[Federal Register Volume 62, Number 191 (Thursday, October 2, 1997)]
[Proposed Rules]
[Pages 51619-51621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26062]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 253
[Docket No. 96-6 CARP NCBRA]
Noncommercial Educational Broadcasting Compulsory License
AGENCY: Copyright Office, Library of Congress.
ACTION: Request for comments.
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SUMMARY: The Copyright Office of the Library of Congress is submitting
for public comment certain settlement proposals for the adjustment of
the royalty rates for the noncommercial educational broadcasting
compulsory license.
DATES: Comments and notices of intent to participate are due by
November 3, 1997.
ADDRESSES: If sent by mail, an original and five copies of comments,
and Notices of Intent to Participate, should be addressed to: Copyright
Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station,
Washington, D.C. 20024. If hand delivered, an original and five copies
of comments, and Notices of Intent to Participate, should be brought
to: Office of the Copyright General Counsel, James Madison Memorial
Building, Room LM-403, First and Independence Avenue, S.E., Washington,
D.C. 20559-6000.
FOR FURTHER INFORMATION CONTACT: William J. Roberts, Senior Attorney,
or Tanya Sandros, Attorney Advisor, Copyright Arbitration Royalty Panel
(CARP), P.O. Box 70977, Southwest Station, Washington, D.C. 20024.
Telephone (202) 707-8380. Telfax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
Background
Section 118 of the Copyright Act, 17 U.S.C., creates a compulsory
license for the use of certain copyrighted works in connection with
noncommercial broadcasting. Terms and rates for this compulsory
license, applicable to parties who are not subject to privately
negotiated licenses, are published in 37 CFR part 253 and are subject
to adjustment at five year intervals. The last adjustment of the terms
and rates for the section 118 license occurred in 1992, making 1997 a
window year for the adjustment of these terms and rates.
On October 18, 1996, the Library published a notice in the Federal
Register requesting comments from interested parties as to the need for
a CARP proceeding to adjust the section 118 terms and rates. 61 FR
54459 (Oct. 18, 1996). After a protracted negotiation period, certain
parties identified the need for a CARP proceeding, and the Library has
announced the precontroversy discovery period and the initiation of the
CARP. Order in Docket No. 96-6 CARP NCBRA (July 30, 1997).
Most of the rates and terms adopted for the section 118 license are
for the use of works of copyright owners represented by one or more of
the performing rights societies or organizations. Although not all
copyright owners belong to such organizations, their works are
nonetheless subject to usage under the section 118 license. It is,
therefore, necessary to adopt royalty terms and rates for those
``unaffiliated'' copyright owners whose identity is not known, and
whose interests are not currently represented in this proceeding.
Adjusting the Terms and Rates for Unaffiliated Copyright Owners
Section 251.63 of 37 CFR prescribes the procedure for adopting
terms and rates for unaffiliated copyright owners under section 118.
Because the identity of such copyright owners is not known, copyright
users are unable to negotiate with them to reach private agreements;
and their interests would not be represented if the matter were
submitted to a CARP. Section 251.63 of the rules, therefore, allows
copyright users to submit their proposals for adjustment of the terms
and rates for the section 118 license to the Librarian of Congress. The
Librarian then submits the proposals to a public notice and comment
proceeding, whereby unaffiliated copyright owners who would be affected
by the proposals are given the opportunity to challenge them. The
unaffiliated copyright owners must submit their challenges by a date
certain and must be willing to participate in the CARP proceeding
adjusting the section 118 terms and rates. If no challenges are
received, or if challenges are received by unaffiliated copyright
owners who will not participate in a CARP proceeding, then the
Librarian will adopt the proposals of the copyright users.
Accordingly, unaffiliated copyright owners must submit their
written challenges to the Librarian of Congress no later than close of
business on November 3, 1997. The content of the written challenge
should describe the unaffiliated copyright owner's interest in this
proceeding, which proposal described below that the owner finds
objectionable, and the reasons for the challenge.
In addition, unaffiliated copyright owners submitting written
challenges must also submit accompanying notices of intent to
participate. Failure to submit a notice of intent to participate will
preclude an unaffiliated copyright owner from participating in this
proceeding and consideration of his or her written challenge. Those
unaffiliated copyright owners who do submit notices of intent to
participate will be contacted by the Librarian as to when their written
direct cases are due. It is the intention of the Librarian to include
such owners in the CARP proceeding that shall commence on December 31,
1997.
Proposals for Adjustment of Terms and Rates
Three parties, representing certain copyright users of works in
connection with noncommercial broadcasting, filed proposals for
adjustment of terms and rates.
1. National Religious Broadcasters Music Licensing Committee
The National Religious Broadcasters Music Licensing Committee
(``NRBMLC'') proposes a rate for the public performance of copyrighted
published nondramatic musical compositions not in the repertory of the
American Society of Composers, Authors and Publishers (ASCAP),
Broadcast Music, Inc. (BMI), or SESAC by radio stations not licensed to
colleges, universities, or other nonprofit educational institutions and
not affiliated with National Public Radio. The royalty rate for such
performances from 1993-1997 is $1 per performance, and is established
in 37 CFR 253.6(c)(4). NRBMLC proposes that the rate remain the same
for the period 1998-2002.
[[Page 51620]]
In addition, NRBMLC proposes a rate for the recording of
nondramatic performances and displays of musical works on and for the
radio and television programs of public broadcasting entities, and for
the making, reproduction, and distribution of copies and phonorecords
of public broadcasting programs containing such nondramatic
performances and displays of musical works solely for the purpose of
transmission by public broadcasting entities.
The rates for such uses, other than in a National Public Radio
produced radio program, for the 1993-1997 period are:
Feature composition................................................$.70
Feature (concert) (per half hour).................................$1.45
Background composition.............................................$.35
These rates are codified at 37 CFR 253.7(b)(4). NRBMLC proposes
that the rates for the 1998-2002 period remain the same.
2. Public Broadcasting Service and National Public Radio
The Public Broadcasting Service (PBS) and National Public Radio
(NPR) submitted a joint proposal to adjust the terms and rates for
copyrighted works of unaffiliated copyright owners used by them for the
1998-2002 period. For adjustment of rates, PBS and NPR propose a one-
time upward adjustment to the relevant rates in the amount of 6.2
percent. This one-time adjustment equals the average of the increases
that would result from annual 2 percent increases over a five-year
period.
With respect to terms, PBS and NPR propose that the current terms
for the use of unaffiliated copyright owners' works by PBS and NPR
remain unchanged, except to clarify that the proposed rates would not
apply to works the rights to which are licensed by ASCAP, BMI, SESAC,
The Harry Fox Agency, or the National Music Publishers Association.
Unaffiliated copyright owners should consult 37 CFR part 253 for a
description of the current terms.
The proposed changes in rates of PBS and NPR are as follows:
(a) Section 253.4 of the rules establishes the rates for
performance of nondramatic musical compositions by PBS, NPR and other
public broadcasting entities engaged in the activities set forth in 17
U.S.C. 118(d). PBS and NPR propose that the changes in these rates for
the 1998-2002 period be as follows:
(i) For the performance of such a work in a feature presentation of
PBS, $211.53, up from the current rate of $199.18;
(ii) For the performance of such a work as background or theme
music in a PBS program, $53.59, up from the current rate of $50.46;
(iii) For the performance of such work in a feature presentation of
a station of PBS, $18.08, up from the current rate of $17.02;
(iv) For the performance of such a work as background or theme
music in a program of a station of PBS, $3.81, up from the current rate
of $3.59;
(v) For the performance of such a work in a feature presentation of
NPR, $21.44, up from the current rate of $20.19;
(vi) For the performance of such a work as background or theme
music in an NPR program, $5.20, up from the current rate of $4.90;
(vii) For the performance of such a work in a feature presentation
of a station of NPR, $1.52, up from the current rate of $1.43; and
(viii) For the performance of such a work as background or theme
music in a program of a station of NPR, $.54, up from the current rate
of $.51.
(b) Section 253.7 of the rules establishes the rates for the
recording of nondramatic performances and displays of musical works on
and for the radio and television programs of public broadcasting
entities, and for the making, reproduction, and distribution of copies
and phonorecords of public broadcasting programs containing such
nondramatic performances and displays of musical works solely for the
purpose of transmission by public broadcasting entities. PBS and NPR
propose that the changes in these rates be as follows:
(i) For the use of a musical work in a PBS-distributed program, ,
the royalty fees for the 1998-2002 period would be calculated by
multiplying the following per composition rates by the number of
different compositions in that PBS-distributed program:
Feature--$106.04, up from the current rate of $99.85
Concert feature (per minute)--$31.84, up from the current rate of
$29.98
Background--$53.59, up from the current rate of $50.46
Theme
Single program or first series program--$53.59, up from the current
rate of $50.46
Other series program--$21.75, up from the current rate of $20.48
(ii) For such uses other than in a PBS-distributed television
program, the royalty fee for the 1998-2002 period would be calculated
by multiplying the following per-composition rates by the number of
different compositions in that program:
Feature--$8.76, up from the current rate of $8.25
Concert feature (per minute)--$2.30, up from the current rate of $2.17
Background--$3.81, up from the current rate of $3.59
Theme
Single program or first series program--$3.81, up from the current rate
of $3.59
Other series program--$1.52, up from the current rate of $1.43
(iii) For uses in a musical work in a NPR program, the royalty fee
for the 1998-2002 period would be calculated by multiplying the
following per-composition rates by the number of different compositions
in any NPR program distributed by NPR:
Feature--$11.48, up from the current rate of $10.81
Concert feature (per half hour)--$16.85, up from the current rate of
$15.87
Background--$5.75, up from the current rate of $5.41
Theme
Single program or first series program--$5.75, up from the current rate
of $5.41
Other series program--$2.29, up from the current rate of $2.16
(iv) For such uses other than in a NPR-produced radio program:
Feature--$.74, up from the current rate of $.70
Feature (concert) (per half hour)--$1.54, up from the current rate of
$1.45
Background--$.37, up from the current rate of $.35
(c) Section 253.8 of the rules establishes rates and terms for the
use of pictorial, graphic, and sculptural works by public broadcasting
entities. The rates and terms include the making of reproductions
described in 17 U.S.C. 118(d)(3). PBS and NPR propose that the change
in rates for the 1998-2002 period be as follows:
(i) For such uses in a PBS-distributed program:
Featured display--$64.78, up from the current rate of $61.00
Background and montage display--$31.59, up from the current rate of
$29.75
Program identification or thematic use.--$127.71, up from the current
rate of $120.25
Display of an art reproduction--$41.95, up from the current rate of
$39.50
(ii) For such uses in other than PBS-distributed programs:
Featured display--$41.95, up from the current rate of $39.50
Background and montage display--$21.51, up from the current rate of
$20.25
[[Page 51621]]
Program identification or thematic use--$85.76, up from the current
rate of $80.75
Display of an art reproduction--$21.51, up from the current rate of
$20.25
Rate Adjustment for Section 253.7(b)(4)
Review of the rate proposals of NRBMLC and PBS and NPR reveals that
there is a conflict between their proposed rates for the recording of
nondramatic performances and displays of musical works on and for the
radio and television programs of public broadcasting entities, other
than in a National Public Radio produced program, and for the making,
reproduction, and distribution of copies and phonorecords of public
broadcasting programs containing such nondramatic performances and
displays of musical works solely for the purpose of transmission by
public broadcasting entities. 37 CFR 253.7(b)(4). NRBMLC proposes that
the rates remain the same as the current rates, while PBS and NPR
propose an increase of 6.2 percent. To resolve this conflict, the
Librarian is announcing that he will adopt the proposal of PBS and NPR,
described above, unless NRBMLC or some other party challenges the
proposal, in which case the matter will be resolved by the CARP in this
proceeding.
Marilyn J. Kretsinger,
Assistant General Counsel.
[FR Doc. 97-26062 Filed 10-1-97; 8:45 am]
BILLING CODE 1410-33-P
