Determination of Royalty Rates and Terms for Making Ephemeral Copies of Sound Recordings for Transmission to Business Establishments (Business Establishments IV), 68527-68529 [2023-21123]
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68527
Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules
(b) [The text of proposed § 300.11(b)
is the same as the text of § 300.11(b)
published elsewhere in this issue of the
Federal Register].
*
*
*
*
*
(d) [The text of proposed § 300.11(d)
is the same as the text of § 300.11(d)
published elsewhere in this issue of the
Federal Register].
Douglas W. O’Donnell,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 2023–22104 Filed 9–29–23; 4:15 pm]
BILLING CODE 4830–01–P
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 384
[Docket No. 21–CRB–0013–BER (2024–
2028)]
Determination of Royalty Rates and
Terms for Making Ephemeral Copies of
Sound Recordings for Transmission to
Business Establishments (Business
Establishments IV)
Copyright Royalty Board,
Library of Congress.
ACTION: Proposed rule.
lotter on DSK11XQN23PROD with PROPOSALS1
AGENCY:
SUMMARY: The Copyright Royalty
Judges solicit comments on proposed
rates and terms for the making of
ephemeral copies of sound recordings to
facilitate digital audio transmissions of
those sound recordings to business
establishments pursuant to the
limitation on exclusive rights specified
by the Copyright Act for the period from
January 1, 2024, through December 31,
2028.
DATES: Comments and objections, if any,
are due no later than October 24, 2023.
ADDRESSES: You may submit comments
and objections, identified by docket
number 21–CRB–0013–BER (2024–
2028) online through eCRB at https://
app.crb.gov/.
Instructions: All comments must
include the Copyright Royalty Board
name and the docket number for this
proposed rule. All properly filed
comments will appear without change
in eCRB at https://app.crb.gov,
including any personal information
provided.
Docket: For access to the docket to
read background documents or
comments 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–0013–BER
(2024–2028).
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FOR FURTHER INFORMATION CONTACT:
Anita Brown, CRB Program Specialist,
(202) 707–7658, crb@loc.gov.
SUPPLEMENTARY INFORMATION: The
Copyright Act provides that the
Copyright Royalty Judges (Judges)
commence a proceeding every fifth year
to determine royalty rates and terms for
the recording of ephemeral copies of
sound recordings pursuant to the
statutory license in 17 U.S.C. 112(e)(1)
to facilitate digital audio transmissions
of those sound recordings to business
establishments pursuant to the
limitation on exclusive rights specified
by 17 U.S.C. 114(d)(1)(C)(iv). See 17
U.S.C. 804(b)(2).
In accordance with section 804(b)(2),
the Judges commenced the proceeding
to set rates and terms for the period
2024–2028 on January 5, 2022 (87 FR
490). In the Federal Register notice, the
Judges requested that interested parties
submit petitions to participate. Petitions
to Participate were received from: Mood
Media Corp., Music Choice, Rockbot,
Inc., Sirius XM Radio Inc. and Its
Wholly Owned Subsidiaries,
SoundExchange, Inc., Soundtrack Your
Brand Sweden AB, and Stingray Music
USA Inc. The Judges initiated the threemonth negotiation period and directed
the participants to submit written direct
statements no later than September 19,
2022. See 17 U.S.C. 803(b)(3).
On September 19, 2022, the Judges
received a Motion to Adopt Settlement
stating that all participants 1 had
reached a settlement obviating the need
for written direct statements or a
hearing.
Section 801(b)(7)(A) of the Copyright
Act authorizes the Judges to adopt
royalty rates and terms negotiated by
‘‘some or all of the participants in a
proceeding at any time during the
proceeding’’ provided they are
submitted to the Judges for approval.
The Judges must provide ‘‘an
opportunity to comment on the
agreement’’ to both participants and
non-participants in the rate proceeding
who ‘‘would be bound by the terms,
rates, or other determination set by any
agreement . . .’’ 17 U.S.C.
801(b)(7)(A)(i). Participants in the
proceeding may also ‘‘object to [the
agreement’s] adoption as a basis for
statutory terms and rates.’’ Id.
The Judges ‘‘may decline to adopt the
agreement as a basis for statutory terms
and rates for participants that are not
parties to the agreement,’’ only ‘‘if any
participant [to the proceeding] objects to
the agreement and the [Judges]
1 Soundtrack Your Brand Sweden AB had
withdrawn its Petition to Participate on April 5,
2022.
PO 00000
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Fmt 4702
Sfmt 4702
conclude, based on the record before
them if one exists, that the agreement
does not provide a reasonable basis for
setting statutory terms or rates.’’ 17
U.S.C. 801(b)(7)(A)(ii).
Royalty rates and terms adopted
pursuant to section 801(b)(7)(A) are
binding on all copyright owners of
sound recordings and all business
establishment services making an
ephemeral recording of a sound
recording for the period January 1, 2024,
through December 31, 2028.
List of Subjects in 37 CFR Part 384
Copyright, Digital audio
transmissions, Ephemeral recordings,
Performance right, Sound recordings.
Proposed Regulations
For the reasons set forth in the
preamble, the Copyright Royalty Judges
propose to amend part 384 of chapter III
of title 37 of the Code of Federal
Regulations as follows:
PART 384—RATES AND TERMS FOR
THE MAKING OF EPHEMERAL
RECORDINGS BY BUSINESS
ESTABLISHMENT SERVICES
1. The authority citation for part 384
continues to read as follows:
■
Authority: 17 U.S.C. 112(e), 801(b)(1).
§ 384.1
[Amended]
2. In § 384.1(a), remove the phrase
‘‘January 1, 2019, through December 31,
2023’’ and add in its place ‘‘January 1,
2024, through December 31, 2028’’.
■ 3. In § 384.3, revise paragraphs (a) and
(b) to read as follows:
■
§ 384.3 Royalty fees for ephemeral
recordings.
(a) Basic royalty rate. (1) For the
making of any number of Ephemeral
Recordings in the operation of a
Business Establishment Service, a
Licensee shall pay a royalty equal to the
following percentages of such Licensee’s
‘‘Gross Proceeds’’ derived from the use
in such service of musical programs that
are attributable to recordings subject to
protection under title 17, United States
Code:
TABLE 1 TO PARAGRAPH (a)(1)
Year
2024
2025
2026
2027
2028
......................................
......................................
......................................
......................................
......................................
Rate (%)
14.0
14.5
14.75
15.0
15.0
(2) Gross Proceeds as used in this
section means all fees and payments,
including those made in kind, received
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68528
Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules
from any source before, during or after
the License Period that are derived from
the use of sound recordings subject to
protection under title 17, United States
Code, during the License Period
pursuant to 17 U.S.C. 112(e) for the sole
purpose of facilitating a transmission to
the public of a performance of a sound
recording under the limitation on
exclusive rights specified in 17 U.S.C.
114(d)(1)(C)(iv).
(3) Subject to paragraph (a)(4) of this
section, the royalty specified in
paragraph (a)(1) of this section for a
particular Business Establishment
Service offering may be reduced by a
percentage corresponding to the ‘‘Direct
License Share’’ for such Business
Establishment Service offering, as
follows:
(i) If the transmissions of the Business
Establishment Service offering are
entirely made over the internet or the
Licensee otherwise is able to count all
of its Performances to business
subscribers, the Direct License Share for
such Business Establishment Service
offering is its Performances of directly
licensed sound recordings and sound
recordings for which no license is
required (e.g., sound recordings in
which the copyrights are owned by the
Licensee) (collectively, ‘‘Excluded
Recordings’’) divided by its total
Performances.
(ii) If the transmissions of the
Business Establishment Service offering
are made to 10% or more of the bona
fide subscriber locations of the Business
Establishment Service offering over the
internet, or the Licensee otherwise is
able to count its Performances to 10%
or more of bona fide subscriber
locations of the Business Establishment
Service offering, and the Business
Establishment Service offering provides
transmissions of a substantially similar
set of channels (fairly represented by the
countable channels) to other subscriber
locations by means that do not allow the
Licensee to count Performances (e.g., by
satellite with no usage feedback), the
Direct License Share for such Business
Establishment Service offering is its
Performances of Excluded Recordings to
the locations where the Licensee is able
to count its Performances divided by its
total Performances to the locations
where the Licensee is able to count its
Performances. When reporting under
§ 370.4(d)(2)(vii) of this chapter, such
total countable Performances of sound
recordings that are not Excluded
Recordings shall be treated and reported
as the ‘‘actual total performances’’ of the
Business Establishment Service if the
Direct License Share is calculated
pursuant to this paragraph (a)(3)(ii).
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(iii) If paragraphs (a)(3)(i) and (ii) of
this section do not apply, but the
Licensee transmits a set of webcast
channels substantially similar to and
representative of the Business
Establishment Service offering to
consumers over the internet or by other
means that allow the Licensee to count
Performances on those channels
(‘‘Reference Channels’’), the Direct
License Share for such Business
Establishment Service offering is its
Performances of Excluded Recordings
on the Reference Channels divided by
its total Performances on the Reference
Channels.
(iv) Otherwise, the Direct License
Share for such Business Establishment
Service offering is a fraction calculated
on a subscriber location-by-subscriber
location basis, or if that is impracticable,
on a uniform basis for all subscriber
locations, where:
(A) The numerator is the play
frequency (as defined in § 370.4(b) of
this chapter) of Excluded Recordings for
the Business Establishment Service
offering during a period of time each
day as follows:
(1) If the Direct License Share is
calculated on a subscriber location-by
subscriber location basis, during a
continuous 12-hour period to be
selected by the Licensee for each
location for the month for which the
payment is made, provided that each
such location’s hours of operation fall
entirely within the selected 12-hour
period, or if such location is in
operation for more than 12 hours per
day, the selected 12-hour period
consists of hours the location is in
operation, including its main hours of
operation; or
(2) If the Direct License Share is
calculated on a uniform basis for all
locations, during the hours of 9 a.m. to
9 p.m. local time; and
(B) The denominator is the total play
frequency (as defined in § 370.4(b) of
this chapter) for the Business
Establishment Service offering between
the same hours as used in the
numerator.
(4) The Direct License Share
reduction in paragraph (a)(3) of this
section is available to a Licensee only if
the Licensee provides the Collective, by
no later than the due date for the
relevant payment under § 384.4(c), a list
of each Copyright Owner from which
the Licensee claims to have a direct
license of rights to Excluded Recordings
that is in effect for the month for which
the payment is made and of each sound
recording for which the Licensee takes
the reduction, identified by featured
artist name, sound recording title, and
International Standard Recording Code
PO 00000
Frm 00029
Fmt 4702
Sfmt 4702
(ISRC) number or, if the ISRC is not
available and feasible, album title and
copyright owner name. Notwithstanding
§ 384.5, the Collective may disclose
such information as reasonably
necessary for it to confirm whether a
claimed direct license exists and
claimed sound recordings are properly
excludable.
(5) For purposes of paragraph (a)(3) of
this section, Performance means:
(i) Except as discussed in paragraph
(a)(5)(ii) of this section, a Performance is
an instance in which any portion of a
sound recording is publicly performed
to a Business Establishment Service
subscriber location within the United
States (e.g., the delivery of any portion
of a single track from a compact disc to
one subscriber location).
(ii) An instance in which a portion of
a sound recording is publicly performed
to a Business Establishment Service
subscriber location within the United
States is not a Performance if it both:
(A) Makes no more than incidental
use of sound recordings including, but
not limited to, brief musical transitions
in and out of commercials or program
segments, brief use during news, talk
and sports programming, brief
background use during disk jockey
announcements, brief use during
commercials of sixty seconds or less in
duration, or brief use during sporting or
other public events; and
(B) Does not contain an entire sound
recording and does not feature a
particular sound recording of more than
thirty seconds (as in the case of a sound
recording used as a theme song), except
for ambient music that is background at
a public event.
(b) Minimum fee. Each Licensee shall
pay a minimum fee of $25,000 for each
calendar year of the License Period in
which it makes Ephemeral Recordings
for use to facilitate transmissions under
the limitation on exclusive rights
specified by 17 U.S.C. 114(d)(1)(C)(iv),
whether or not it does so for all or any
part of the year. These minimum fees
shall be nonrefundable, but shall be
fully creditable to royalty payments due
under paragraph (a) of this section for
the same calendar year (but not any
subsequent calendar year).
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■ 4. Amend § 384.4 as follows:
■ a. Redesignate paragraphs (f), (g), and
(h) as paragraphs (g), (i), and (j).
■ b. Add new paragraph (f).
■ c. Revise newly redesignated
paragraph (g) introductory text.
■ d. Further redesignate newly
redesignated paragraphs (g)(3) through
(8) as paragraphs (g)(4) through (9) and
add new paragraph (g)(3).
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Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules
e. Add new paragraph (h).
f. Revise newly redesignated
paragraph (i)(1).
■ g. In newly redesignated paragraph
(i)(2), remove ‘‘(g)(1)’’ and add ‘‘(i)(1)’’
in its place.
The additions and revisions read as
follows:
■
■
§ 384.4 Terms for making payment of
royalty fees and statements of account.
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(f) Use of account numbers. If the
Collective notifies a Licensee of an
account number to be used to identify
its royalty payments for a particular
Business Establishment Service offering,
the Licensee must include that account
number on its check or check stub for
any payment for that Business
Establishment Service offering made by
check, in the identifying information for
any payment for that Business
Establishment Service offering made by
electronic transfer, in its statements of
account for that Business Establishment
Service offering under paragraph (g) of
this section, and in the transmittal of its
Reports of Use for that Business
Establishment Service offering under
§ 370.4 of this chapter.
(g) Statements of account. For any
part of the License Period during which
a Licensee operates a Business
Establishment Service, at the time when
a minimum payment is due under
paragraph (d) of this section, and by 45
days after the end of each month during
the period, the Licensee shall deliver to
the Collective a statement of account
containing the information set forth in
this paragraph (g) on a form prepared,
and made available to Licensees, by the
Collective. In the case of a minimum
payment, or if a payment is owed for
such month, the statement of account
shall accompany the payment. A
statement of account shall contain only
the following information:
(1) Such information as is necessary
to calculate the accompanying royalty
payment, or if no payment is owed for
the month, to calculate any portion of
the minimum fee recouped during the
month;
(2) The name, address, business title,
telephone number, facsimile number (if
any), electronic mail address and other
contact information of the person to be
contacted for information or questions
concerning the content of the statement
of account;
(3) The account number assigned to
the Licensee by the Collective for the
relevant Business Establishment Service
offering (if the Licensee has been
notified of such account number by the
Collective);
(4) The signature of:
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18:06 Oct 03, 2023
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(i) The owner of the Licensee or a
duly authorized agent of the owner, if
the Licensee is not a partnership or
corporation;
(ii) A partner or delegee, if the
Licensee is a partnership; or
(iii) An officer of the corporation, if
the Licensee is a corporation;
(5) The printed or typewritten name
of the person signing the statement of
account;
(6) The date of signature;
(7) If the Licensee is a partnership or
corporation, the title or official position
held in the partnership or corporation
by the person signing the statement of
account;
(8) A certification of the capacity of
the person signing; and
(9) A statement to the following effect:
I, the undersigned owner or agent of
the Licensee, or officer or partner, have
examined this statement of account and
hereby state that it is true, accurate and
complete to my knowledge after
reasonable due diligence.
(h) International Standard Recording
Codes. Notwithstanding § 370.4(d)(2)(v)
of this chapter, the Licensee must use
International Standard Recording Codes
(ISRCs) in its Reports of Use, where
available and feasible.
(i) * * *
(1) * * * However, in any case in
which a Licensee has not provided a
compliant Report of Use, whether for
the License Period or otherwise, and the
board of directors of the Collective
determines that further efforts to seek
the missing Report of Use from the
Licensee would not be warranted, the
Collective may determine that it will
distribute the royalties associated with
the Licensee’s missing Report of Use on
the basis of a proxy data set approved
by the board of directors of the
Collective.
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David P. Shaw,
Chief Copyright Royalty Judge.
[FR Doc. 2023–21123 Filed 10–3–23; 8:45 am]
BILLING CODE 1410–72–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[Docket No. EPA–R02–OAR–2023–0175;
FRL 11053–01–R2]
Approval of Air Quality Implementation
Plans; New York; Emission Statement
Program
Environmental Protection
Agency (EPA).
ACTION: Proposal rule.
AGENCY:
PO 00000
Frm 00030
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68529
The Environmental Protection
Agency (EPA) is proposing to approve
State Implementation Plan (SIP)
revisions submitted by New York State
Department of Environmental
Conservation (NYSDEC) for the purpose
of enhancing an existing emission
statement program for stationary sources
in New York State. The SIP revision
consists of amendments to regulations
in New York’s Codes, Rules and
Regulations (NYCRR) applicable to the
emission statements. This SIP revision
was submitted by NYSDEC to satisfy the
ozone nonattainment provision of the
Clean Air Act (Act or CAA). These
provisions establish electronic reporting
requirements for annual emission
statements filed by facilities subject to
Title V operating permits of the Act
beginning in 2022 (for calendar year
2021 emission reporting).
The intended effect is to obtain
improved emissions related data from
facilities located in New York State,
allowing NYSDEC to more effectively
plan for, and attain, the national
ambient air quality standards (NAAQS).
The Emission Statement rule also
improves EPA’s and the public’s access
to facility specific emission related data.
DATES: Written comments must be
received on or before November 3, 2023.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R02–
OAR–2023–0175 at https://
www.regulations.gov. Although listed in
the index, some information is not
publicly available, e.g., Confidential
Business Information (CBI) 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
form. Publicly available docket
materials are available through
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
The EPA may publish any comment
received to its public docket. Do not
submit electronically any information
you consider to be Confidential
Business Information (CBI) or other
information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
SUMMARY:
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]]>Agencies
[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Proposed Rules]
[Pages 68527-68529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21123]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 384
[Docket No. 21-CRB-0013-BER (2024-2028)]
Determination of Royalty Rates and Terms for Making Ephemeral
Copies of Sound Recordings for Transmission to Business Establishments
(Business Establishments IV)
AGENCY: Copyright Royalty Board, Library of Congress.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Copyright Royalty Judges solicit comments on proposed
rates and terms for the making of ephemeral copies of sound recordings
to facilitate digital audio transmissions of those sound recordings to
business establishments pursuant to the limitation on exclusive rights
specified by the Copyright Act for the period from January 1, 2024,
through December 31, 2028.
DATES: Comments and objections, if any, are due no later than October
24, 2023.
ADDRESSES: You may submit comments and objections, identified by docket
number 21-CRB-0013-BER (2024-2028) online through eCRB at https://app.crb.gov/.
Instructions: All comments must include the Copyright Royalty Board
name and the docket number for this proposed rule. All properly filed
comments will appear without change in eCRB at https://app.crb.gov,
including any personal information provided.
Docket: For access to the docket to read background documents or
comments 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-0013-BER (2024-2028).
FOR FURTHER INFORMATION CONTACT: Anita Brown, CRB Program Specialist,
(202) 707-7658, [email protected].
SUPPLEMENTARY INFORMATION: The Copyright Act provides that the
Copyright Royalty Judges (Judges) commence a proceeding every fifth
year to determine royalty rates and terms for the recording of
ephemeral copies of sound recordings pursuant to the statutory license
in 17 U.S.C. 112(e)(1) to facilitate digital audio transmissions of
those sound recordings to business establishments pursuant to the
limitation on exclusive rights specified by 17 U.S.C. 114(d)(1)(C)(iv).
See 17 U.S.C. 804(b)(2).
In accordance with section 804(b)(2), the Judges commenced the
proceeding to set rates and terms for the period 2024-2028 on January
5, 2022 (87 FR 490). In the Federal Register notice, the Judges
requested that interested parties submit petitions to participate.
Petitions to Participate were received from: Mood Media Corp., Music
Choice, Rockbot, Inc., Sirius XM Radio Inc. and Its Wholly Owned
Subsidiaries, SoundExchange, Inc., Soundtrack Your Brand Sweden AB, and
Stingray Music USA Inc. The Judges initiated the three-month
negotiation period and directed the participants to submit written
direct statements no later than September 19, 2022. See 17 U.S.C.
803(b)(3).
On September 19, 2022, the Judges received a Motion to Adopt
Settlement stating that all participants \1\ had reached a settlement
obviating the need for written direct statements or a hearing.
---------------------------------------------------------------------------
\1\ Soundtrack Your Brand Sweden AB had withdrawn its Petition
to Participate on April 5, 2022.
---------------------------------------------------------------------------
Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to
adopt royalty rates and terms negotiated by ``some or all of the
participants in a proceeding at any time during the proceeding''
provided they are submitted to the Judges for approval. The Judges must
provide ``an opportunity to comment on the agreement'' to both
participants and non-participants in the rate proceeding who ``would be
bound by the terms, rates, or other determination set by any agreement
. . .'' 17 U.S.C. 801(b)(7)(A)(i). Participants in the proceeding may
also ``object to [the agreement's] adoption as a basis for statutory
terms and rates.'' Id.
The Judges ``may decline to adopt the agreement as a basis for
statutory terms and rates for participants that are not parties to the
agreement,'' only ``if any participant [to the proceeding] objects to
the agreement and the [Judges] conclude, based on the record before
them if one exists, that the agreement does not provide a reasonable
basis for setting statutory terms or rates.'' 17 U.S.C.
801(b)(7)(A)(ii).
Royalty rates and terms adopted pursuant to section 801(b)(7)(A)
are binding on all copyright owners of sound recordings and all
business establishment services making an ephemeral recording of a
sound recording for the period January 1, 2024, through December 31,
2028.
List of Subjects in 37 CFR Part 384
Copyright, Digital audio transmissions, Ephemeral recordings,
Performance right, Sound recordings.
Proposed Regulations
For the reasons set forth in the preamble, the Copyright Royalty
Judges propose to amend part 384 of chapter III of title 37 of the Code
of Federal Regulations as follows:
PART 384--RATES AND TERMS FOR THE MAKING OF EPHEMERAL RECORDINGS BY
BUSINESS ESTABLISHMENT SERVICES
0
1. The authority citation for part 384 continues to read as follows:
Authority: 17 U.S.C. 112(e), 801(b)(1).
Sec. 384.1 [Amended]
0
2. In Sec. 384.1(a), remove the phrase ``January 1, 2019, through
December 31, 2023'' and add in its place ``January 1, 2024, through
December 31, 2028''.
0
3. In Sec. 384.3, revise paragraphs (a) and (b) to read as follows:
Sec. 384.3 Royalty fees for ephemeral recordings.
(a) Basic royalty rate. (1) For the making of any number of
Ephemeral Recordings in the operation of a Business Establishment
Service, a Licensee shall pay a royalty equal to the following
percentages of such Licensee's ``Gross Proceeds'' derived from the use
in such service of musical programs that are attributable to recordings
subject to protection under title 17, United States Code:
Table 1 to Paragraph (a)(1)
------------------------------------------------------------------------
Year Rate (%)
------------------------------------------------------------------------
2024.................................................... 14.0
2025.................................................... 14.5
2026.................................................... 14.75
2027.................................................... 15.0
2028.................................................... 15.0
------------------------------------------------------------------------
(2) Gross Proceeds as used in this section means all fees and
payments, including those made in kind, received
[[Page 68528]]
from any source before, during or after the License Period that are
derived from the use of sound recordings subject to protection under
title 17, United States Code, during the License Period pursuant to 17
U.S.C. 112(e) for the sole purpose of facilitating a transmission to
the public of a performance of a sound recording under the limitation
on exclusive rights specified in 17 U.S.C. 114(d)(1)(C)(iv).
(3) Subject to paragraph (a)(4) of this section, the royalty
specified in paragraph (a)(1) of this section for a particular Business
Establishment Service offering may be reduced by a percentage
corresponding to the ``Direct License Share'' for such Business
Establishment Service offering, as follows:
(i) If the transmissions of the Business Establishment Service
offering are entirely made over the internet or the Licensee otherwise
is able to count all of its Performances to business subscribers, the
Direct License Share for such Business Establishment Service offering
is its Performances of directly licensed sound recordings and sound
recordings for which no license is required (e.g., sound recordings in
which the copyrights are owned by the Licensee) (collectively,
``Excluded Recordings'') divided by its total Performances.
(ii) If the transmissions of the Business Establishment Service
offering are made to 10% or more of the bona fide subscriber locations
of the Business Establishment Service offering over the internet, or
the Licensee otherwise is able to count its Performances to 10% or more
of bona fide subscriber locations of the Business Establishment Service
offering, and the Business Establishment Service offering provides
transmissions of a substantially similar set of channels (fairly
represented by the countable channels) to other subscriber locations by
means that do not allow the Licensee to count Performances (e.g., by
satellite with no usage feedback), the Direct License Share for such
Business Establishment Service offering is its Performances of Excluded
Recordings to the locations where the Licensee is able to count its
Performances divided by its total Performances to the locations where
the Licensee is able to count its Performances. When reporting under
Sec. 370.4(d)(2)(vii) of this chapter, such total countable
Performances of sound recordings that are not Excluded Recordings shall
be treated and reported as the ``actual total performances'' of the
Business Establishment Service if the Direct License Share is
calculated pursuant to this paragraph (a)(3)(ii).
(iii) If paragraphs (a)(3)(i) and (ii) of this section do not
apply, but the Licensee transmits a set of webcast channels
substantially similar to and representative of the Business
Establishment Service offering to consumers over the internet or by
other means that allow the Licensee to count Performances on those
channels (``Reference Channels''), the Direct License Share for such
Business Establishment Service offering is its Performances of Excluded
Recordings on the Reference Channels divided by its total Performances
on the Reference Channels.
(iv) Otherwise, the Direct License Share for such Business
Establishment Service offering is a fraction calculated on a subscriber
location-by-subscriber location basis, or if that is impracticable, on
a uniform basis for all subscriber locations, where:
(A) The numerator is the play frequency (as defined in Sec.
370.4(b) of this chapter) of Excluded Recordings for the Business
Establishment Service offering during a period of time each day as
follows:
(1) If the Direct License Share is calculated on a subscriber
location-by subscriber location basis, during a continuous 12-hour
period to be selected by the Licensee for each location for the month
for which the payment is made, provided that each such location's hours
of operation fall entirely within the selected 12-hour period, or if
such location is in operation for more than 12 hours per day, the
selected 12-hour period consists of hours the location is in operation,
including its main hours of operation; or
(2) If the Direct License Share is calculated on a uniform basis
for all locations, during the hours of 9 a.m. to 9 p.m. local time; and
(B) The denominator is the total play frequency (as defined in
Sec. 370.4(b) of this chapter) for the Business Establishment Service
offering between the same hours as used in the numerator.
(4) The Direct License Share reduction in paragraph (a)(3) of this
section is available to a Licensee only if the Licensee provides the
Collective, by no later than the due date for the relevant payment
under Sec. 384.4(c), a list of each Copyright Owner from which the
Licensee claims to have a direct license of rights to Excluded
Recordings that is in effect for the month for which the payment is
made and of each sound recording for which the Licensee takes the
reduction, identified by featured artist name, sound recording title,
and International Standard Recording Code (ISRC) number or, if the ISRC
is not available and feasible, album title and copyright owner name.
Notwithstanding Sec. 384.5, the Collective may disclose such
information as reasonably necessary for it to confirm whether a claimed
direct license exists and claimed sound recordings are properly
excludable.
(5) For purposes of paragraph (a)(3) of this section, Performance
means:
(i) Except as discussed in paragraph (a)(5)(ii) of this section, a
Performance is an instance in which any portion of a sound recording is
publicly performed to a Business Establishment Service subscriber
location within the United States (e.g., the delivery of any portion of
a single track from a compact disc to one subscriber location).
(ii) An instance in which a portion of a sound recording is
publicly performed to a Business Establishment Service subscriber
location within the United States is not a Performance if it both:
(A) Makes no more than incidental use of sound recordings
including, but not limited to, brief musical transitions in and out of
commercials or program segments, brief use during news, talk and sports
programming, brief background use during disk jockey announcements,
brief use during commercials of sixty seconds or less in duration, or
brief use during sporting or other public events; and
(B) Does not contain an entire sound recording and does not feature
a particular sound recording of more than thirty seconds (as in the
case of a sound recording used as a theme song), except for ambient
music that is background at a public event.
(b) Minimum fee. Each Licensee shall pay a minimum fee of $25,000
for each calendar year of the License Period in which it makes
Ephemeral Recordings for use to facilitate transmissions under the
limitation on exclusive rights specified by 17 U.S.C. 114(d)(1)(C)(iv),
whether or not it does so for all or any part of the year. These
minimum fees shall be nonrefundable, but shall be fully creditable to
royalty payments due under paragraph (a) of this section for the same
calendar year (but not any subsequent calendar year).
* * * * *
0
4. Amend Sec. 384.4 as follows:
0
a. Redesignate paragraphs (f), (g), and (h) as paragraphs (g), (i), and
(j).
0
b. Add new paragraph (f).
0
c. Revise newly redesignated paragraph (g) introductory text.
0
d. Further redesignate newly redesignated paragraphs (g)(3) through (8)
as paragraphs (g)(4) through (9) and add new paragraph (g)(3).
[[Page 68529]]
0
e. Add new paragraph (h).
0
f. Revise newly redesignated paragraph (i)(1).
0
g. In newly redesignated paragraph (i)(2), remove ``(g)(1)'' and add
``(i)(1)'' in its place.
The additions and revisions read as follows:
Sec. 384.4 Terms for making payment of royalty fees and statements of
account.
* * * * *
(f) Use of account numbers. If the Collective notifies a Licensee
of an account number to be used to identify its royalty payments for a
particular Business Establishment Service offering, the Licensee must
include that account number on its check or check stub for any payment
for that Business Establishment Service offering made by check, in the
identifying information for any payment for that Business Establishment
Service offering made by electronic transfer, in its statements of
account for that Business Establishment Service offering under
paragraph (g) of this section, and in the transmittal of its Reports of
Use for that Business Establishment Service offering under Sec. 370.4
of this chapter.
(g) Statements of account. For any part of the License Period
during which a Licensee operates a Business Establishment Service, at
the time when a minimum payment is due under paragraph (d) of this
section, and by 45 days after the end of each month during the period,
the Licensee shall deliver to the Collective a statement of account
containing the information set forth in this paragraph (g) on a form
prepared, and made available to Licensees, by the Collective. In the
case of a minimum payment, or if a payment is owed for such month, the
statement of account shall accompany the payment. A statement of
account shall contain only the following information:
(1) Such information as is necessary to calculate the accompanying
royalty payment, or if no payment is owed for the month, to calculate
any portion of the minimum fee recouped during the month;
(2) The name, address, business title, telephone number, facsimile
number (if any), electronic mail address and other contact information
of the person to be contacted for information or questions concerning
the content of the statement of account;
(3) The account number assigned to the Licensee by the Collective
for the relevant Business Establishment Service offering (if the
Licensee has been notified of such account number by the Collective);
(4) The signature of:
(i) The owner of the Licensee or a duly authorized agent of the
owner, if the Licensee is not a partnership or corporation;
(ii) A partner or delegee, if the Licensee is a partnership; or
(iii) An officer of the corporation, if the Licensee is a
corporation;
(5) The printed or typewritten name of the person signing the
statement of account;
(6) The date of signature;
(7) If the Licensee is a partnership or corporation, the title or
official position held in the partnership or corporation by the person
signing the statement of account;
(8) A certification of the capacity of the person signing; and
(9) A statement to the following effect:
I, the undersigned owner or agent of the Licensee, or officer or
partner, have examined this statement of account and hereby state that
it is true, accurate and complete to my knowledge after reasonable due
diligence.
(h) International Standard Recording Codes. Notwithstanding Sec.
370.4(d)(2)(v) of this chapter, the Licensee must use International
Standard Recording Codes (ISRCs) in its Reports of Use, where available
and feasible.
(i) * * *
(1) * * * However, in any case in which a Licensee has not provided
a compliant Report of Use, whether for the License Period or otherwise,
and the board of directors of the Collective determines that further
efforts to seek the missing Report of Use from the Licensee would not
be warranted, the Collective may determine that it will distribute the
royalties associated with the Licensee's missing Report of Use on the
basis of a proxy data set approved by the board of directors of the
Collective.
* * * * *
David P. Shaw,
Chief Copyright Royalty Judge.
[FR Doc. 2023-21123 Filed 10-3-23; 8:45 am]
BILLING CODE 1410-72-P
