E7-10366. Digital Performance Right in Sound Recordings and Ephemeral Recordings

AGENCY:

Copyright Royalty Board, Library of Congress.

ACTION:

Final rule: technical amendment.

SUMMARY:

The Copyright Royalty Judges, on behalf of the Copyright Royalty Board of the Library of Congress, are making a technical amendment in the regulation regarding the royalty fees for the public performance of sound recordings and for ephemeral recordings under two statutory licenses to clarify the appropriate Aggregate Tuning Hour usage rate calculation option for the transition period of 2006 and 2007 for non-music programming.

EFFECTIVE DATE:

May 30, 2007.

FOR FURTHER INFORMATION CONTACT:

Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney Advisor. Telephone: [phone]. Telefax: [phone].

SUPPLEMENTARY INFORMATION:

On May 1, 2007, the Copyright Royalty Judges (“Judges”) announced their final determination of the rates and terms for 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. 72 FR 24084 (May 1, 2007). The Final Determination included a transition phase for 2006 and 2007 to use Aggregate Tuning Hours (“ATH”) to estimate usage as permitted under the prior fee regime in order to facilitate a smooth transition to the fee structure adopted in the Final Determination. 72 FR 24086. Such ATH usage rate calculation options are set forth in § 380.3(a).

On May 8, 2007, Radio Broadcasters ^[1] requested the Judges to clarify whether the appropriate ATH usage rate calculation option available for the transition period of 2006 and 2007 was inadvertently misstated because the incorrect starting point was identified for the “prior fees” row for non music-programming (i.e., $0.0008 instead of $0.000762). None of the other parties in the proceeding filed any pleading about the request. The Judges considered the Radio Broadcasters' request under their authority in section 803(c)(4) of the Copyright Act, title 17 of the United States Code, which authorizes them to correct “any technical or clerical errors in the determination * * * that would frustrate the proper implementation of the determination” and requires them to distribute to the participants of the proceeding such correction and to publish the correction in the Federal Register.

After full consideration of the Radio Broadcasters' request, the Judges concluded that such clerical error indeed had been made. Consequently, in accordance with 17 U.S.C. 804(c)(4), the Judges issued an order to the participants in the proceeding acknowledging the clerical error and setting forth the corrected ATH usage rate calculation option available for non-music programming for the 2006-2007 transition period. See Order Regarding Broadcasters' Request for Clarification of the Final Determination of Rates and Terms, Docket No. 2005-1 CRB DTRA (May 21, 2007).

Moreover, as further required by 17 U.S.C. 803(c)(4), the Judges today are amending §§ 380.3(a)(1)(ii) and (a)(2)(iii) to reflect, as set forth in the May 21 Order, the correct ATH usage rate calculation option available for non-music programming for the transition period 2006-2007, which is as follows:

Non-Music Programming

Prior Fees	$0.000762 per ATH.
2006	$0.0008 per ATH.
2007	$0.0011 per ATH.

This correction also applies to footnotes 33 and 55 in Sections IV.C.1.d.i. and IV.D.1., respectively, of the Final Determination.

Because this amendment is being made simply for the purpose of correcting a clerical error, the Judges find that there is good cause to make it effective immediately.

List of Subjects in 37 CFR Part 380

• Copyright
• Sound recordings

Final Regulation

For the reasons set forth in the preamble, 37 CFR part 380 is amended 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 continues to read as follows:

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

§ 380.3

[Amended]

2. Section 380.3 is amended as follows:

a. In paragraph (a)(1)(ii), by removing “$0.0008” and adding “$0.000762” in its place, by removing “$0.0011” and adding “$0.0008” in its place, and by removing “$0.0014” and adding “$0.0011” in its place; and

b. In paragraph (a)(2)(iii), by removing “$0.0008” and adding “$0.000762” in its place, by removing “$0.0011” and adding “$0.0008” in its place, and by removing “$0.0014” and adding “$0.0011” in its place.

Dated: May 23, 2007.

James Scott Sledge,

Chief Copyright Royalty Judge.

Footnotes

1.  Radio Broadcasters include Bonneville International Corp., Clear Channel Communications, Inc., Susquehanna Radio Corp., and The National Religious Broadcasters Music License Committee (“NRBMLC”).