2010-2644. Digital Performance Right in Sound Recordings and Ephemeral Recordings

AGENCY:

Copyright Royalty Board, Library of Congress.

ACTION:

Final rule.

SUMMARY:

The Copyright Royalty Judges are publishing final regulations governing the statutory minimum fees to be paid by Commercial Webcasters under two statutory licenses, permitting certain digital performances of sound recordings and the making of ephemeral recordings, for the period beginning January 1, 2006, and ending on December 31, 2010.

DATES:

Effective Date: March 10, 2010.

Applicability Dates: The regulations apply to the license period January 1, 2006, through December 31, 2010.

FOR FURTHER INFORMATION CONTACT:

Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney Advisor, by telephone at [phone] or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

On May 1, 2007, the Copyright Royalty Judges (“Judges”) published in the Federal Register their determination of royalty rates and terms under the statutory licenses under Section 112(e) and 114 of the Copyright Act, title 17 of the United States Code, for the period 2006 through 2010 for a digital public performance of sound recordings by means of eligible nonsubscription transmission or a transmission by a new subscription service. 72 FR 24084. In Intercollegiate Broadcast System, Inc. v. Copyright Royalty Board, 574 F.3d 748 (D.C. Cir. 2009), the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) affirmed the Judges' determination in the main but remanded to the Judges the matter of setting the minimum fee to be paid by both Commercial Webcasters and Noncommercial Webcasters under Sections 112(e) and 114 of the Copyright Act. Id. at 762, 767. By order dated October 23, 2009, the Judges established a period commencing November 2, 2009, and concluding on December 2, 2009, for the parties to negotiate and submit a settlement of the minimum fee issue that was the subject of the remand.

On December 2, 2009, SoundExchange, Inc. and the Digital Media Association (“DiMA”) submitted a settlement regarding the statutory minimum fee to be paid by Commercial Webcasters. Subsequently, the Judges published for comment the proposed change in the rule necessary to implement that settlement pursuant to the order of remand from the D.C. Circuit. 74 FR 68214 (December 23, 2009). Comments were due to be filed by no later than January 22, 2010. The Judges received one comment from Intercollegiate Broadcasting System, Inc. (“IBS”).

IBS requests that the Judges publish a note to proposed § 380.3(b)(2) stating that the Judges on remand will determine the minimum fee for Noncommercial Webcasters. Comments of IBS at 2-3. The Judges decline to do so. As was made clear in the December 23, 2009, Notice, the proposed settlement applies only to Commercial Webcasters. Therefore, the Judges are adopting as final the proposed change as published on December 23, 2009. See 74 FR 68214.

List of Subjects in 37 CFR Part 380

• Copyright
• Sound recordings

Final Regulations

For the reasons set forth in the preamble, the Copyright Royalty Judges are amending part 380 of title 37 of the Code of Federal Regulations as follows:

PART 380—RATES AND TERMS FOR CERTAIN ELIGIBLE NONSUBSCRIPTION TRANSMISSIONS, NEW SUBSCRIPTION SERVICES AND THE MAKING OF EPHEMERAL REPRODUCTIONS

1. The authority citation for part 380 of title 37 of the Code of Federal Regulations as follows:

Authority: 17 U.S.C. 112(e), 114(f), 804(b)(3).

2. Section 380.3 is amended by revising paragraph (b) to read as follows:

§ 380.3

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

* * * * *

(b) Minimum fee—(1) Commercial Webcasters. Each Commercial Webcaster will pay an annual, nonrefundable minimum fee of $500 for each calendar year or part of a calendar year of the period 2006-2010 during which it is a Licensee pursuant to 17 U.S.C. 112(e) or 114. This annual minimum fee is payable for each individual channel and each individual station maintained by Commercial Webcasters, and is also payable for each individual Side Channel maintained by Broadcasters who are Commercial Webcasters, provided that a Commercial Webcaster shall not be required to pay more than $50,000 per calendar year in minimum fees in the aggregate (for 100 or more channels or stations). The minimum fee payable under 17 U.S.C. 112 is deemed to be included within the minimum fee payable under 17 U.S.C. 114. Upon payment of the minimum fee, the Commercial Webcaster will receive a credit in the amount of the minimum fee against any royalty fees payable in the same calendar year.

(2) Noncommercial Webcasters. Each Noncommercial Webcaster will pay an annual, nonrefundable minimum fee of $500 for each calendar year or part of a calendar year of the license period during which they are Licensees pursuant to licenses under 17 U.S.C. 114. This annual minimum fee is payable for each individual channel and each individual station maintained by Noncommercial Webcasters and is also payable for each individual Side Channel maintained by Broadcasters who are Licensees. The minimum fee payable under 17 U.S.C. 112 is deemed to be included within the minimum fee payable under 17 U.S.C. 114. Upon payment of the minimum fee, the Licensee will receive a credit in the amount of the minimum fee against any additional royalty fees payable in the same calendar year.

Dated: February 2, 2010.

James Scott Sledge,

Chief U.S. Copyright Royalty Judge.