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[Federal Register: February 8, 2010 (Volume 75, Number 25)]
[Rules and Regulations]               
[Page 6097-6098]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe10-9]                         

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LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 380

[Docket No. 2005-1 CRB DTRA]

 
Digital Performance Right in Sound Recordings and Ephemeral 
Recordings

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Final rule.

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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 (202) 707-7658 or by 
e-mail at crb@loc.gov.

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 Sec.  
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

0
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:

[[Page 6098]]

PART 380--RATES AND TERMS FOR CERTAIN ELIGIBLE NONSUBSCRIPTION 
TRANSMISSIONS, NEW SUBSCRIPTION SERVICES AND THE MAKING OF 
EPHEMERAL REPRODUCTIONS

0
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).

0
2. Section 380.3 is amended by revising paragraph (b) to read as 
follows:


Sec.  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.
[FR Doc. 2010-2644 Filed 2-5-10; 8:45 am]
BILLING CODE 1410-72-P
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