[Federal Register Volume 86, Number 123 (Wednesday, June 30, 2021)]
[Proposed Rules]
[Pages 34676-34677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13923]


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LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 381

[Docket No. 21-CRB-0002-PBR (2023-2027)]


Determination of Rates and Terms for Public Broadcasting (PB IV)

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Proposed rule.

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SUMMARY: The Copyright Royalty Judges publish for comment proposed 
regulations that set rates and terms for the use of certain copyrighted 
works by public broadcasting entities for the period beginning January 
1, 2023, and ending December 31, 2027.

DATES: Comments and objections, if any, are due no later than July 30, 
2021.

ADDRESSES: You may send comments, identified by docket number 21-CRB-
0002-PBR (2023-2027), online through eCRB at https://app.crb.gov.
    Instructions: To send your comment through eCRB, if you don't have 
a user account, you will first need to register for an account and wait 
for your registration to be approved. Approval of user accounts is only 
available during business hours. Once you have an approved account, you 
can only sign in and file your comment after setting up multi-factor 
authentication, which can be done at any time of day. All comments must 
include the Copyright Royalty Board name and the docket number for this 
proposed rule. All properly filed comments will appear without change 
in eCRB at https://app.crb.gov, including any personal information 
provided.
    Docket: For access to the docket to read background documents or 
comments received, go to eCRB at https://app.crb.gov and perform a case 
search for docket 21-CRB-0002-PBR (2023-2027).

FOR FURTHER INFORMATION CONTACT: Anita Blaine, CRB Program Specialist, 
at 202-707-7658 or <a href="/cdn-cgi/l/email-protection#16756474567a797538717960"><span class="__cf_email__" data-cfemail="1d7e6f7f5d71727e337a726b">[email protected]</span></a>.

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). Accordingly, the Judges commenced a proceeding in 
January 2021, by publishing notice of the commencement of the 
proceeding and a request that interested parties submit petitions to 
participate. 86 FR 325 (Jan. 5, 2021).
    The Judges received petitions to participate in the current 
proceeding from The American Society of Authors, Composers and 
Publishers (ASCAP); Broadcast Music, Inc. (BMI); Church Music 
Publishers' Association, Inc. (CMPA); Educational Media Foundation 
(EMF); Global Music Rights, LLC; National Religious Broadcasters 
Noncommercial Music License Committee (NRBNMLC); David Powell; Public 
Broadcasting Entities (Corporation for Public Broadcasting (CPB), 
National Public Radio (NPR), and Public Broadcasting Service (PBS)); 
SESAC Performing Rights, LLC (SESAC); and The Harry Fox Agency LLC 
(HFA).
    The Judges gave notice to all participants of the three-month 
negotiation period required by 17 U.S.C. 803(b)(3) and directed that, 
if the participants were unable to negotiate a settlement, they should 
submit Written Direct Statements no later than September 10, 2021. 
Notice of Participants, Commencement of Voluntary Negotiation Period, 
and Case Scheduling Order (Feb. 9, 2021).
    There are two ways copyright owners and public broadcasting 
entities \1\ may negotiate rates and terms under the section 118 
statutory license. First, 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 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).
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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).
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    Second, copyright owners and public broadcasting entities may 
negotiate rates and terms for categories of copyrighted works and uses 
that would be binding on all owners and entities using the same license 
and submit them to the Judges for approval. Section 801(b)(7)(A) of the 
Copyright Act authorizes the Judges to adopt rates and terms negotiated 
by ``some or all of the participants in a proceeding at any time during 
the proceeding'' provided they are submitted to the Judges for 
approval.
    This section provides that the Judges shall provide notice and an 
opportunity to comment on the agreement to (1) those that would be 
bound by the terms, rates, or other determination set by the agreement 
and (2) participants in the proceeding that would be bound by the 
terms, rates, or other determination set by the agreement. See section 
801(b)(7)(A). The Judges may decline to adopt the agreement as a basis 
for statutory terms and rates for participants not party to the 
agreement if any participant objects and the Judges conclude that the 
agreement does not provide a reasonable basis for setting statutory 
terms or rates. Id.
    On June 21, 2021, the Judges received a joint proposal from 
participants HFA and NRBNMLC regarding fees for recording rights under 
37 CFR 381.7(b)(4) for the period 2023-2027. Joint Proposal . . . 
Regarding Fees for Recording Rights Under 37 CFR 381.7(B)(4) (June 21, 
2021) (Proposal). The fees in Sec.  381.7(b)(4) apply to the 
``recording of nondramatic performances and displays of musical works 
for the types of uses described in 17 U.S.C. 118(c)(2)-(3) by 
noncommercial radio stations other than uses in a radio program 
produced by [NPR] and other than uses subject to voluntary license 
agreements.'' Proposal at 2. HFA and NRBNMLC filed a proposal instead 
of a notice of settlement because NRBNMLC does not represent all radio 
stations subject to the fees. Id. Participant EMF joins in the 
proposal. Id. at 3 n.2.
    The Proposal states that the fees in Sec.  381.7(b)(4) should be 
modified. See id. at 2-3. It also proposes carrying forward

[[Page 34677]]

unchanged (except to replace ``January 1, 2018'' with ``January 1, 
2023'' and ``December 31, 2022'' with ``December 31, 2027'') current 
provisions set forth in Sec. Sec.  381.1, 381.2, 381.9, and 381.11. Id.
    The Judges solicit comments on whether they should adopt the 
proposed regulations as statutory rates and terms relating to the 
reproduction, distribution, performance or display of certain works by 
public broadcasting entities (as defined in 17 U.S.C. 118(f)) in the 
course of the activities described in 17 U.S.C. 118(c).
    Comments and objections regarding the proposed changes must be 
submitted no later than July 30, 2021.

List of Subjects in 37 CFR Part 381

    Copyright, Music, Radio, Television, Rates.

    For the reasons set forth in the preamble, the Copyright Royalty 
Judges propose to amend 37 CFR part 381 as follows:

PART 381--USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH 
NONCOMMERCIAL EDUCATIONAL BROADCASTING

0
1. The authority citation for part 381 continues to read as follows:

    Authority: 17 U.S.C. 118, 801(b)(1), 803.

0
2. Revise Sec.  381.1 to read as follows:


Sec.  381.1  General.

    This part establishes terms and rates of royalty payments for 
certain activities using published nondramatic musical works and 
published pictorial, graphic and sculptural works during a period 
beginning on January 1, 2023, and ending on December 31, 2027. Upon 
compliance with 17 U.S.C. 118, and the terms and rates of this part, a 
public broadcasting entity may engage in the activities with respect to 
such works set forth in 17 U.S.C. 118(c).
0
3. Revise Sec.  381.7(b)(4) to read as follows:


Sec.  381.7  Recording rights, rates and terms.

* * * * *
    (b) * * *
    (4) For such uses other than in an NPR-produced radio program:

 
                                                               2023-2027
 
(i) Feature.................................................       $ .83
(ii) Feature (concert) (per half hour)......................        1.72
(iii) Background............................................         .42
 

* * * * *

    Dated June 24, 2021.
Jesse M. Feder,
Chief Copyright Royalty Judge.
[FR Doc. 2021-13923 Filed 6-29-21; 8:45 am]
BILLING CODE 1410-72-P


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