Determination of Rates and Terms for Digital Performance of Sound Recordings and Making of Ephemeral Copies To Facilitate Those Performances (Web VI), 82543-82546 [2024-23426]
Download as PDF
<![CDATA[
Federal Register / Vol. 89, No. 198 / Friday, October 11, 2024 / Proposed Rules
(2) A filer’s lack of knowledge about
the reporting requirements;
(3) Routine or purposeful data
expungement by the filer or a third
party; and
(4) A filer’s failure to plan for
adequate data security, maintenance, or
transfer (e.g., data loss due to a change
in vendor or employee succession
where the filer or vendor failed to back
up the data).
without change in eCRB at https://
app.crb.gov, including any personal
information provided.
Docket: For access to the docket to
read submitted background documents
or comments, go to eCRB, the Copyright
Royalty Board’s electronic filing and
case management system, at https://
app.crb.gov/, and search for docket
number 23–CRB–0012–WR (2026–
2030).
Charlotte A. Burrows,
Chair, Equal Employment Opportunity
Commission.
FOR FURTHER INFORMATION CONTACT:
Anita Brown, CRB Program Specialist,
at (202) 707–7658 or crb@loc.gov.
SUPPLEMENTARY INFORMATION:
[FR Doc. 2024–23327 Filed 10–10–24; 8:45 am]
BILLING CODE 6570–01–P
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 380
[Docket No 23–CRB–0012–WR (2026–2030)]
Determination of Rates and Terms for
Digital Performance of Sound
Recordings and Making of Ephemeral
Copies To Facilitate Those
Performances (Web VI)
Copyright Royalty Board (CRB),
Library of Congress.
ACTION: Proposed rule related to
noncommercial educational webcasters.
AGENCY:
The Copyright Royalty Judges
are publishing for comment proposed
regulations governing the rates and
terms for the digital performance of
sound recordings by noncommercial
educational webcasters and for the
making of ephemeral recordings
necessary for the facilitation of such
transmissions for the period
commencing January 1, 2026, and
ending on December 31, 2030.
DATES: Comments and objections, if any,
are due November 12, 2024.
ADDRESSES: You may submit comments
using eCRB, the Copyright Royalty
Board’s online electronic filing
application, at https://app.crb.gov/.
Instructions: To send your comment
through eCRB, if you don’t have a user
account, you will first need to register
for an account and wait for your
registration to be approved. Approval of
user accounts is only available during
business hours. Once you have an
approved account, you can only sign in
and file your comment after setting up
multi-factor authentication, which can
be done at any time of day. All
comments must include the Copyright
Royalty Board name and the docket
number for this proposed rule. All
properly filed comments will appear
ddrumheller on DSK120RN23PROD with PROPOSALS1
SUMMARY:
VerDate Sep<11>2014
16:39 Oct 10, 2024
Jkt 265001
Background
Section 114 of the Copyright Act, title
17 of the United States Code, provides
a statutory license that allows for the
public performance of sound recordings
by means of a digital audio transmission
by, among others, eligible
nonsubscription transmission services.
17 U.S.C. 114(f). For purposes of the
section 114 license, an ‘‘eligible
nonsubscription transmission’’ is a
noninteractive digital audio
transmission that does not require a
subscription for receiving the
transmission. The transmission must
also be made as part of a service that
provides audio programming consisting
in whole or in part of performances of
sound recordings the purpose of which
is to provide audio or other
entertainment programming, but not to
sell, advertise, or promote particular
goods or services. See 17 U.S.C.
114(j)(6).
Services using the section 114 license
may need to make one or more
temporary or ‘‘ephemeral’’ copies of a
sound recording to facilitate the
transmission of that recording. The
section 112 statutory license allows for
the making of these ephemeral
reproductions. 17 U.S.C. 112(e).
Chapter 8 of the Copyright Act
requires the Judges to conduct
proceedings every five years to
determine the rates and terms for the
sections 114 and 112 statutory licenses.
17 U.S.C. 801(b)(1), 804(b)(3)(A). The
current proceeding commenced in
January 2024 for rates and terms that
will become effective on January 1,
2026, and end on December 31, 2030.
Pursuant to section 804(b)(3)(A), the
Judges published in the Federal
Register a notice commencing the
proceeding and requesting that
interested parties submit their petitions
to participate. 89 FR 812 (Jan. 5, 2024).
SoundExchange, Inc.
(‘‘SoundExchange’’), and College
Broadcasters, Inc. (‘‘CBI’’) each filed
Petitions to Participate, as did others.
PO 00000
Frm 00025
Fmt 4702
Sfmt 4702
82543
On September 13, 2024, the Copyright
Royalty Judges (Judges) received a joint
motion from SoundExchange and CBI to
adopt a partial settlement of their
interests regarding Web VI rates and
terms for 2026–2030 and seeking
approval of that partial settlement. Joint
Motion to Adopt Partial Settlement,
Docket No. 23–CRB–0012–WR (2026–
2030). Their interests concern the rule
setting copyright royalty minimum fees
and terms that the Judges will establish
for compulsory copyright licenses for
certain internet transmissions of sound
recordings by college radio stations and
other noncommercial educational
webcasters for the period from January
1, 2026, through December 31, 2030.
SoundExchange represents the interests
of sound recording copyright owners
and performers. CBI represents the
interests of users of the copyrighted
material which users include college,
university, and high school radio and
television stations and other electronic
media organizations. The Judges hereby
publish the proposal and request
comments from the public.
Statutory Timing of Adoption of Rates
and Terms
Section 801(b)(7)(A) of the Copyright
Act authorizes the Judges to adopt
royalty rates and terms negotiated by
‘‘some or all of the participants in a
proceeding at any time during the
proceeding’’ provided they are
submitted to the Judges for approval.
The Judges must provide ‘‘an
opportunity to comment on the
agreement’’ to participants and nonparticipants in the rate proceeding who
‘‘would be bound by the terms, rates, or
other determination set by any
agreement. . . .’’ 17 U.S.C.
801(b)(7)(A)(i). Participants in the
proceeding may also ‘‘object to [the
agreement’s] adoption as a basis for
statutory terms and rates.’’ Id.
The Judges ‘‘may decline to adopt the
agreement as a basis for statutory terms
and rates for participants that are not
parties to the agreement,’’ only ‘‘if any
participant [in the proceeding] objects to
the agreement and the [Judges]
conclude, based on the record before
them if one exists, that the agreement
does not provide a reasonable basis for
setting statutory terms or rates.’’ 17
U.S.C. 801(b)(7)(A)(ii), or where the
negotiated agreement includes
provisions that are contrary to the
provisions of the applicable license(s) or
otherwise contrary to statutory law. See
Scope of the Copyright Royalty Judges
Authority to Adopt Confidentiality
Requirements upon Copyright Owners
within a Voluntarily Negotiated License
Agreement, 78 FR 47421, 47422 (Aug. 5,
E:\FR\FM\11OCP1.SGM
11OCP1
82544
Federal Register / Vol. 89, No. 198 / Friday, October 11, 2024 / Proposed Rules
2013), citing 74 FR 4537, 4540 (Jan. 26,
2009).
Any rates and terms adopted pursuant
to this provision would be binding on
all copyright owners of sound
recordings, college radio stations, and
other noncommercial educational
webcasters performing the sound
recordings for the license period 2026–
2030.
Subpart C—Noncommercial Educational
Webcasters
Sec.
380.20 Definitions.
380.21 Royalty fees for the public
performance of sound recordings and for
ephemeral recordings.
380.22 Terms for making payment of
royalty fees and statements of account.
Proposed Adjustments to Rates and
Terms
According to SoundExchange and
CBI, the agreement generally continues
in effect the current provisions of 37
CFR part 380, subpart C, which were
themselves adopted pursuant to 17
U.S.C. 801(b)(7)(A) as part of the Web V
proceeding, with four primary changes:
(1) the minimum fee applicable to
noncommercial educational webcasters
will increase by $50 per year throughout
the rate period; (2) the threshold for
usage covered by the minimum fee is
increased from 159,140 Aggregate
Tuning Hours (‘‘ATH’’) to 160,000 ATH;
(3) the reporting and payment period
applicable in the event a
Noncommercial Educational Webcaster
makes total transmissions in excess of
160,000 ATH in a given month is
reduced from 45 days to 30 days; and
(4) a clarification concerning the
counting of channels and stations has
been added. Joint Motion at 6.
Those who would be bound by the
terms, rates, or other determination set
by the agreement may comment on, and
proceeding participants may object to,
any or all of the proposed regulations
contained in this document. Such
comments and objections must be
submitted no later than November 12,
2024.
For purposes of this subpart, the
following definitions apply, as well as
those set forth in subpart A of this part:
Educational Transmission means an
eligible nonsubscription transmission
(as defined in 17 U.S.C. 114(j)(6)) made
by a Noncommercial Educational
Webcaster over the internet.
Noncommercial Educational
Webcaster means a noncommercial
webcaster (as defined in 17 U.S.C.
114(f)(4)(E)(i)) that:
(1) Has obtained a compulsory license
under 17 U.S.C. 112(e) and 114 and the
implementing regulations therefor to
make Educational Transmissions and
related Ephemeral Recordings;
(2) Complies with all applicable
provisions of Sections 112(e) and 114
and applicable regulations in 37 CFR
part 380;
(3) Is directly operated by, or is
affiliated with and officially sanctioned
by, and the digital audio transmission
operations of which are staffed
substantially by students enrolled at, a
domestically accredited primary or
secondary school, college, university or
other post-secondary degree-granting
educational institution;
(4) Is not a ‘‘public broadcasting
entity’’ (as defined in 17 U.S.C. 118(f))
qualified to receive funding from the
Corporation for Public Broadcasting
pursuant to its criteria; and
(5) Takes affirmative steps not to
make total transmissions in excess of
160,000 Aggregate Tuning Hours (ATH)
on any individual channel or station in
any month, if in any previous calendar
year it has made total transmissions in
excess of 160,000 ATH on any
individual channel or station in any
month.
List of Subjects in 37 CFR Part 380
Copyright, Sound recordings,
Webcasters.
ddrumheller on DSK120RN23PROD with PROPOSALS1
Proposed Regulations
For the reasons set forth in the
preamble, the Copyright Royalty Judges
propose to amend 37 CFR part 380 as
follows:
PART 380—RATES AND TERMS FOR
TRANSMISSIONS BY ELIGIBLE
NONSUBSCRIPTION SERVICES AND
NEW SUBSCRIPTION SERVICES AND
FOR THE MAKING OF EPHEMERAL
REPRODUCTIONS TO FACILITATE
THOSE TRANSMISSIONS
1. The authority citation for part 380
continues to read as follows:
■
Authority: 17 U.S.C. 112(e), 114(f),
804(b)(3).
■
2. Revise subpart C to read as follows:
VerDate Sep<11>2014
16:39 Oct 10, 2024
Jkt 265001
§ 380.20
Definitions.
§ 380.21 Royalty fees for the public
performance of sound recordings and for
ephemeral recordings.
(a) Minimum fee for eligible
Noncommercial Educational
Webcasters. Each Noncommercial
Educational Webcaster that did not
exceed 160,000 total ATH for any
individual channel or station for more
than one calendar month in the
immediately preceding calendar year
and does not expect to make total
transmissions in excess of 160,000 ATH
on any individual channel or station in
PO 00000
Frm 00026
Fmt 4702
Sfmt 4702
any calendar month during the
applicable calendar year shall pay an
annual, nonrefundable minimum fee in
the amount set forth in paragraphs (a)(1)
through (5) of this section (the
‘‘Minimum Fee’’) for each of its
individual channels, including each of
its individual side channels, and each of
its individual stations, through which
(in each case) it makes Educational
Transmissions, for each calendar year it
makes Educational Transmissions
subject to this subpart. For clarity, each
individual stream (e.g., HD radio side
channels, different stations owned by a
single licensee) will be treated
separately and be subject to a separate
Minimum Fee. However, all of the
streams of Digital Audio Transmissions
of music programming by a
Noncommercial Educational Webcaster,
or by a group of affiliated
Noncommercial Educational
Webcasters, that are the same or have
only immaterial variations (e.g.,
differences in station identification,
acknowledgement of sponsors or
occasional substitute programming)
shall be treated as part of one channel
or station for purposes of this section.
For this purpose, two Noncommercial
Educational Webcasters shall be
considered affiliates if one is
controlling, controlled by, or under
common control with the other. This
principle applies whether the streams
are offered from only a single outlet or
through multiple outlets (e.g., websites,
broadcast radio station simulcasts,
aggregators, mobile applications or other
online locations where listeners can
access music streaming). The Minimum
Fee shall constitute the annual per
channel or per station royalty for all
Educational Transmissions totaling not
more than 160,000 ATH in a month on
any individual channel or station, and
for Ephemeral Recordings to enable
such Educational Transmissions. In
addition, a Noncommercial Educational
Webcaster electing the reporting waiver
described in § 380.22(d)(1) shall pay a
$100 annual fee (the ‘‘Proxy Fee’’) to the
Collective (for purposes of this subpart,
the term ‘‘Collective’’ refers to
SoundExchange, Inc.). The Minimum
Fee for each year of the royalty period
is:
(1) 2026: $800;
(2) 2027: $850;
(3) 2028: $900;
(4) 2029: $950; and
(5) 2030: $1,000.
(b) Consequences of unexpectedly
exceeding the ATH cap. In the case of
a Noncommercial Educational
Webcaster eligible to pay royalties
under paragraph (a) of this section that
unexpectedly makes total transmissions
E:\FR\FM\11OCP1.SGM
11OCP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 198 / Friday, October 11, 2024 / Proposed Rules
in excess of 160,000 ATH on any
individual channel or station in any
calendar month during the applicable
calendar year:
(1) The Noncommercial Educational
Webcaster shall, for such month and the
remainder of the calendar year in which
such month occurs, pay royalties in
accordance, and otherwise comply, with
the provisions of subpart B of this part
applicable to Noncommercial
Webcasters;
(2) The Minimum Fee paid by the
Noncommercial Educational Webcaster
for such calendar year will be credited
to the amounts payable under the
provisions of subpart B of this part
applicable to Noncommercial
Webcasters; and
(3) The Noncommercial Educational
Webcaster shall, within 30 days after the
end of each month, notify the Collective
if it has made total transmissions in
excess of 160,000 ATH on a channel or
station during that month; pay the
Collective any amounts due under the
provisions of subpart B of this part
applicable to Noncommercial
Webcasters; and provide the Collective
a statement of account pursuant to
subpart A of this part.
(c) Royalties for other Noncommercial
Educational Webcasters. A
Noncommercial Educational Webcaster
that is not eligible to pay royalties under
paragraph (a) of this section shall pay
royalties in accordance, and otherwise
comply, with the provisions of subpart
B of this part applicable to
Noncommercial Webcasters.
(d) Estimation of performances. In the
case of a Noncommercial Educational
Webcaster that is required to pay
royalties under paragraph (b) or (c) of
this section on a per-Performance basis,
that is unable to calculate actual total
Performances, and that is not required
to report actual total performances
under § 380.22(d)(3), the
Noncommercial Educational Webcaster
may pay its applicable royalties on an
ATH basis, provided that the
Noncommercial Educational Webcaster
shall calculate such royalties at the
applicable per-Performance rates based
on the assumption that the number of
sound recordings performed is 12 per
hour. The Collective may distribute
royalties paid on the basis of ATH
hereunder in accordance with its
generally applicable methodology for
distributing royalties paid on such basis.
In addition, and for the avoidance of
doubt, a Noncommercial Educational
Webcaster offering more than one
channel or station shall pay perPerformance royalties on a per-channel
or -station basis.
VerDate Sep<11>2014
16:39 Oct 10, 2024
Jkt 265001
(e) Allocation between ephemeral
recordings and performance royalty
fees. The Collective must credit 5% of
all royalty payments as payment for
Ephemeral Recordings and credit the
remaining 95% to section 114 royalties.
All Ephemeral Recordings that a
Licensee makes which are necessary
and commercially reasonable for making
Educational Transmissions are included
in the 5%.
§ 380.22 Terms for making payment of
royalty fees and statements of account.
(a) Payment to the Collective. A
Noncommercial Educational Webcaster
shall make the royalty payments due
under § 380.21 to the Collective.
(b) Minimum fee. Noncommercial
Educational Webcasters shall submit the
Minimum Fee, and Proxy Fee if
applicable (see paragraph (d) of this
section), accompanied by a statement of
account, by January 31st of each
calendar year, except that payment of
the Minimum Fee, and Proxy Fee if
applicable, by a Noncommercial
Educational Webcaster that was not
making Educational Transmissions or
Ephemeral Recordings pursuant to the
licenses in 17 U.S.C. 114 and/or 17
U.S.C. 112(e) as of January 31st of each
calendar year but begins doing so
thereafter shall be due by the 30th day
after the end of the month in which the
Noncommercial Educational Webcaster
commences doing so. At the same time
the Noncommercial Educational
Webcaster must identify all its stations
making Educational Transmissions and
identify which of the reporting options
set forth in paragraph (d) of this section
it elects for the relevant year (provided
that it must be eligible for the option it
elects).
(c) Statements of account. Any
payment due under paragraph (a) of this
section shall be accompanied by a
corresponding statement of account on
a form provided by the Collective. A
statement of account shall contain the
following information:
(1) The name of the Noncommercial
Educational Webcaster, exactly as it
appears on the notice of use, and if the
statement of account covers a single
station only, the call letters or name of
the station;
(2) The name, address, business title,
telephone number, facsimile number (if
any), electronic mail address (if any)
and other contact information of the
person to be contacted for information
or questions concerning the content of
the statement of account;
(3) The signature of a duly authorized
representative of the applicable
educational institution;
PO 00000
Frm 00027
Fmt 4702
Sfmt 4702
82545
(4) The printed or typewritten name
of the person signing the statement of
account;
(5) The date of signature;
(6) The title or official position held
by the person signing the statement of
account;
(7) A certification of the capacity of
the person signing; and
(8) A statement to the following effect:
‘‘I, the undersigned duly authorized
representative of the applicable
educational institution, have examined
this statement of account; hereby state
that it is true, accurate, and complete to
my knowledge after reasonable due
diligence; and further certify that the
licensee entity named herein qualifies
as a Noncommercial Educational
Webcaster for the relevant year, and did
not exceed 160,000 total ATH in any
month of the prior year for which the
Noncommercial Educational Webcaster
did not submit a statement of account
and pay any required additional
royalties.’’
(d) Reporting by Noncommercial
Educational Webcasters in general—(1)
Reporting waiver. In light of the unique
business and operational circumstances
with respect to Noncommercial
Educational Webcasters, and for the
purposes of this subpart only, a
Noncommercial Educational Webcaster
that did not exceed 80,000 total ATH for
any individual channel or station for
more than one calendar month in the
immediately preceding calendar year
and that does not expect to exceed
80,000 total ATH for any individual
channel or station for any calendar
month during the applicable calendar
year may elect to pay to the Collective
a nonrefundable, annual Proxy Fee of
$100 in lieu of providing reports of use
for the calendar year pursuant to the
regulations at § 370.4 of this chapter. In
addition, a Noncommercial Educational
Webcaster that unexpectedly exceeded
80,000 total ATH on one or more
channels or stations for more than one
month during the immediately
preceding calendar year may elect to
pay the Proxy Fee and receive the
reporting waiver described in this
paragraph (d)(1) during a calendar year,
if it implements measures reasonably
calculated to ensure that it will not
make Educational Transmissions
exceeding 80,000 total ATH during any
month of that calendar year. The Proxy
Fee is intended to defray the
Collective’s costs associated with the
reporting waiver in this paragraph
(d)(1), including development of proxy
usage data. The Proxy Fee shall be paid
by the date specified in paragraph (b) of
this section for paying the Minimum
Fee for the applicable calendar year and
E:\FR\FM\11OCP1.SGM
11OCP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
82546
Federal Register / Vol. 89, No. 198 / Friday, October 11, 2024 / Proposed Rules
shall be accompanied by a certification
on a form provided by the Collective,
signed by a duly authorized
representative of the applicable
educational institution, stating that the
Noncommercial Educational Webcaster
is eligible for the Proxy Fee option
because of its past and expected future
usage and, if applicable, has
implemented measures to ensure that it
will not make excess Educational
Transmissions in the future.
(2) Sample-basis reports. A
Noncommercial Educational Webcaster
that did not exceed 160,000 total ATH
for any individual channel or station for
more than one calendar month in the
immediately preceding calendar year
and that does not expect to exceed
160,000 total ATH for any individual
channel or station for any calendar
month during the applicable calendar
year may elect to provide reports of use
on a sample basis (two weeks per
calendar quarter) in accordance with the
regulations at § 370.4 of this chapter,
except that, notwithstanding
§ 370.4(d)(2)(vi) of this chapter, such an
electing Noncommercial Educational
Webcaster shall not be required to
include ATH or actual total
performances and may in lieu thereof
provide channel or station name and
play frequency. Notwithstanding the
preceding sentence, a Noncommercial
Educational Webcaster that is able to
report ATH or actual total performances
is encouraged to do so. These reports of
use shall be submitted to the Collective
no later than January 31st of the year
immediately following the year to
which they pertain.
(3) Census-basis reports. (i) If any of
the conditions in paragraphs (d)(3)(i)(A)
through (C) of this section is satisfied,
a Noncommercial Educational
Webcaster must report pursuant to
paragraph (d)(3) of this section:
(A) The Noncommercial Educational
Webcaster exceeded 160,000 total ATH
for any individual channel or station for
more than one calendar month in the
immediately preceding calendar year;
(B) The Noncommercial Educational
Webcaster expects to exceed 160,000
total ATH for any individual channel or
station for any calendar month in the
applicable calendar year; or
(C) The Noncommercial Educational
Webcaster otherwise does not elect to be
subject to paragraph (d)(1) or (2) of this
section.
(ii) A Noncommercial Educational
Webcaster required to report pursuant to
paragraph (d)(3)(i) of this section shall
provide reports of use to the Collective
quarterly on a census reporting basis in
accordance with § 370.4 of this chapter,
except that, notwithstanding
VerDate Sep<11>2014
16:39 Oct 10, 2024
Jkt 265001
§ 370.4(d)(2), such a Noncommercial
Educational Webcaster shall not be
required to include ATH or actual total
performances, and may in lieu thereof
provide channel or station name and
play frequency, during the first calendar
year it reports in accordance with this
paragraph (d)(3). For the avoidance of
doubt, after a Noncommercial
Educational Webcaster has been
required to report in accordance with
paragraph (d)(3)(i) of this section for a
full calendar year, it must thereafter
include ATH or actual total
Performances in its reports of use. All
reports of use under paragraph (d)(3)(i)
of this section shall be submitted to the
Collective no later than the 30th day
after the end of each calendar quarter.
(e) Server logs. Noncommercial
Educational Webcasters shall retain for
a period of no less than three full
calendar years server logs sufficient to
substantiate all information relevant to
eligibility, rate calculation and reporting
under this subpart. To the extent that a
third-party Web hosting or service
provider maintains equipment or
software for a Noncommercial
Educational Webcaster and/or such
third party creates, maintains, or can
reasonably create such server logs, the
Noncommercial Educational Webcaster
shall direct that such server logs be
created and maintained by said third
party for a period of no less than three
full calendar years and/or that such
server logs be provided to, and
maintained by, the Noncommercial
Educational Webcaster.
(f) Terms in general. Subject to the
provisions of this subpart, terms
governing late fees, distribution of
royalties by the Collective, unclaimed
funds, record retention requirements,
treatment of Licensees’ confidential
information, audit of royalty payments
and distributions, and any definitions
for applicable terms not defined in this
subpart shall be those set forth in
subpart A of this part.
Dated October 4, 2024.
David P. Shaw,
Chief Copyright Royalty Judge.
[FR Doc. 2024–23426 Filed 10–10–24; 8:45 am]
BILLING CODE 1410–72–P
PO 00000
Frm 00028
Fmt 4702
Sfmt 4702
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 14
RIN 2900–AR94
Improving Accreditation Process and
Strengthening Legal Education
Requirements for Accredited Agents
and Attorneys
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) is proposing to amend its
regulations concerning accreditation of
agents (also referred to as ‘‘claims
agents’’) and attorneys authorized to
assist claimants with the preparation
presentation and prosecution of claims
for VA benefits to strengthen initial and
continuing legal education (CLE)
requirements for accredited agents and
attorneys and to improve the efficiency
of VA’s process of accrediting agents
and attorneys and the administration of
the accreditation program.
DATES: Comments must be received on
or before December 10, 2024.
ADDRESSES: Comments must be
submitted through www.regulations.gov.
Except as provided below, comments
received before the close of the
comment period will be available at
www.regulations.gov for public viewing,
inspection, or copying, including any
personally identifiable or confidential
business information that is included in
a comment. We post the comments
received before the close of the
comment period on
www.regulations.gov as soon as possible
after they have been received. VA will
not post on Regulations.gov public
comments that make threats to
individuals or institutions or suggest
that the commenter will take actions to
harm an individual. VA encourages
individuals not to submit duplicative
comments; however, we will post
comments from multiple unique
commenters even if the content is
identical or nearly identical to other
comments. Any public comment
received after the comment period’s
closing date is considered late and will
not be considered in the final
rulemaking. In accordance with the
Providing Accountability Through
Transparency Act of 2023, a plain
language summary (not more than 100
words in length) of this proposed rule
is available at www.regulations.gov,
under RIN 2900–AR94.
FOR FURTHER INFORMATION CONTACT:
Jonathan Taylor, Office of the General
Counsel, (022D), Department of
SUMMARY:
E:\FR\FM\11OCP1.SGM
11OCP1
]]>Agencies
[Federal Register Volume 89, Number 198 (Friday, October 11, 2024)]
[Proposed Rules]
[Pages 82543-82546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23426]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 380
[Docket No 23-CRB-0012-WR (2026-2030)]
Determination of Rates and Terms for Digital Performance of Sound
Recordings and Making of Ephemeral Copies To Facilitate Those
Performances (Web VI)
AGENCY: Copyright Royalty Board (CRB), Library of Congress.
ACTION: Proposed rule related to noncommercial educational webcasters.
-----------------------------------------------------------------------
SUMMARY: The Copyright Royalty Judges are publishing for comment
proposed regulations governing the rates and terms for the digital
performance of sound recordings by noncommercial educational webcasters
and for the making of ephemeral recordings necessary for the
facilitation of such transmissions for the period commencing January 1,
2026, and ending on December 31, 2030.
DATES: Comments and objections, if any, are due November 12, 2024.
ADDRESSES: You may submit comments using eCRB, the Copyright Royalty
Board's online electronic filing application, at https://app.crb.gov/.
Instructions: To send your comment through eCRB, if you don't have
a user account, you will first need to register for an account and wait
for your registration to be approved. Approval of user accounts is only
available during business hours. Once you have an approved account, you
can only sign in and file your comment after setting up multi-factor
authentication, which can be done at any time of day. 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 submitted background
documents or comments, go to eCRB, the Copyright Royalty Board's
electronic filing and case management system, at https://app.crb.gov/,
and search for docket number 23-CRB-0012-WR (2026-2030).
FOR FURTHER INFORMATION CONTACT: Anita Brown, CRB Program Specialist,
at (202) 707-7658 or [email protected].
SUPPLEMENTARY INFORMATION:
Background
Section 114 of the Copyright Act, title 17 of the United States
Code, provides a statutory license that allows for the public
performance of sound recordings by means of a digital audio
transmission by, among others, eligible nonsubscription transmission
services. 17 U.S.C. 114(f). For purposes of the section 114 license, an
``eligible nonsubscription transmission'' is a noninteractive digital
audio transmission that does not require a subscription for receiving
the transmission. The transmission must also be made as part of a
service that provides audio programming consisting in whole or in part
of performances of sound recordings the purpose of which is to provide
audio or other entertainment programming, but not to sell, advertise,
or promote particular goods or services. See 17 U.S.C. 114(j)(6).
Services using the section 114 license may need to make one or more
temporary or ``ephemeral'' copies of a sound recording to facilitate
the transmission of that recording. The section 112 statutory license
allows for the making of these ephemeral reproductions. 17 U.S.C.
112(e).
Chapter 8 of the Copyright Act requires the Judges to conduct
proceedings every five years to determine the rates and terms for the
sections 114 and 112 statutory licenses. 17 U.S.C. 801(b)(1),
804(b)(3)(A). The current proceeding commenced in January 2024 for
rates and terms that will become effective on January 1, 2026, and end
on December 31, 2030. Pursuant to section 804(b)(3)(A), the Judges
published in the Federal Register a notice commencing the proceeding
and requesting that interested parties submit their petitions to
participate. 89 FR 812 (Jan. 5, 2024). SoundExchange, Inc.
(``SoundExchange''), and College Broadcasters, Inc. (``CBI'') each
filed Petitions to Participate, as did others.
On September 13, 2024, the Copyright Royalty Judges (Judges)
received a joint motion from SoundExchange and CBI to adopt a partial
settlement of their interests regarding Web VI rates and terms for
2026-2030 and seeking approval of that partial settlement. Joint Motion
to Adopt Partial Settlement, Docket No. 23-CRB-0012-WR (2026-2030).
Their interests concern the rule setting copyright royalty minimum fees
and terms that the Judges will establish for compulsory copyright
licenses for certain internet transmissions of sound recordings by
college radio stations and other noncommercial educational webcasters
for the period from January 1, 2026, through December 31, 2030.
SoundExchange represents the interests of sound recording copyright
owners and performers. CBI represents the interests of users of the
copyrighted material which users include college, university, and high
school radio and television stations and other electronic media
organizations. The Judges hereby publish the proposal and request
comments from the public.
Statutory Timing of Adoption of Rates and Terms
Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to
adopt royalty rates and terms negotiated by ``some or all of the
participants in a proceeding at any time during the proceeding''
provided they are submitted to the Judges for approval. The Judges must
provide ``an opportunity to comment on the agreement'' to participants
and non-participants in the rate proceeding who ``would be bound by the
terms, rates, or other determination set by any agreement. . . .'' 17
U.S.C. 801(b)(7)(A)(i). Participants in the proceeding may also
``object to [the agreement's] adoption as a basis for statutory terms
and rates.'' Id.
The Judges ``may decline to adopt the agreement as a basis for
statutory terms and rates for participants that are not parties to the
agreement,'' only ``if any participant [in the proceeding] objects to
the agreement and the [Judges] conclude, based on the record before
them if one exists, that the agreement does not provide a reasonable
basis for setting statutory terms or rates.'' 17 U.S.C.
801(b)(7)(A)(ii), or where the negotiated agreement includes provisions
that are contrary to the provisions of the applicable license(s) or
otherwise contrary to statutory law. See Scope of the Copyright Royalty
Judges Authority to Adopt Confidentiality Requirements upon Copyright
Owners within a Voluntarily Negotiated License Agreement, 78 FR 47421,
47422 (Aug. 5,
[[Page 82544]]
2013), citing 74 FR 4537, 4540 (Jan. 26, 2009).
Any rates and terms adopted pursuant to this provision would be
binding on all copyright owners of sound recordings, college radio
stations, and other noncommercial educational webcasters performing the
sound recordings for the license period 2026-2030.
Proposed Adjustments to Rates and Terms
According to SoundExchange and CBI, the agreement generally
continues in effect the current provisions of 37 CFR part 380, subpart
C, which were themselves adopted pursuant to 17 U.S.C. 801(b)(7)(A) as
part of the Web V proceeding, with four primary changes: (1) the
minimum fee applicable to noncommercial educational webcasters will
increase by $50 per year throughout the rate period; (2) the threshold
for usage covered by the minimum fee is increased from 159,140
Aggregate Tuning Hours (``ATH'') to 160,000 ATH; (3) the reporting and
payment period applicable in the event a Noncommercial Educational
Webcaster makes total transmissions in excess of 160,000 ATH in a given
month is reduced from 45 days to 30 days; and (4) a clarification
concerning the counting of channels and stations has been added. Joint
Motion at 6.
Those who would be bound by the terms, rates, or other
determination set by the agreement may comment on, and proceeding
participants may object to, any or all of the proposed regulations
contained in this document. Such comments and objections must be
submitted no later than November 12, 2024.
List of Subjects in 37 CFR Part 380
Copyright, Sound recordings, Webcasters.
Proposed Regulations
For the reasons set forth in the preamble, the Copyright Royalty
Judges propose to amend 37 CFR part 380 as follows:
PART 380--RATES AND TERMS FOR TRANSMISSIONS BY ELIGIBLE
NONSUBSCRIPTION SERVICES AND NEW SUBSCRIPTION SERVICES AND FOR THE
MAKING OF EPHEMERAL REPRODUCTIONS TO FACILITATE THOSE TRANSMISSIONS
0
1. The authority citation for part 380 continues to read as follows:
Authority: 17 U.S.C. 112(e), 114(f), 804(b)(3).
0
2. Revise subpart C to read as follows:
Subpart C--Noncommercial Educational Webcasters
Sec.
380.20 Definitions.
380.21 Royalty fees for the public performance of sound recordings
and for ephemeral recordings.
380.22 Terms for making payment of royalty fees and statements of
account.
Sec. 380.20 Definitions.
For purposes of this subpart, the following definitions apply, as
well as those set forth in subpart A of this part:
Educational Transmission means an eligible nonsubscription
transmission (as defined in 17 U.S.C. 114(j)(6)) made by a
Noncommercial Educational Webcaster over the internet.
Noncommercial Educational Webcaster means a noncommercial webcaster
(as defined in 17 U.S.C. 114(f)(4)(E)(i)) that:
(1) Has obtained a compulsory license under 17 U.S.C. 112(e) and
114 and the implementing regulations therefor to make Educational
Transmissions and related Ephemeral Recordings;
(2) Complies with all applicable provisions of Sections 112(e) and
114 and applicable regulations in 37 CFR part 380;
(3) Is directly operated by, or is affiliated with and officially
sanctioned by, and the digital audio transmission operations of which
are staffed substantially by students enrolled at, a domestically
accredited primary or secondary school, college, university or other
post-secondary degree-granting educational institution;
(4) Is not a ``public broadcasting entity'' (as defined in 17
U.S.C. 118(f)) qualified to receive funding from the Corporation for
Public Broadcasting pursuant to its criteria; and
(5) Takes affirmative steps not to make total transmissions in
excess of 160,000 Aggregate Tuning Hours (ATH) on any individual
channel or station in any month, if in any previous calendar year it
has made total transmissions in excess of 160,000 ATH on any individual
channel or station in any month.
Sec. 380.21 Royalty fees for the public performance of sound
recordings and for ephemeral recordings.
(a) Minimum fee for eligible Noncommercial Educational Webcasters.
Each Noncommercial Educational Webcaster that did not exceed 160,000
total ATH for any individual channel or station for more than one
calendar month in the immediately preceding calendar year and does not
expect to make total transmissions in excess of 160,000 ATH on any
individual channel or station in any calendar month during the
applicable calendar year shall pay an annual, nonrefundable minimum fee
in the amount set forth in paragraphs (a)(1) through (5) of this
section (the ``Minimum Fee'') for each of its individual channels,
including each of its individual side channels, and each of its
individual stations, through which (in each case) it makes Educational
Transmissions, for each calendar year it makes Educational
Transmissions subject to this subpart. For clarity, each individual
stream (e.g., HD radio side channels, different stations owned by a
single licensee) will be treated separately and be subject to a
separate Minimum Fee. However, all of the streams of Digital Audio
Transmissions of music programming by a Noncommercial Educational
Webcaster, or by a group of affiliated Noncommercial Educational
Webcasters, that are the same or have only immaterial variations (e.g.,
differences in station identification, acknowledgement of sponsors or
occasional substitute programming) shall be treated as part of one
channel or station for purposes of this section. For this purpose, two
Noncommercial Educational Webcasters shall be considered affiliates if
one is controlling, controlled by, or under common control with the
other. This principle applies whether the streams are offered from only
a single outlet or through multiple outlets (e.g., websites, broadcast
radio station simulcasts, aggregators, mobile applications or other
online locations where listeners can access music streaming). The
Minimum Fee shall constitute the annual per channel or per station
royalty for all Educational Transmissions totaling not more than
160,000 ATH in a month on any individual channel or station, and for
Ephemeral Recordings to enable such Educational Transmissions. In
addition, a Noncommercial Educational Webcaster electing the reporting
waiver described in Sec. 380.22(d)(1) shall pay a $100 annual fee (the
``Proxy Fee'') to the Collective (for purposes of this subpart, the
term ``Collective'' refers to SoundExchange, Inc.). The Minimum Fee for
each year of the royalty period is:
(1) 2026: $800;
(2) 2027: $850;
(3) 2028: $900;
(4) 2029: $950; and
(5) 2030: $1,000.
(b) Consequences of unexpectedly exceeding the ATH cap. In the case
of a Noncommercial Educational Webcaster eligible to pay royalties
under paragraph (a) of this section that unexpectedly makes total
transmissions
[[Page 82545]]
in excess of 160,000 ATH on any individual channel or station in any
calendar month during the applicable calendar year:
(1) The Noncommercial Educational Webcaster shall, for such month
and the remainder of the calendar year in which such month occurs, pay
royalties in accordance, and otherwise comply, with the provisions of
subpart B of this part applicable to Noncommercial Webcasters;
(2) The Minimum Fee paid by the Noncommercial Educational Webcaster
for such calendar year will be credited to the amounts payable under
the provisions of subpart B of this part applicable to Noncommercial
Webcasters; and
(3) The Noncommercial Educational Webcaster shall, within 30 days
after the end of each month, notify the Collective if it has made total
transmissions in excess of 160,000 ATH on a channel or station during
that month; pay the Collective any amounts due under the provisions of
subpart B of this part applicable to Noncommercial Webcasters; and
provide the Collective a statement of account pursuant to subpart A of
this part.
(c) Royalties for other Noncommercial Educational Webcasters. A
Noncommercial Educational Webcaster that is not eligible to pay
royalties under paragraph (a) of this section shall pay royalties in
accordance, and otherwise comply, with the provisions of subpart B of
this part applicable to Noncommercial Webcasters.
(d) Estimation of performances. In the case of a Noncommercial
Educational Webcaster that is required to pay royalties under paragraph
(b) or (c) of this section on a per-Performance basis, that is unable
to calculate actual total Performances, and that is not required to
report actual total performances under Sec. 380.22(d)(3), the
Noncommercial Educational Webcaster may pay its applicable royalties on
an ATH basis, provided that the Noncommercial Educational Webcaster
shall calculate such royalties at the applicable per-Performance rates
based on the assumption that the number of sound recordings performed
is 12 per hour. The Collective may distribute royalties paid on the
basis of ATH hereunder in accordance with its generally applicable
methodology for distributing royalties paid on such basis. In addition,
and for the avoidance of doubt, a Noncommercial Educational Webcaster
offering more than one channel or station shall pay per-Performance
royalties on a per-channel or -station basis.
(e) Allocation between ephemeral recordings and performance royalty
fees. The Collective must credit 5% of all royalty payments as payment
for Ephemeral Recordings and credit the remaining 95% to section 114
royalties. All Ephemeral Recordings that a Licensee makes which are
necessary and commercially reasonable for making Educational
Transmissions are included in the 5%.
Sec. 380.22 Terms for making payment of royalty fees and statements
of account.
(a) Payment to the Collective. A Noncommercial Educational
Webcaster shall make the royalty payments due under Sec. 380.21 to the
Collective.
(b) Minimum fee. Noncommercial Educational Webcasters shall submit
the Minimum Fee, and Proxy Fee if applicable (see paragraph (d) of this
section), accompanied by a statement of account, by January 31st of
each calendar year, except that payment of the Minimum Fee, and Proxy
Fee if applicable, by a Noncommercial Educational Webcaster that was
not making Educational Transmissions or Ephemeral Recordings pursuant
to the licenses in 17 U.S.C. 114 and/or 17 U.S.C. 112(e) as of January
31st of each calendar year but begins doing so thereafter shall be due
by the 30th day after the end of the month in which the Noncommercial
Educational Webcaster commences doing so. At the same time the
Noncommercial Educational Webcaster must identify all its stations
making Educational Transmissions and identify which of the reporting
options set forth in paragraph (d) of this section it elects for the
relevant year (provided that it must be eligible for the option it
elects).
(c) Statements of account. Any payment due under paragraph (a) of
this section shall be accompanied by a corresponding statement of
account on a form provided by the Collective. A statement of account
shall contain the following information:
(1) The name of the Noncommercial Educational Webcaster, exactly as
it appears on the notice of use, and if the statement of account covers
a single station only, the call letters or name of the station;
(2) The name, address, business title, telephone number, facsimile
number (if any), electronic mail address (if any) and other contact
information of the person to be contacted for information or questions
concerning the content of the statement of account;
(3) The signature of a duly authorized representative of the
applicable educational institution;
(4) The printed or typewritten name of the person signing the
statement of account;
(5) The date of signature;
(6) The title or official position held by the person signing the
statement of account;
(7) A certification of the capacity of the person signing; and
(8) A statement to the following effect:
``I, the undersigned duly authorized representative of the
applicable educational institution, have examined this statement of
account; hereby state that it is true, accurate, and complete to my
knowledge after reasonable due diligence; and further certify that the
licensee entity named herein qualifies as a Noncommercial Educational
Webcaster for the relevant year, and did not exceed 160,000 total ATH
in any month of the prior year for which the Noncommercial Educational
Webcaster did not submit a statement of account and pay any required
additional royalties.''
(d) Reporting by Noncommercial Educational Webcasters in general--
(1) Reporting waiver. In light of the unique business and operational
circumstances with respect to Noncommercial Educational Webcasters, and
for the purposes of this subpart only, a Noncommercial Educational
Webcaster that did not exceed 80,000 total ATH for any individual
channel or station for more than one calendar month in the immediately
preceding calendar year and that does not expect to exceed 80,000 total
ATH for any individual channel or station for any calendar month during
the applicable calendar year may elect to pay to the Collective a
nonrefundable, annual Proxy Fee of $100 in lieu of providing reports of
use for the calendar year pursuant to the regulations at Sec. 370.4 of
this chapter. In addition, a Noncommercial Educational Webcaster that
unexpectedly exceeded 80,000 total ATH on one or more channels or
stations for more than one month during the immediately preceding
calendar year may elect to pay the Proxy Fee and receive the reporting
waiver described in this paragraph (d)(1) during a calendar year, if it
implements measures reasonably calculated to ensure that it will not
make Educational Transmissions exceeding 80,000 total ATH during any
month of that calendar year. The Proxy Fee is intended to defray the
Collective's costs associated with the reporting waiver in this
paragraph (d)(1), including development of proxy usage data. The Proxy
Fee shall be paid by the date specified in paragraph (b) of this
section for paying the Minimum Fee for the applicable calendar year and
[[Page 82546]]
shall be accompanied by a certification on a form provided by the
Collective, signed by a duly authorized representative of the
applicable educational institution, stating that the Noncommercial
Educational Webcaster is eligible for the Proxy Fee option because of
its past and expected future usage and, if applicable, has implemented
measures to ensure that it will not make excess Educational
Transmissions in the future.
(2) Sample-basis reports. A Noncommercial Educational Webcaster
that did not exceed 160,000 total ATH for any individual channel or
station for more than one calendar month in the immediately preceding
calendar year and that does not expect to exceed 160,000 total ATH for
any individual channel or station for any calendar month during the
applicable calendar year may elect to provide reports of use on a
sample basis (two weeks per calendar quarter) in accordance with the
regulations at Sec. 370.4 of this chapter, except that,
notwithstanding Sec. 370.4(d)(2)(vi) of this chapter, such an electing
Noncommercial Educational Webcaster shall not be required to include
ATH or actual total performances and may in lieu thereof provide
channel or station name and play frequency. Notwithstanding the
preceding sentence, a Noncommercial Educational Webcaster that is able
to report ATH or actual total performances is encouraged to do so.
These reports of use shall be submitted to the Collective no later than
January 31st of the year immediately following the year to which they
pertain.
(3) Census-basis reports. (i) If any of the conditions in
paragraphs (d)(3)(i)(A) through (C) of this section is satisfied, a
Noncommercial Educational Webcaster must report pursuant to paragraph
(d)(3) of this section:
(A) The Noncommercial Educational Webcaster exceeded 160,000 total
ATH for any individual channel or station for more than one calendar
month in the immediately preceding calendar year;
(B) The Noncommercial Educational Webcaster expects to exceed
160,000 total ATH for any individual channel or station for any
calendar month in the applicable calendar year; or
(C) The Noncommercial Educational Webcaster otherwise does not
elect to be subject to paragraph (d)(1) or (2) of this section.
(ii) A Noncommercial Educational Webcaster required to report
pursuant to paragraph (d)(3)(i) of this section shall provide reports
of use to the Collective quarterly on a census reporting basis in
accordance with Sec. 370.4 of this chapter, except that,
notwithstanding Sec. 370.4(d)(2), such a Noncommercial Educational
Webcaster shall not be required to include ATH or actual total
performances, and may in lieu thereof provide channel or station name
and play frequency, during the first calendar year it reports in
accordance with this paragraph (d)(3). For the avoidance of doubt,
after a Noncommercial Educational Webcaster has been required to report
in accordance with paragraph (d)(3)(i) of this section for a full
calendar year, it must thereafter include ATH or actual total
Performances in its reports of use. All reports of use under paragraph
(d)(3)(i) of this section shall be submitted to the Collective no later
than the 30th day after the end of each calendar quarter.
(e) Server logs. Noncommercial Educational Webcasters shall retain
for a period of no less than three full calendar years server logs
sufficient to substantiate all information relevant to eligibility,
rate calculation and reporting under this subpart. To the extent that a
third-party Web hosting or service provider maintains equipment or
software for a Noncommercial Educational Webcaster and/or such third
party creates, maintains, or can reasonably create such server logs,
the Noncommercial Educational Webcaster shall direct that such server
logs be created and maintained by said third party for a period of no
less than three full calendar years and/or that such server logs be
provided to, and maintained by, the Noncommercial Educational
Webcaster.
(f) Terms in general. Subject to the provisions of this subpart,
terms governing late fees, distribution of royalties by the Collective,
unclaimed funds, record retention requirements, treatment of Licensees'
confidential information, audit of royalty payments and distributions,
and any definitions for applicable terms not defined in this subpart
shall be those set forth in subpart A of this part.
Dated October 4, 2024.
David P. Shaw,
Chief Copyright Royalty Judge.
[FR Doc. 2024-23426 Filed 10-10-24; 8:45 am]
BILLING CODE 1410-72-P
