level 3........................... 250,000-499,999........... 315 321 328 334 341
Level 4........................... 500,000-999,999........... 473 482 492 502 512
Level 5........................... 1,000,000-1,499,999....... 630 643 656 669 682
Level 6........................... 1,500,000-1,999,999....... 789 805 821 837 854
Level 7........................... 2,000,000-2,499,999....... 945 964 983 1,003 1,023
Level 8........................... 2,500,000-2,999,999....... 1,104 1,126 1,149 1,172 1,195
Level 9........................... 3,000,000 and above....... 1,577 1,608 1,640 1,673 1,707
----------------------------------------------------------------------------------------------------------------
(ii) Talk Format Station fees for stations with <20% Feature Music
programming are as follows:
Table 6 to Paragraph (d)(3)(ii)
----------------------------------------------------------------------------------------------------------------
Population count 2023 2024 2025 2026 2027
----------------------------------------------------------------------------------------------------------------
Level 1........................... 0-24,999.................. $130 $133 $135 $138 $141
Level 2........................... 25,000-249,999............ 189 192 196 200 204
Level 3........................... 250,000-499,999........... 189 192 196 200 204
Level 4........................... 500,000-999,999........... 189 192 196 200 204
Level 5........................... 1,000,000-1,499,999....... 221 225 229 234 239
Level 6........................... 1,500,000-1,999,999....... 276 282 287 293 299
Level 7........................... 2,000,000-2,499,999....... 331 337 344 351 358
Level 8........................... 2,500,000-2,999,999....... 386 394 402 410 418
Level 9........................... 3,000,000 and above....... 552 563 574 586 597
----------------------------------------------------------------------------------------------------------------
[[Page 41832]]
(4) For all such compositions in the repertory of GMR, the royalty
rates shall be as follows:
(i) For a public broadcasting entity within the scope of this
section that is broadcasting one or more radio stations as of January
1, 2023, a single $50 fee for each such station for the entire five-
year license term from 2023 through 2027; and
(ii) For a public broadcasting entity within the scope of this
section that begins broadcasting a radio station after January 1, 2023,
but before December 31, 2027, a pro-rated amount equal to $10
multiplied by the number of full or partial years remaining in the
2023-2027 license term as of the date on which the radio station begins
broadcasting (e.g., a public broadcasting entity that begins
broadcasting a radio station in 2025 shall pay $30 for that station for
the remainder of the term).
(5) For the performance of all other such compositions, from 2023
through 2027: $1.
(e) Payment of royalty rate--(1) ASCAP, BMI, and SESAC. The public
broadcasting entity shall pay the required royalty rate to ASCAP, BMI,
and SESAC not later than January 31 of each year. Each annual payment
shall be accompanied by a signed declaration stating the Population
Count of the public broadcasting entity and the source for such
Population Count. An exact copy of such declaration shall be furnished
to each of ASCAP, BMI, and SESAC. Upon prior written notice thereof
from ASCAP, BMI, or SESAC, a public broadcasting entity shall make its
books and records relating to its Population Count available for
inspection. In the event that a public broadcasting entity wishes to be
deemed a Talk Format Station, then such entity shall provide a signed
declaration stating that Feature Music is performed in less than 20% of
its annual programming and that it complies with the caps set forth in
paragraph (b)(4) of this section. An exact copy of such declaration
shall be furnished to each of ASCAP, BMI, and SESAC. Upon prior written
notice thereof from ASCAP, BMI, or SESAC, a public broadcasting entity
shall make its program schedule or other documentation supporting its
eligibility as a Talk Format Station available for inspection.
(2) GMR. For fees due pursuant to paragraph (d)(4)(i) of this
section, the public broadcasting entity shall pay the required royalty
rate to GMR not later than January 31, 2023. For fees due pursuant to
paragraph (d)(4)(ii) of this section, the public broadcasting entity
shall pay the required royalty rate to GMR not later than 60 days after
the public broadcasting entity begins to broadcast the radio station
for which such fee is due. If a fee is paid pursuant to paragraph
(d)(4)(i) or (ii) of this section for a radio station and that station
changes ownership during the course of the license term but continues
to fall within the scope of this section, no additional fee shall be
due for that station during the 2023-2027 license term.
(f) Records of use. A public broadcasting entity subject to this
section shall furnish to ASCAP, BMI, SESAC, and GMR, upon request, a
music-use report during one week of each calendar year. ASCAP, BMI,
SESAC, and GMR each shall not in any one calendar year request more
than 10 stations to furnish such reports.
0
6. In Sec. 381.7, revise paragraphs (a) through (c) and (e) to read as
follows:
Sec. 381.7 Recording rights, rates and terms.
(a) Scope. This section establishes rates and terms for the
recording of nondramatic performances and displays of musical works,
other than compositions subject to voluntary license agreements, on and
for the radio and television programs of public broadcasting entities,
whether or not in synchronization or timed relationship with the visual
or aural content, and for the making, reproduction, and distribution of
copies and phonorecords of public broadcasting programs containing such
nondramatic performances and displays of musical works solely for the
purpose of transmission by public broadcasting entities, including
transmission via the internet by PBS and NPR. The schedule of rates and
terms established in this section include the making of the
reproductions described in 17 U.S.C. 118(c)(3).
(b) Royalty rate. (1)(i) For uses described in paragraph (a) of
this section of a musical work in a PBS-distributed program, the
royalty fees shall be calculated by multiplying the following per-
composition rates by the number of different compositions in that PBS-
distributed program:
------------------------------------------------------------------------
2023-2027
------------------------------------------------------------------------
(A) Feature.................................................. $121.07
(B) Concert feature (per minute)............................. 36.36
(C) Background............................................... 61.19
(D) Theme:
(1) Single program or first series program................. 61.19
(2) Other series program................................... 24.84
------------------------------------------------------------------------
(ii) For such uses other than in a PBS-distributed television
program, the royalty fee shall be calculated by multiplying the
following per-composition rates by the number of different compositions
in that program:
------------------------------------------------------------------------
2023-2027
------------------------------------------------------------------------
(A) Feature.................................................. $10.01
(B) Concert feature (per minute)............................. 2.63
(C) Background............................................... 4.35
(D) Theme:
(1) Single program or first series program................. 4.35
(2) Other series program................................... 1.73
------------------------------------------------------------------------
(iii) In the event the work is first recorded other than in a PBS-
distributed program, and such program is subsequently distributed by
PBS, an additional royalty payment shall be made equal to the
difference between the rate specified in this section for other than a
PBS-distributed program and the rate specified in this section for a
PBS-distributed program.
(2) For uses licensed under this section of a musical work in an
NPR program, the royalty fees shall be calculated by multiplying the
following per-composition rates by the number of different compositions
in any NPR program distributed by NPR. For purposes of the schedule
established in this section, ``National Public Radio'' programs include
all programs produced in whole or in part by NPR, or by any NPR station
or organization under contract with NPR.
------------------------------------------------------------------------
2023-2027
------------------------------------------------------------------------
(i) Feature.................................................. $13.11
(ii) Concert feature (per minute)............................ 19.24
(iii) Background............................................. 6.56
(iv) Theme:
(A) Single program or first series program................. 6.56
(B) Other series program................................... 2.62
------------------------------------------------------------------------
(3) For purposes of the schedule established in this section, a
``concert feature'' shall be deemed to be the nondramatic presentation
in a program of all or part of a symphony, concerto, or other serious
work originally written for concert performance, or the nondramatic
presentation in a program of portions of a serious work originally
written for opera performance.
(4) For such uses other than in an NPR-produced radio program:
[[Page 41833]]
------------------------------------------------------------------------
2023-2027
------------------------------------------------------------------------
(i) Feature.................................................. $.83
(ii) Feature (concert) (per half hour)....................... 1.72
(iii) Background............................................. .42
------------------------------------------------------------------------
(5) The schedule of fees covers use for a period of three years
following the first use. Succeeding use periods will require the
following additional payment: Additional one-year period--25 percent of
the initial three-year fee; second three-year period--50 percent of the
initial three-year fee; each three-year fee thereafter--25 percent of
the initial three-year fee; provided that a 100 percent additional
payment prior to the expiration of the first three-year period will
cover use during all subsequent use periods without limitation. Such
succeeding uses which are subsequent to December 31, 2022, shall be
subject to the schedule of royalty rates established in this section.
(6) For each use licensed under this section pursuant to paragraphs
(b)(1)(i) and (b)(2) of this section for transmission via the internet,
the royalty fees shall include a pro-rata share of $2,000 per calendar
year, which share shall be determined by calculating the aggregate
amount of royalty fees earned during that calendar year and dividing
the sum by the amount of royalty fees earned for each use.
(c) Payment of royalty rates. The required royalty due under
paragraphs (b)(1), (2), and (4) of this section shall be paid to each
known copyright owner not later than July 31 of each calendar year for
uses during the first six months of that calendar year and not later
than January 31 for uses during the last six months of the preceding
calendar year. The required royalty due under paragraph (b)(6) of this
section for each calendar year of the statutory license term shall be
paid to each known copyright owner not later than March 31 of each
following year for PBS- or NPR-distributed uses via the internet during
the preceding calendar year.
* * * * *
(e) Filing of use reports with the Copyright Royalty Judges:
deposit of cue sheets or summaries. PBS and its stations, NPR, or other
television public broadcasting entity shall deposit with the Copyright
Royalty Judges via online filing in eCRB one electronic copy of their
standard music cue sheets or summaries of same listing the recording
pursuant to the schedule established in this section of the musical
works of copyright owners. Such cue sheets or summaries shall be
deposited not later than July 31 of each calendar year for recordings
during the first six months of the calendar year and not later than
January 31 of each calendar year for recordings during the second six
months of the preceding calendar year. PBS and NPR shall maintain at
their offices copies of all standard music cue sheets from which such
music use reports are prepared. Such music cue sheets shall be
furnished to the Copyright Royalty Judges upon their request and also
shall be available during regular business hours at the offices of PBS
or NPR for examination by a copyright owner who believes a musical
composition of such owner has been recorded pursuant to the schedule.
Sec. 381.8 [Amended]
0
7. In Sec. 381.8:
0
a. In paragraph (b)(1) introductory text, add the words ``not otherwise
licensed by the copyright owner'' at the end of the paragraph;
0
b. In paragraphs (b)(1)(i) and (ii), in the table header, remove the
year ``2013-2017'' and add in its place the year ``2023-2027'';
0
c. In paragraph (d)(1), add the text ``, upon request,'' after ``shall
maintain and''; and
0
d. In paragraph (f)(1), remove the year ``2017'' and add in its place
the year ``2027''.
0
8. Revise Sec. 381.10 to read as follows:
Sec. 381.10 Cost of living adjustment.
(a) On or before December 1, 2023, the Copyright Royalty Judges
shall publish in the Federal Register a notice of the change in the
cost of living as determined by the Consumer Price Index (all
consumers, all items) during the period from the most recent Index
published prior to December 1, 2022, to the most recent Index published
prior to December 1, 2023. On or before each December 1 thereafter the
Copyright Royalty Judges shall publish a notice of the change in the
cost of living during the period from the most recent index published
prior to the previous notice to the most recent Index published prior
to December 1 of that year.
(b) On the same date of the notices published pursuant to paragraph
(a) of this section, the Copyright Royalty Judges shall publish in the
Federal Register a revised schedule of the rates for Sec. 381.5(c)(3)
and (4), the rates to be charged for compositions in the repertory of
SESAC and GMR, which shall adjust the royalty amounts established in a
dollar amount according to the greater of:
(1) The change in the cost of living determined as provided in
paragraph (a) of this section; or
(2) One-and-a-half percent (1.5%).
(3) Such royalty rates shall be fixed at the nearest dollar.
(c) The adjusted schedule for the rates for Sec. 381.5(c)(3) and
(4) shall become effective thirty (30) days after publication in the
Federal Register.
Dated: June 9, 2023.
David P. Shaw,
Chief Copyright Royalty Judge.
David R. Strickler,
Copyright Royalty Judge.
Steve Ruwe,
Copyright Royalty Judge.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2023-13668 Filed 6-27-23; 8:45 am]
BILLING CODE 1410-72-P
