80_FR_37051 80 FR 36927 - Determination of Terms and Royalty Rates for Ephemeral Reproductions and Public Performance of Sound Recordings by a New Subscription Service

80 FR 36927 - Determination of Terms and Royalty Rates for Ephemeral Reproductions and Public Performance of Sound Recordings by a New Subscription Service

LIBRARY OF CONGRESS
Copyright Royalty Board

Federal Register Volume 80, Issue 124 (June 29, 2015)

Page Range36927-36928
FR Document2015-12668

The Copyright Royalty Judges publish final regulations that set the rates and terms for the use of sound recordings via digital transmissions made by new subscription services and for the making of ephemeral recordings to facilitate those transmissions during the period commencing January 1, 2016, and ending on December 31, 2020.

Federal Register, Volume 80 Issue 124 (Monday, June 29, 2015) 
[Federal Register Volume 80, Number 124 (Monday, June 29, 2015)]
[Rules and Regulations]
[Pages 36927-36928]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-12668]


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LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 383

[Docket No. 14-CRB-0002-NSR (2016-2020)]


Determination of Terms and Royalty Rates for Ephemeral 
Reproductions and Public Performance of Sound Recordings by a New 
Subscription Service

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Final rule.

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SUMMARY: The Copyright Royalty Judges publish final regulations that 
set the rates and terms for the use of sound recordings via digital 
transmissions made by new subscription services and for the making of 
ephemeral recordings to facilitate those transmissions during the 
period commencing January 1, 2016, and ending on December 31, 2020.

DATES: Effective: January 1, 2016.

FOR FURTHER INFORMATION CONTACT: Kimberly Whittle, Attorney Advisor, by 
telephone at (202) 707-7658, or by email at [email protected].

SUPPLEMENTARY INFORMATION: On December 12, 2014, the Copyright Royalty 
Judges (Judges) received a joint motion from SoundExchange, Inc. 
(``SoundExchange'') and Sirius XM Radio, Inc. (``Sirius XM'') to adopt 
a settlement of royalty rates and terms under Sections 112(e) and 114 
of the Copyright Act (``the Act'') for 2016-2020 for new subscription 
services of the type at issue in the captioned proceeding (i.e., music 
services provided to residential subscribers as part of a cable or 
satellite television bundle). See Joint Motion to Adopt Settlement at 1 
and 37 CFR 383.2(h). Sirius XM creates music and nonmusic programming 
and transmits it through its satellite digital audio radio service and 
other outlets. According to Sirius XM, it relies on the royalty rates 
and terms in 37 CFR part 383 for music programming it provides through 
the DiSH satellite television service. Joint Motion at 2. SoundExchange 
is a nonprofit organization that is jointly controlled by 
representatives of sound recording copyright owners and performers. Id. 
The Judges published the proposed settlement and requested comments 
from the public. See 80 Federal Register 2065 (January 15, 2015).

Background

    Section 801(b)(1) of the Act, among other things, authorizes the 
Judges to make determinations and adjustments of reasonable terms and 
rates of royalty payments as provided in Section 112(e) and 114 of the 
Act. Section 114(f)(2)(A) of the Act provides, among other things, 
that, proceedings under chapter 8 of the Act shall determine reasonable 
rates and terms of royalty payments for public performances of sound 
recordings by means of new subscription services. Section 112(e)(3) of 
the Act provides that proceedings under chapter 8 of the Act shall 
determine reasonable rates and terms of royalty payments for activities 
specified in Section 112(e)(1) of the Act (i.e., the making of no more 
than one phonorecord of a sound recording by a transmitting 
organization entitled to transmit to the public a performance of a 
sound recording under a statutory license in accordance with Section 
114(f) of the Act). The Judges have commenced two prior proceedings for 
five-year rate periods pursuant to these two provisions, both of which 
ended when the participants reached an agreement of the applicable 
rates and terms. See 72 FR 72253 (December 20, 2007) and 75 FR 14074 
(March 24, 2010). The current rate period expires December 31, 2015.
    Pursuant to section 803(b)(1)(A)(i)(III) of the Copyright Act, the 
Judges published in the Federal Register a notice commencing a rate 
determination proceeding for the 2016-2020 rate period and requesting 
interested parties to submit Petitions to Participate. See 79 FR 410 
(January 3, 2014). The Judges received Petitions to Participate from 
Music Reports, Inc. (``Music Reports''), National Music Publishers 
Association (``NMPA''), Sirius XM, Spotify USA, Inc., and 
SoundExchange. The Judges subsequently dismissed the petitions to 
participate of NMPA and Music Reports. See Order Dismissing Petition to 
Participate (Music Reports) (May 30, 2014) and Order Granting 
SoundExchange Motion to Deny the Petition to Participate of National 
Music Publishers' Association (April 30, 2014). On September 26, 2014, 
Spotify withdrew from the proceeding. See Notice of Withdrawal of 
Petition to Participate. As a result, Sirius XM and SoundExchange are 
the only remaining participants in this proceeding. Joint Motion at 2.
    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 the 
settling parties submit the negotiated rates and terms to the Judges 
for approval. That provision directs the Judges to provide those who 
would be bound by the negotiated rates and terms an opportunity to 
comment on the agreement. The Judges will adopt the negotiated rates 
and terms unless a participant in a proceeding objects and the Judges 
conclude that the agreement does not provide a reasonable basis for 
setting statutory rates or terms, the Judges adopt the negotiated rates 
and terms. 17 U.S.C. 801(b)(7)(A).
    Rates and terms the Judges adopt pursuant to this provision are 
binding on all owners of copyright in sound recordings and on all new 
subscription services performing the copyrighted sound recordings on 
digital audio channels transmitted by a cable or satellite television 
distribution service to residential customers, bundled with television 
channels as part of a ``basic'' service subscription package, and not 
available separately for a separate fee. See 37 CFR 383.2(h).
    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 [to 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). The Judges received no comments or objections in 
response to their request for comments published in the Federal 
Register.
    The Judges, therefore, by this notice, adopt as final regulations 
for the period commencing January 1, 2016, and ending on December 31, 
2020, the rates and terms agreed to by Sirius XM and SoundExchange for 
digital transmission of sound recordings by new subscription services 
and the making of ephemeral reproductions necessary to facilitate those 
transmissions.

List of Subjects in 37 CFR Part 383

    Copyright, Digital audio transmissions, Performance right, Sound 
recordings.

Final Regulation

    For the reasons set forth in the preamble, the Copyright Royalty 
Board amends 37 CFR part 383 as follows:

[[Page 36928]]

PART 383--RATES AND TERMS FOR SUBSCRIPTION TRANSMISSIONS AND THE 
REPRODUCTION OF EPHEMERAL RECORDINGS BY CERTAIN NEW SUBSCRIPTION 
SERVICES

0
1. The authority citation for part 383 continues to read as follows:

    Authority:  17 U.S.C. 112(e), 114, and 801(b)(1).


0
2. The heading for part 383 is revised to read as set forth above.


Sec.  383.1  [Amended]

0
3. Amend Sec.  383.1 as follows:
0
a. In paragraph (a), by removing ``from the inception of the Licensees' 
Services'' and adding in its place ``January 1, 2016,'' and by removing 
``2015'' and adding in its place ``2020''; and
0
b. In paragraph (c), by adding ``voluntary'' before ``license 
agreements''.


Sec.  383.2  [Amended]

0
4. Amend Sec.  383.2 as follows:
0
a. By removing paragraph (a);
0
b. By redesignating paragraphs (b) through (f) as paragraphs (a) 
through (e);
0
c. In newly redesignated paragraph (b), by adding ``made under this 
part pursuant to the statutory licenses'' before ``under 17 U.S.C.'', 
by removing ``or'' and adding in its place ``and'', and by removing 
``(g)'';
0
d. In newly redesignated paragraph (c), by removing ``from the 
inception of the Licensees' Services'' and adding in its place 
``January 1, 2016,'' and by removing ``2015'' and adding in its place 
``2020'';
0
e. In newly redesignated paragraph (d), by removing ``(h)'' and adding 
in its place ``(f)'';
0
f. By removing paragraph (g);
0
g. By redesignating paragraphs (h) through (j) as paragraphs (f) 
through (h); and
0
h. In newly redesignated paragraph (f)(3), by removing ``(h)'' and 
adding in its place ``(f)''.

0
5. Amend Sec.  383.3 as follows:
0
a. In paragraph (a) introductory text, by removing ``License'' and 
adding in its place ``statutory licenses'';
0
b. By revising paragraphs (a)(1) and (2); and
0
c. In paragraph (b), by removing ``, but payable pursuant to the 
applicable regulations for all years 2007 and earlier''.
    The revisions read as follows:


Sec.  383.3  Royalty fees for public performances of sound recordings 
and the making of ephemeral recordings.

    (a) * * *
    (1) For Stand-Alone Contracts, the following monthly payment per 
Subscriber to the Service of such Licensee:
    (i) 2016: $0.0179;
    (ii) 2017: $0.0185;
    (iii) 2018: $0.0190;
    (iv) 2019: $0.0196;
    (v) 2020: $0.0202;
    (2) For Bundled Contracts, the following monthly payment per 
Subscriber to the Service of such Licensee:
    (i) 2016: $0.0299;
    (ii) 2017: $0.0308;
    (iii) 2018: $0.0317;
    (iv) 2019: $0.0326;
    (v) 2020: $0.0336;
* * * * *


Sec.  383.4  [Amended]

0
6. Amend Sec.  383.4 in paragraph (a), by removing ``2007-2013'' and 
adding in its place ``2013-2017'' and by removing ``2015'' and adding 
in its place ``2020''.

    Dated: March 24, 2015.
Suzanne M. Barnett,
Chief Copyright Royalty Judge.

    Approved by:
James H. Billington,
Librarian of Congress.
[FR Doc. 2015-12668 Filed 6-26-15; 8:45 am]
 BILLING CODE 1410-72-P

Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules and Regulations 36927 or an on-scene representative may be representatives of sound recording Section 801(b)(7)(A) of the Copyright contacted via Channel 16, VHF–FM. copyright owners and performers. Id. Act authorizes the Judges to adopt rates Dated: June 11, 2015. The Judges published the proposed and terms negotiated by ‘‘some or all of A.B. Cocanour, settlement and requested comments the participants in a proceeding at any from the public. See 80 Federal Register time during the proceeding’’ provided Captain, U.S. Coast Guard, Captain of the Port Lake Michigan. 2065 (January 15, 2015). the settling parties submit the [FR Doc. 2015–15935 Filed 6–26–15; 8:45 am] Background negotiated rates and terms to the Judges for approval. That provision directs the BILLING CODE 9110–04–P Section 801(b)(1) of the Act, among Judges to provide those who would be other things, authorizes the Judges to bound by the negotiated rates and terms make determinations and adjustments of an opportunity to comment on the LIBRARY OF CONGRESS reasonable terms and rates of royalty agreement. The Judges will adopt the payments as provided in Section 112(e) Copyright Royalty Board negotiated rates and terms unless a and 114 of the Act. Section 114(f)(2)(A) participant in a proceeding objects and of the Act provides, among other things, 37 CFR Part 383 the Judges conclude that the agreement that, proceedings under chapter 8 of the Act shall determine reasonable rates and does not provide a reasonable basis for [Docket No. 14–CRB–0002–NSR (2016– setting statutory rates or terms, the 2020)] terms of royalty payments for public performances of sound recordings by Judges adopt the negotiated rates and Determination of Terms and Royalty means of new subscription services. terms. 17 U.S.C. 801(b)(7)(A). Rates for Ephemeral Reproductions Section 112(e)(3) of the Act provides Rates and terms the Judges adopt and Public Performance of Sound that proceedings under chapter 8 of the pursuant to this provision are binding Recordings by a New Subscription Act shall determine reasonable rates and on all owners of copyright in sound Service terms of royalty payments for activities recordings and on all new subscription specified in Section 112(e)(1) of the Act services performing the copyrighted AGENCY: Copyright Royalty Board, (i.e., the making of no more than one sound recordings on digital audio Library of Congress. phonorecord of a sound recording by a channels transmitted by a cable or ACTION: Final rule. transmitting organization entitled to satellite television distribution service SUMMARY: The Copyright Royalty Judges transmit to the public a performance of to residential customers, bundled with publish final regulations that set the a sound recording under a statutory television channels as part of a ‘‘basic’’ rates and terms for the use of sound license in accordance with Section service subscription package, and not recordings via digital transmissions 114(f) of the Act). The Judges have available separately for a separate fee. made by new subscription services and commenced two prior proceedings for See 37 CFR 383.2(h). for the making of ephemeral recordings five-year rate periods pursuant to these The Judges ‘‘may decline to adopt the to facilitate those transmissions during two provisions, both of which ended agreement as a basis for statutory terms the period commencing January 1, 2016, when the participants reached an agreement of the applicable rates and and rates for participants that are not and ending on December 31, 2020. parties to the agreement,’’ only ‘‘if any terms. See 72 FR 72253 (December 20, DATES: Effective: January 1, 2016. participant [to the proceeding] objects to 2007) and 75 FR 14074 (March 24, FOR FURTHER INFORMATION CONTACT: 2010). The current rate period expires the agreement and the [Judges] Kimberly Whittle, Attorney Advisor, by December 31, 2015. conclude, based on the record before telephone at (202) 707–7658, or by Pursuant to section 803(b)(1)(A)(i)(III) them if one exists, that the agreement email at crb@loc.gov. of the Copyright Act, the Judges does not provide a reasonable basis for SUPPLEMENTARY INFORMATION: On published in the Federal Register a setting statutory terms or rates.’’ 17 December 12, 2014, the Copyright notice commencing a rate determination U.S.C. 801(b)(7)(A)(ii). The Judges Royalty Judges (Judges) received a joint proceeding for the 2016–2020 rate received no comments or objections in motion from SoundExchange, Inc. period and requesting interested parties response to their request for comments (‘‘SoundExchange’’) and Sirius XM to submit Petitions to Participate. See 79 published in the Federal Register. Radio, Inc. (‘‘Sirius XM’’) to adopt a FR 410 (January 3, 2014). The Judges The Judges, therefore, by this notice, settlement of royalty rates and terms received Petitions to Participate from adopt as final regulations for the period under Sections 112(e) and 114 of the Music Reports, Inc. (‘‘Music Reports’’), commencing January 1, 2016, and Copyright Act (‘‘the Act’’) for 2016–2020 National Music Publishers Association ending on December 31, 2020, the rates for new subscription services of the type (‘‘NMPA’’), Sirius XM, Spotify USA, and terms agreed to by Sirius XM and at issue in the captioned proceeding Inc., and SoundExchange. The Judges SoundExchange for digital transmission (i.e., music services provided to subsequently dismissed the petitions to of sound recordings by new residential subscribers as part of a cable participate of NMPA and Music Reports. subscription services and the making of or satellite television bundle). See Joint See Order Dismissing Petition to ephemeral reproductions necessary to Motion to Adopt Settlement at 1 and 37 Participate (Music Reports) (May 30, facilitate those transmissions. CFR 383.2(h). Sirius XM creates music 2014) and Order Granting and nonmusic programming and SoundExchange Motion to Deny the List of Subjects in 37 CFR Part 383 transmits it through its satellite digital Petition to Participate of National Music audio radio service and other outlets. Publishers’ Association (April 30, 2014). Copyright, Digital audio mstockstill on DSK4VPTVN1PROD with RULES According to Sirius XM, it relies on the On September 26, 2014, Spotify transmissions, Performance right, Sound royalty rates and terms in 37 CFR part withdrew from the proceeding. See recordings. 383 for music programming it provides Notice of Withdrawal of Petition to Final Regulation through the DiSH satellite television Participate. As a result, Sirius XM and service. Joint Motion at 2. SoundExchange are the only remaining For the reasons set forth in the SoundExchange is a nonprofit participants in this proceeding. Joint preamble, the Copyright Royalty Board organization that is jointly controlled by Motion at 2. amends 37 CFR part 383 as follows: VerDate Sep<11>2014 17:11 Jun 26, 2015 Jkt 235001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\29JNR1.SGM 29JNR1

36928 Federal Register / Vol. 80, No. 124 / Monday, June 29, 2015 / Rules and Regulations PART 383—RATES AND TERMS FOR Subscriber to the Service of such ADDRESSES: The final BFEs for each SUBSCRIPTION TRANSMISSIONS AND Licensee: community are available for inspection THE REPRODUCTION OF EPHEMERAL (i) 2016: $0.0179; at the office of the Chief Executive RECORDINGS BY CERTAIN NEW (ii) 2017: $0.0185; Officer of each community. The SUBSCRIPTION SERVICES (iii) 2018: $0.0190; respective addresses are listed in the (iv) 2019: $0.0196; table below. ■ 1. The authority citation for part 383 (v) 2020: $0.0202; FOR FURTHER INFORMATION CONTACT: Luis continues to read as follows: (2) For Bundled Contracts, the Rodriguez, Chief, Engineering Authority: 17 U.S.C. 112(e), 114, and following monthly payment per Management Branch, Federal Insurance 801(b)(1). Subscriber to the Service of such and Mitigation Administration, Federal Licensee: Emergency Management Agency, 500 C ■ 2. The heading for part 383 is revised (i) 2016: $0.0299; to read as set forth above. Street SW., Washington, DC 20472, (ii) 2017: $0.0308; (202) 646–4064, or (email) § 383.1 [Amended] (iii) 2018: $0.0317; Luis.Rodriguez3@fema.dhs.gov. (iv) 2019: $0.0326; ■ 3. Amend § 383.1 as follows: (v) 2020: $0.0336; SUPPLEMENTARY INFORMATION: The ■ a. In paragraph (a), by removing ‘‘from Federal Emergency Management Agency the inception of the Licensees’ Services’’ * * * * * (FEMA) makes the final determinations and adding in its place ‘‘January 1, § 383.4 [Amended] listed below for the modified BFEs for 2016,’’ and by removing ‘‘2015’’ and each community listed. These modified adding in its place ‘‘2020’’; and ■ 6. Amend § 383.4 in paragraph (a), by removing ‘‘2007–2013’’ and adding in elevations have been published in ■ b. In paragraph (c), by adding newspapers of local circulation and 90 ‘‘voluntary’’ before ‘‘license its place ‘‘2013–2017’’ and by removing ‘‘2015’’ and adding in its place ‘‘2020’’. days have elapsed since that agreements’’. publication. The Deputy Associate Dated: March 24, 2015. Administrator for Mitigation has § 383.2 [Amended] Suzanne M. Barnett, resolved any appeals resulting from this ■ 4. Amend § 383.2 as follows: Chief Copyright Royalty Judge. notification. ■ a. By removing paragraph (a); This final rule is issued in accordance ■ b. By redesignating paragraphs (b) Approved by: James H. Billington, with section 110 of the Flood Disaster through (f) as paragraphs (a) through (e); Librarian of Congress. Protection Act of 1973, 42 U.S.C. 4104, ■ c. In newly redesignated paragraph and 44 CFR part 67. FEMA has (b), by adding ‘‘made under this part [FR Doc. 2015–12668 Filed 6–26–15; 8:45 am] developed criteria for floodplain pursuant to the statutory licenses’’ BILLING CODE 1410–72–P management in floodprone areas in before ‘‘under 17 U.S.C.’’, by removing accordance with 44 CFR part 60. ‘‘or’’ and adding in its place ‘‘and’’, and by removing ‘‘(g)’’; Interested lessees and owners of real DEPARTMENT OF HOMELAND ■ d. In newly redesignated paragraph property are encouraged to review the SECURITY (c), by removing ‘‘from the inception of proof Flood Insurance Study and FIRM the Licensees’ Services’’ and adding in Federal Emergency Management available at the address cited below for its place ‘‘January 1, 2016,’’ and by Agency each community. The BFEs and removing ‘‘2015’’ and adding in its modified BFEs are made final in the place ‘‘2020’’; 44 CFR Part 67 communities listed below. Elevations at ■ e. In newly redesignated paragraph selected locations in each community [Docket ID FEMA–2015–0001] are shown. (d), by removing ‘‘(h)’’ and adding in its place ‘‘(f)’’; National Environmental Policy Act. Final Flood Elevation Determinations ■ f. By removing paragraph (g); This final rule is categorically excluded ■ g. By redesignating paragraphs (h) AGENCY: Federal Emergency from the requirements of 44 CFR part through (j) as paragraphs (f) through (h); Management Agency, DHS. 10, Environmental Consideration. An and ACTION: Final rule. environmental impact assessment has ■ h. In newly redesignated paragraph not been prepared. (f)(3), by removing ‘‘(h)’’ and adding in SUMMARY: Base (1-percent-annual- Regulatory Flexibility Act. As flood its place ‘‘(f)’’. chance) Flood Elevations (BFEs) and elevation determinations are not within ■ 5. Amend § 383.3 as follows: modified BFEs are made final for the the scope of the Regulatory Flexibility ■ a. In paragraph (a) introductory text, communities listed below. The BFEs Act, 5 U.S.C. 601–612, a regulatory by removing ‘‘License’’ and adding in its and modified BFEs are the basis for the flexibility analysis is not required. place ‘‘statutory licenses’’; floodplain management measures that Regulatory Classification. This final ■ b. By revising paragraphs (a)(1) and each community is required either to rule is not a significant regulatory action (2); and adopt or to show evidence of being under the criteria of section 3(f) of ■ c. In paragraph (b), by removing ‘‘, but already in effect in order to qualify or Executive Order 12866 of September 30, payable pursuant to the applicable remain qualified for participation in the 1993, Regulatory Planning and Review, regulations for all years 2007 and National Flood Insurance Program 58 FR 51735. earlier’’. (NFIP). Executive Order 13132, Federalism. mstockstill on DSK4VPTVN1PROD with RULES The revisions read as follows: This final rule involves no policies that DATES: The date of issuance of the Flood § 383.3 Royalty fees for public Insurance Rate Map (FIRM) showing have federalism implications under performances of sound recordings and the BFEs and modified BFEs for each Executive Order 13132. making of ephemeral recordings. community. This date may be obtained Executive Order 12988, Civil Justice (a) * * * by contacting the office where the maps Reform. This final rule meets the (1) For Stand-Alone Contracts, the are available for inspection as indicated applicable standards of Executive Order following monthly payment per in the table below. 12988. VerDate Sep<11>2014 17:11 Jun 26, 2015 Jkt 235001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\29JNR1.SGM 29JNR1


Document Created: 2015-12-15 14:24:48
Document Modified: 2015-12-15 14:24:48
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective: January 1, 2016.
ContactKimberly Whittle, Attorney Advisor, by telephone at (202) 707-7658, or by email at [email protected]
FR Citation80 FR 36927 
CFR AssociatedCopyright; Digital Audio Transmissions; Performance Right and Sound Recordings
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