Determination of Rates and Terms for Public Broadcasting (PB III)
Federal Register, Volume 83 Issue 13 (Friday, January 19, 2018)
Federal Register Volume 83, Number 13 (Friday, January 19, 2018)
Rules and Regulations
Pages 2739-2743
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2018-00735
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LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 381
Docket No. 16-CRB-0002-PBR (2018-2022)
Determination of Rates and Terms for Public Broadcasting (PB III)
AGENCY: Copyright Royalty Board (CRB), Library of Congress.
ACTION: Final rule.
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SUMMARY: The Copyright Royalty Judges publish this final rule regarding rates and terms for use of certain works in connection with noncommercial broadcasting for the period commencing January 1, 2018, and ending on December 31, 2022.
DATES: Effective date: This rule is effective on January 19, 2018.
Applicability dates: This rule applies to the license period January 1, 2018, through December 31, 2022.
ADDRESSES: 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 16-CRB-0002-PBR (2018-2022). For documents not yet uploaded to eCRB (because it is a new system), go to the agency website at https://www.crb.gov/ or contact the CRB Program Specialist.
FOR FURTHER INFORMATION CONTACT: Anita Blaine, CRB Program Specialist, by telephone at (202) 707-7658 or email at email protected.
SUPPLEMENTARY INFORMATION:
Background
Section 118 of the Copyright Act, title 17 of the United States Code, establishes a statutory license for the use of certain copyrighted works in connection with noncommercial television and radio broadcasting. Chapter 8 of the Copyright Act requires the Copyright Royalty Judges (``Judges'') to conduct proceedings every five years to determine the rates and terms for the section 118 license. 17 U.S.C. 801(b)(1), 804(b)(6). In accordance with section 804(b)(6), on January 5, 2016, the Judges commenced the proceeding to set rates and terms for the period 2018 through 2022. 77 FR 71104.
Copyright owners and public broadcasting entities \1\ may negotiate rates and terms under the section 118 license for categories of copyrighted works and uses that would be binding on all owners and entities using the same license \2\ and submit them to the Judges for approval. 17 U.S.C. 801(b)(7)(A). The participants \3\ in the proceeding settled and submitted to the Judges proposed rates for the relevant categories and uses, which the Judges published in the Federal Register for comment on November 3, 2017. 82 FR 51589.
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\1\ A ``public broadcasting entity'' is defined as a ``noncommercial educational broadcast station as defined in section 397 of title 47 and any nonprofit institution or organization engaged in the activities described in paragraph (2) of subsection (c)'' of section 118. 17 U.S.C. 118(f).
\2\ Copyright owners may negotiate rates and terms with specific public broadcasting entities for the use of all of the copyright owners' works covered by the Section 118 license. Section 118(b)(2) provides that such license agreements ``shall be given effect in lieu of any determination by the * * * Copyright Royalty Judges,'' provided that copies of the agreement are submitted to the Judges ``within 30 days of execution.'' 17 U.S.C. 118(b)(2). The Judges received three such agreements (from BMI, ASCAP, and SESAC).
\3\ The Judges received settlement proposals from the following active participants: The American Society of Authors, Composers and Publishers (``ASCAP''); SESAC, Inc.; Broadcast Music, Inc. (``BMI''); Educational Media Foundation (``EMF''); National Public Radio (``NPR'') and the Public Broadcasting Service (``PBS''), jointly; National Religious Broadcasters Noncommercial Music License Committee (``NRBNMLC''); the National Music Publishers' Association (``NMPA''), The Harry Fox Agency (``HFA''), National Association of College and University Business Officers (``NACUBO''). The remaining active participant, Church Music Publishers Association (``CMPA''), approved the four joint proposals involving ASCAP/BMI/SESAC/HFA and NMPA and NRBNMLC/EMF.
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The Judges received two comments, a joint comment from participants ASCAP, BMI, NPR, PBS, and SESAC, and a comment from non-participant Global Music Rights, LLC (``GMR'').\4\
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\4\ The Judges correct one error in the proposed regulatory text published in the proposed rule. They remove the preface after the heading of 381.4 because that language (with proposed revisions) is now in subparagraph (a).
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Page 2740
The joint comment from participants proposed a revision to Sec. 381.4(b) to conform it to Sec. Sec. 381.5 and 381.6 by making explicit that the rates only apply to compositions not in the repertories of ASCAP, BMI, and SESAC.\5\ This change would ensure that, were a voluntary agreement to terminate within the license period, the statutory rate would not apply to compositions in the repertories of ASCAP, BMI, and SESAC. The Judges find the proposed revision is too late and they reject it for several reasons, including:
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\5\ In the Supplementary Information provided in the Proposed Rule relating to this license, the Judges noted that ``NPR and PBS filed proposed changes . . . in Sec. 381.4 . . . which conform to analogous changes in Sec. Sec. 381.5 and 381.6.'' 82 FR at 51591 (Nov. 7, 2017). See Submission of NPR and PBS (Oct. 25, 2017). The conforming changes were those establishing the $1.00 backstop rate. None of the participants sought the limitation language they now urge.
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The proposed language was not sought by any party before the proposed regulations were published for public comment.
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The proposed language is not in the current regulations.
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The proposed regulation includes a rate for licenses that are not subject to a voluntary, negotiated agreement.
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Extension, renewal, or renegotiation of any negotiated agreement to avoid the statutory rate is within the control of ASCAP, BMI, and SESAC.
Notwithstanding the agreement of all parties who allegedly might be affected by this late-proposed change, making this change would alter the proposed regulation without affording interested parties an opportunity for review and comment or objection.
The comment from GMR raised two concerns. GMR objects to a decrease in the Sec. 381.4 rate for non-participants and requests the Judges keep the current rates and add a one-time cost of living adjustment. It also objects to leaving the Sec. Sec. 381.5 and 381.6 rates for non-
participants at the current level and requests the Judges revise it to match the increase in the SESAC rate.
GMR did not file a Petition to Participate in the proceeding. It is allowed to comment, but the Judges need not accept its comments as an ``objection'' to be weighed. The Judges respectfully acknowledge GMR's concerns, but those concerns cannot be a basis for the Judges to find that there is a reasonable objection to adoption of the rules. The Judges' ability to reject an agreement on the reasonableness of the rates and terms proposed therein is constrained by statute. Specifically, section 801(b)(7)(A)(ii) directs the Judges to adopt proposed agreed rates and terms unless a participant to the proceeding objects.\6\ The entity objecting to the proposed rates and terms at issue, GMR, did not file a timely petition to participate in this proceeding, and it does not qualify as a participant to the proceeding.\7\ Therefore, having received no objections to the reasonableness of the proposed rates and terms from a participant in this proceeding, the Copyright Royalty Judges adopt with one minor revision the final regulations as published on November 3, 2017, which set the rates and terms for the section 118 statutory license for the period 2018 through 2022.
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\6\ The Register of Copyrights has opined that the statutory direction does not imply or require that the Judges must adopt proposed regulations that are inherently contrary to law. See 78 FR 47421.
\7\ In the Cable Sports Rule proceeding, docket number 15-CRB-
0010-CA-S (Sports Rule Proceeding), the Judges gave the comments of non-participant Major League Soccer (``MLS'') more consideration by soliciting reply comments because the settlement in that proceeding excluded MLS from any royalty consideration. 82 FR 44368. In this proceeding, the settling parties proposed a rate for non-settling entities that would cover non-participant GMR.
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List of Subjects in 37 CFR Part 381
Copyright, Music, Radio, Television, Rates.
Final Regulations
For the reasons set forth in the preamble, the Copyright Royalty Judges amend part 381 to chapter III of title 37 of the Code of Federal Regulations as set forth below:
PART 381--USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH NONCOMMERCIAL EDUCATIONAL BROADCASTING
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The authority citation for part 381 continues to read as follows:
Authority: 17 U.S.C. 118, 801(b)(1) and 803.
Sec. 381.1 Amended
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In Sec. 381.1, remove ``2013'' and in its place add ``2018'' and remove ``2017'' and in its place add ``2022''.
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Amend Sec. 381.4 as follows:
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Remove the introductory text;
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Add introductory text to paragraph (a);
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In paragraph (c), remove ``2013'' and in its place add ``2018'' and remove ``2017'' and in its place add ``2022''; and
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Remove paragraph (d).
The revision reads as follows:
Sec. 381.4 Performance of musical compositions by PBS, NPR and other public broadcasting entities engaged in the activities set forth in 17 U.S.C. 118(c).
(a) Determination of royalty rate. The following rates and terms shall apply to the performance by PBS, NPR and other public broadcasting entities engaged in activities set forth in 17 U.S.C. 118(c) of copyrighted published nondramatic musical compositions, except for public broadcasting entities covered by Sec. Sec. 381.5 and 381.6, and except for compositions which are the subject of voluntary license agreements: The royalty shall be $1.
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Amend Sec. 381.5 by revising paragraph (c) to read as follows:
Sec. 381.5 Performance of musical compositions by public broadcasting entities licensed to colleges and universities.
* * * * *
(c) Royalty rate. A public broadcasting entity within the scope of this section may perform published nondramatic musical compositions subject to the following schedule of royalty rates:
(1) For all such compositions in the repertory of ASCAP, the royalty rates shall be as follows:
(i) Music fees.
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Number of full-time students 2018 2019 2020 2021 2022
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Level 1................................ = 20% Feature Music programming:
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Population count 2018 2019 2020 2021 2022
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Level 1................................ 0-249,999...................... $152 $155 $158 $161 $164
Level 2................................ 250,000-499,999................ 253 258 263 268 274
Level 3................................ 500,000-999,999................ 380 388 396 403 411
Level 4................................ 1,000,000-1,499,999............ 507 517 527 538 548
Level 5................................ 1,500,000-1,999,999............ 634 647 660 673 686
Level 6................................ 2,000,000-2,499,999............ 760 775 790 806 822
Level 7................................ 2,500,000-2,999,999............ 887 905 923 941 960
Level 8................................ 3,000,000 and above............ 1,268 1,293 1,318 1,344 1,371
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(ii) Talk fees for stations with
