```

[Federal Register: February 3, 2010 (Volume 75, Number 22)]
[Rules and Regulations]               
[Page 5513-5514]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03fe10-8]                         

=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 382

[Docket No. 2006-1 CRB DSTRA]

 
Determination of Rates and Terms for Preexisting Subscription 
Services and Satellite Digital Audio Radio Services

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Copyright Royalty Judges are publishing final regulations 
governing the rates for the preexisting satellite digital audio radio 
services' use of the ephemeral recordings statutory license under the 
Copyright Act for the period 2007 through 2012.

DATES: Effective Date: March 5, 2010.
    Applicability Dates: The regulations apply to the license period 
January 1, 2007, through December 31, 2012.

FOR FURTHER INFORMATION CONTACT: Richard Strasser, Senior Attorney, or 
Gina Giuffreda, Attorney Advisor, by telephone at (202) 707-7658 or by 
e-mail at crb@loc.gov.

SUPPLEMENTARY INFORMATION: On January 24, 2008, the Copyright Royalty 
Judges (``Judges'') published in the Federal Register their 
determination of royalty rates and terms under the statutory license 
under Sections 112(e) and 114 of the Copyright Act, title 17 of the 
United States Code, for the period 2007 through 2012 for preexisting 
satellite digital audio radio services (``SDARS''). 73 FR 4080. In 
SoundExchange, Inc. v. Librarian of Congress, 571 F.3d 1220, 1226 (D.C. 
Cir. 2009), the U.S. Court of Appeals for the District of Columbia 
Circuit affirmed the Judges' determination in all but one respect, 
remanding to the Judges the single matter of specifying a royalty for 
the use of the ephemeral recordings statutory license under Section 
112(e) of the Copyright Act. By order dated October 22, 2009, the 
Judges established a period from November 2, 2009, through December 2, 
2009, for SoundExchange, Inc. and Sirius XM Radio Inc. (collectively, 
the ``Parties'') to negotiate and submit a settlement of the ephemeral 
royalty rate issue that was the subject of the remand.
    On November 24, 2009, the Parties submitted their settlement of the 
remanded issue. 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 U.S. Court of Appeals for the 
District of Columbia Circuit. 74 FR 66601 (December 16, 2009). Comments 
were due to be filed by no later than January 15, 2010. Having received 
no comments or objections to the proposed change, the Judges are now 
adopting as final the proposed change as published on December 16, 
2009. See 74 FR 66601.
    As noted in the December 16 publication, pursuant to the Parties' 
settlement, the change to the regulations at 37 CFR 382.12 adopted 
today do not disturb the combined Section 112(e)/114 royalty previously 
set by the Judges but do specify that five percent of the combined 
royalty will be considered the Section 112(e) royalty, while the 
balance of the royalty is attributable to the Section 114 license.

List of Subjects in 37 CFR Part 382

    Copyright, Digital audio transmissions, Performance right, Sound 
recordings.

Final Regulations

0
For the reasons set forth in the preamble, the Copyright Royalty Judges 
amend part 382 of title 37 of the Code of Federal Regulations as 
follows:

PART 382--RATES AND TERMS FOR DIGITAL TRANSMISSIONS OF SOUND 
RECORDINGS AND THE REPRODUCTION OF EPHEMERAL RECORDINGS BY 
PREEXISTING SUBSCRIPTION SERVICES AND PREEXISTING SATELLITE DIGITAL 
AUDIO RADIO SERVICES

0
1. The authority citation for part 382 continues to read as follows:

    Authority:  17 U.S.C. 112(e), 114, and 801(b)(1).


0
2. Section 382.12 is revised to read as follows:


Sec.  382.12  Royalty fees for the public performance of sound 
recordings and the making of ephemeral recordings.

    (a) In general. The monthly royalty fee to be paid by a Licensee 
for the public performance of sound recordings pursuant to 17 U.S.C. 
114(d)(2) and the making of any number of ephemeral phonorecords to 
facilitate such performances pursuant to 17 U.S.C. 112(e) shall be the 
percentage of monthly Gross Revenues resulting from Residential 
services in the United States as follows: for 2007 and 2008, 6.0%; for 
2009, 6.5%; for 2010, 7.0%; for 2011, 7.5%; and for 2012, 8.0%.
    (b) Ephemeral recordings. The royalty payable under 17 U.S.C. 
112(e) for the making of phonorecords used by the Licensee solely to 
facilitate transmissions during the Term for which it pays royalties as 
and when

[[Page 5514]]

provided in this subpart shall be included within, and constitute 5% 
of, such royalty payments.

    Dated: January 28, 2010.
James Scott Sledge,
Chief U.S. Copyright Royalty Judge.
[FR Doc. 2010-2219 Filed 2-2-10; 8:45 am]
BILLING CODE 1410-72-P
```