Determination of Rates and Terms for Digital Performance of Sound Recordings and Making of Ephemeral Copies To Facilitate Those Performances (Web V)
| Citation | 85 FR 12745 |
| Record Number | 2020-03304 |
| Published date | 04 March 2020 |
| Section | Rules and Regulations |
| Court | Copyright Royalty Board,Library Of Congress |
Federal Register, Volume 85 Issue 43 (Wednesday, March 4, 2020)
[Federal Register Volume 85, Number 43 (Wednesday, March 4, 2020)]
[Rules and Regulations]
[Pages 12745-12747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03304]
[[Page 12745]]
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LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 380
[Docket No. 19-CRB-0005-WR (2021-2025) (Web V)]
Determination of Rates and Terms for Digital Performance of Sound
Recordings and Making of Ephemeral Copies To Facilitate Those
Performances (Web V)
AGENCY: Copyright Royalty Board (CRB), Library of Congress.
ACTION: Final rule.
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SUMMARY: The Copyright Royalty Judges publish a final rule 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, 2021, and ending on December 31, 2025.
DATES: Effective date: January 1, 2021.
ADDRESSES: 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 19-CRB-0005-WR (2021-2025).
FOR FURTHER INFORMATION CONTACT: Anita Blaine, CRB Program Specialist,
by telephone at (202) 707-7658 or email at [email protected].
SUPPLEMENTARY INFORMATION: On October 30, 2019, the Copyright Royalty
Judges (Judges) published a proposed rule governing 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, 2021, and ending on December 31, 2025. 84 FR
58095. The rates and terms in the proposed rule were the subject of a
settlement between SoundExchange, Inc., (``SoundExchange'') and College
Broadcasters, Inc., (``CBI'') of their interests regarding Web V \1\
rates and terms for certain internet transmissions of sound recordings
by college radio stations and other noncommercial educational
webcasters for the period from January 1, 2021, through December 31,
2025. Joint Motion to Adopt Partial Settlement, Docket No. 19-CRB-0005-
WR (2021-2025) (``Web V''). The Judges received no comments on the
proposed rule.
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\1\ Web V is short for Webcasting V. This proceeding is the
fifth since the compulsory license for webcasting was established.
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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). Because no Web V participant has objected to the
settlement, and the Judges find no basis in the record to conclude that
the settlement does not provide a reasonable basis for setting
statutory terms and rates, the Judges adopt the terms and rates as
proposed.
List of Subjects in 37 CFR Part 380
Copyright, Digital audio transmissions, Performance right, Sound
recordings.
Final Regulations
For the reasons set forth in the preamble, the Copyright Royalty
Judges 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:
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 159,140 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 159,140 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 159,140
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 159,140 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. The Minimum Fee shall constitute the annual per
channel or per station royalty for all Educational Transmissions
totaling not more than 159,140 ATH in a month on any individual channel
or station, and for Ephemeral Recordings to enable such
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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) 2021: $550;
(2) 2022: $600;
(3) 2023: $650;
(4) 2024: $700; and
(5) 2025: $750.
(b) Consequences of unexpectedly exceeding 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 in excess of 159,140 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 45 days
after the end of each month, notify the Collective if it has made total
transmissions in excess of 159,140 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 45th 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 159,140 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
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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
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 159,140 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 159,140 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), 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 159,140 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
159,140 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 paragraph (d)(3) of this section. 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 45th 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: February 10, 2020.
Jesse M. Feder,
Chief Copyright Royalty Judge.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2020-03304 Filed 3-3-20; 8:45 am]
BILLING CODE 1410-72-P
