80 FR 76577 - Copyright Royalty Judges' Ability To Set Rates and Terms That Distinguish Among Different Types or Categories of Licensors
LIBRARY OF CONGRESS
Copyright Office Federal Register Volume 80, Issue 236 (December 9, 2015)
Copyright Office
Federal Register Volume 80, Issue 236 (December 9, 2015)
| Page Range | 76577-76581 | |
| FR Document | 2015-30910 |
[Federal Register Volume 80, Number 236 (Wednesday, December 9, 2015)] [Notices] [Pages 76577-76581] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-30910] ======================================================================= ----------------------------------------------------------------------- LIBRARY OF CONGRESS Copyright Office [Docket No. 2015-5] Copyright Royalty Judges' Ability To Set Rates and Terms That Distinguish Among Different Types or Categories of Licensors AGENCY: U.S. Copyright Office, Library of Congress. ACTION: Final order. ----------------------------------------------------------------------- SUMMARY: The Copyright Royalty Judges (``CRJs'') referred a question of substantive law to the Register of Copyrights for resolution. The question asked whether section 114 of the Copyright Act or any other applicable provision of the Act prohibits the CRJs from setting rates and terms that distinguish among different types or categories of licensors. In a written opinion that was transmitted to the CRJs, the Register determined that the question was not properly presented in the proceeding and therefore the Register did not opine on its merits. That opinion is reproduced below. DATES: Effective Date: November 24, 2015. FOR FURTHER INFORMATION CONTACT: Stephen Ruwe, Assistant General Counsel, U.S. Copyright Office, P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707-8350. SUPPLEMENTARY INFORMATION: The Copyright Royalty Judges are tasked with determining and adjusting rates and terms of royalty payments for statutory licenses under the Copyright Act. See 17 U.S.C. 801. If, in the course of proceedings before the CRJs, novel material questions of substantive law concerning the interpretation of provisions of title 17 arise, the CRJs are required by statute to refer those questions to the Register of Copyrights for resolution. 17 U.S.C. 802(f)(1)(B). On October 14, 2015, the CRJs, invoking 17 U.S.C. 802(f)(1)(B), referred to the Register the question of whether section 114 of the Copyright Act or any other applicable provision of the Act prohibits the CRJs from setting rates and terms that distinguish among different types or categories of licensors. The same day, the Register issued an order inviting the participants in the proceeding and other interested parties to file supplemental briefs on certain specified issues. On November 24, 2015, the Register issued a memorandum opinion in which she determined that the question was not presented within the meaning of 17 U.S.C. 802(f)(1)(B), and therefore the Register did not opine on the question's merits. To provide the public with notice of the Register's response, the Memorandum Opinion is reproduced in its entirety below. Dated: December 2, 2015. Maria A. Pallante, Register of Copyrights. Before the U.S. Copyright Office Library of Congress Washington, DC 20559 In the Matter of DETERMINATION OF ROYALTY RATES AND TERMS FOR EPHEMERAL RECORDING AND WEBCASTING DIGITAL PERFORMANCE OF SOUND RECORDINGS (Web IV), Docket No. 14-CRB-0001-WR (2016-2020) (Web IV) MEMORANDUM OPINION ON NOVEL MATERIAL QUESTION OF LAW In the above-captioned proceeding (``Web IV''), currently pending before the Copyright Royalty Judges (``CRJs'' or ``Judges''), the Judges will establish royalty rates and terms for webcasters' digital performance of sound recordings and making of ephemeral recordings under the statutory licenses embodied in sections 112(e) and 114(f)(2) of the Copyright Act (``Act''), such rates and terms to apply for the five-year period beginning January 1, 2016. The Act requires the CRJs to establish rates and terms that ``distinguish among the different types of eligible nonsubscription transmission services and new subscription services''--that is, among different types of webcasting services--but does not include the same instruction vis-a-vis the licensors of sound recordings under the relevant licenses.\1\ --------------------------------------------------------------------------- \1\ 17 U.S.C. 114(f)(2). --------------------------------------------------------------------------- On September 11, 2015, relying upon section 802(f)(1)(B), the CRJs referred to the Register of Copyrights the following question: Does Section 114 of the Act (or any other applicable provision of the Act) prohibit the Judges from setting rates and terms that distinguish among different types or categories of licensors, assuming a factual basis in the evidentiary record before the Judges demonstrates such a distinction in the marketplace? \2\ --------------------------------------------------------------------------- \2\ Order Referring Novel Material Question of Law and Setting Briefing Schedule, Docket No. 14-CRB-0001-WR (2016-2020) (Sept. 11, 2015) (``Referral Order''). Section 802(f)(1)(B) requires the CRJs to request a decision of the Register ``[i]n any case in which a novel material question of substantive law concerning an interpretation of those provisions of [title 17] that are the subject of the proceeding is presented.'' \3\ The Register's decision is to be issued within thirty days after the Register receives all of the briefs or comments of the participants and her determination becomes part of the record of the proceeding.\4\ --------------------------------------------------------------------------- \3\ 17 U.S.C. 802(f)(1)(B)(i). \4\ Id. --------------------------------------------------------------------------- For the reasons explained below, the Register of Copyrights concludes that the question posed by the CRJs is not in fact ``presented'' in this proceeding, and was therefore not properly referred to the Register for decision. I. Background Rates and terms under the statutory licenses set forth in sections 112(e) and 114(f)(2) are to be to be set under the ``willing buyer/ willing seller standard,'' meaning that the rates and terms should be those ``that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.'' \5\ In establishing those rates and terms, the CRJs ``may consider the rates and terms for comparable types of digital audio transmission services and comparable circumstances under voluntary license agreements.'' \6\ The Act also specifies that ``[s]uch rates and terms shall distinguish among the different types of [services] then in operation . . . such differences to be based on criteria including, but not limited to, the quantity and nature of the use of sound recordings and the degree to which use of the service may substitute for or may promote the purchase of phonorecords by consumers.'' \7\ --------------------------------------------------------------------------- \5\ 17 U.S.C. 114(f)(2)(B); see also id. Sec. 112(e)(4). \6\ 17 U.S.C. 114(f)(2)(B); see also id. Sec. 112(e)(4). \7\ 17 U.S.C. 114(f)(2)(B). --------------------------------------------------------------------------- Neither section 114 nor any other provision of the Act includes any express language addressing whether or not webcasting rates and terms can distinguish among licensors of sound recordings. Since the inception of the statutory license for the digital performance of sound recordings in 1995, the CRJs--as well as their predecessor, the Copyright Arbitration Royalty Panels--have established uniform rates and terms for all licensors [[Page 76578]] of sound recordings under the section 114 and 112 licenses.\8\ --------------------------------------------------------------------------- \8\ See generally, e.g., Determination of Royalty Rates for Digital Performance Right in Sound Recordings and Ephemeral Recordings, 79 FR 23,102 (Apr. 25, 2014); Determination of Rates and Terms for Preexisting Subscription Services and Satellite Digital Audio Radio Services, 78 FR 23,054 (April 17, 2013); Digital Performance Right in Sound Recordings and Ephemeral Recordings, 76 FR 13,026 (Mar. 9, 2011); Digital Performance Right in Sound Recordings and Ephemeral Recordings, 72 FR 24,084 (May 1, 2007); Determination of Reasonable Rates and Terms for the Digital Performance of Sound Recordings by Preexisting Subscription Services, 68 FR 39,837 (July 3, 2003); Determination of Reasonable Rates and Terms for the Digital Performance of Sound Recordings and Ephemeral Recordings, 67 FR 45,240 (July 8, 2002); Determination of Reasonable Rates and Terms for the Digital Performance of Sound Recordings, 63 FR 25,394 (May 8, 1998). --------------------------------------------------------------------------- On September 11, 2015, after the close of the record in this proceeding, the CRJs issued an order referring the above-cited novel material question of substantive law to the Register and requesting briefing on the question from the parties.\9\ As noted, the CRJs invoked 17 U.S.C. 802(f)(1)(B) as the basis for their referral. That provision states that ``[i]n any case in which a novel material question of substantive law concerning an interpretation of those provisions of this title that are the subject of the proceeding is presented, the Copyright Royalty Judges shall request a decision of the Register of Copyrights, in writing, to resolve such novel question.'' \10\ The CRJs must ``apply the legal determinations embodied in [a timely delivered] decision of the Register of Copyrights in resolving material questions of substantive law'' and must include the decision ``in the record that accompanies their final determination.'' \11\ --------------------------------------------------------------------------- \9\ See Referral Order at 2. \10\ 17 U.S.C. 802(f)(1)(B)(i). \11\ Id. --------------------------------------------------------------------------- The CRJs delivered the participants' initial and responsive briefs to the Copyright Office on October 14, 2015. That same day, the Register invited participants in the Web IV proceeding and other interested parties to file supplemental briefs on three specific issues relating to the novel material question of substantive law: 1. Is there any evidence in the legislative history of the 1909 Copyright Act, the 1976 Copyright Act, the Digital Performance Rights in Sound Recordings Act of 1995, the 1998 Digital Millennium Copyright Act, the Copyright Royalty and Distribution Reform Act of 2004, or any other legislation, of an intent by Congress to allow or disallow the establishment of rates and/or terms that distinguish among different types or categories of licensors? 2. How might the Register's decision affect other statutory licenses, e.g., the statutory license in section 115 for the making and distribution of phonorecords of nondramatic musical works? How, if at all, should any such broader implications factor into the Register's analysis? 3. Are there administrative law or constitutional considerations (including rational basis or due process concerns) that would affect or should guide the Judges' ability to adopt rates and/or terms for the compensation of copyright owners, featured recording artists, and others for the use of sound recordings based on the identity of the licensor? On October 26, 2015, the Office received supplemental briefing from participants and other interested parties in response to the above questions. II. Summary of the Parties' Arguments A. Position of SoundExchange SoundExchange, Inc. (``SoundExchange'') is the entity currently designated for purposes of sections 114 and 112 to collect statutory royalties from webcasting (and certain other) services and distribute them to copyright owners and recording artists. In the Web IV ratesetting proceedings before the CRJs, SoundExchange served as the primary representative of copyright owners and artists, including major and independent record labels, featured recording artists, and the two artist unions designated under the statute to receive and distribute royalties to nonfeatured musicians and vocalists--the American Federation of Musicians of the United States and Canada (``AFM'') and the Screen Actors Guild-American Federation of Television and Radio Artists (``SAG-AFTRA'').\12\ It is undisputed that during the ratesetting proceedings before the CRJs, SoundExchange--acting on behalf of its constituent interests--proposed rates and terms that did not distinguish among licensors of sound recordings.\13\ --------------------------------------------------------------------------- \12\ 17 U.S.C. 114(g)(2)(B), (C). \13\ SoundExchange Initial Br. at 2; see also SoundExchange Supp. Br. at 2 (``In the proceeding, SoundExchange identified, based on the best marketplace evidence, a single royalty rate for all commercial licensees utilizing the statutory license.''). --------------------------------------------------------------------------- Although SoundExchange represented the vast majority of copyright owner participants during the Web IV ratesetting proceedings,\14\ it has declined to take a position on the question referred by the CRJs.\15\ Instead, SoundExchange noted that two groups of its constituents--UMG Recordings, Inc., Capitol Records, LLC, and Sony Music Entertainment (collectively, ``Major Labels''), on the one hand, and the American Association of Independent Music, AFM, and SAG-AFTRA (collectively, ``Independent Labels and Unions''), on the other--would be filing their own briefs.\16\ These groups are represented by separate counsel for the present purpose and, as explained below, take diametrically opposed positions on the merits. --------------------------------------------------------------------------- \14\ George Johnson, an individual sound recording owner, represented himself during ratesetting proceedings. See George Johnson Initial Br. at 1; NAB/NRBNMLC Response Br. at 1 n.1. \15\ SoundExchange Initial Br. at 1; SoundExchange Response Br. at 1. \16\ SoundExchange Initial Br. at 1. --------------------------------------------------------------------------- Although SoundExchange has declined to take a position on the merits of the referred question, it does, however, stress that ``[b]ecause segmentation by licensor would raise issues that no party has addressed'' in the proceeding, if the Register were to determine that segmentation were legally permissible, the parties would need to be given an opportunity to further address those issues.\17\ --------------------------------------------------------------------------- \17\ Id. at 2. --------------------------------------------------------------------------- B. Position of Independent Labels and Unions, Music Managers, and Webcasters The Independent Labels and Unions and Music Managers Forum, along with webcasting parties iHeartMedia, Inc., Pandora Media, Inc., SiriusXM Radio, Inc., and the National Association of Broadcasters and National Religious Broadcasters Noncommercial Music License Committee (``NAB/NRBNMLC'') (the webcasting parties collectively, ``Webcasters''), contend that the CRJs lack the authority to adopt different rates and terms for different categories of licensors.\18\ These parties argue that the overall structure of section 114 demonstrates that Congress did not intend for parties to adopt differential rates for licensors. --------------------------------------------------------------------------- \18\ See, e.g., Independent Labels and Unions Initial Br. at 24; iHeartMedia Initial Br. at 3; SiriusXM Initial Br. at 1; Pandora Initial Br. at 1; NAB/NRBNMLC Response Br.at 2; Music Managers Forum Supp. Br. at 1. --------------------------------------------------------------------------- For instance, these parties note that section 114 expressly allows the CRJs to set different rates and terms based on the type of webcasting service being licensed, but is silent as to whether the CRJs can differentiate among types of licensors. Relying on the canon of statutory construction known as expressio unius est exclusio alterius-- that is, the express mention of one subject impliedly excludes other subjects--this group urges that this silence was purposeful, and shows Congress's intent to withhold from the CRJs the power to adopt different rates and terms for different licensors. They [[Page 76579]] also point to the provision stating that ``[t]he schedule of reasonable rates and terms'' adopted by the CRJs ``shall . . . be binding on all copyright owners,'' \19\ and argue that by referring to a single ``schedule'' that binds ``all'' copyright owners, Congress anticipated that the CRJs would maintain a single set of rates and terms for all licensors.\20\ --------------------------------------------------------------------------- \19\ 17 U.S.C. 114(f)(2)(B); 17 U.S.C. 112(e)(4). \20\ iHeartMedia Response Br. at 2-3, iHeartMedia Supp. Br. at 9-10; see also Independent Labels and Unions Initial Br. at 5-8. --------------------------------------------------------------------------- These parties also urge that adopting rates and terms that differentiate among categories of licensors would undermine Congress's desire for an administrable statutory license. For example, they note that the ownership or distribution rights for any given sound recording can change hands repeatedly, and that it thus may be difficult to know the current owner of any particular recording at a given point in time.\21\ According to these parties, it is unlikely that Congress would have established a scheme that made it difficult for a licensee to know what rates and terms apply to individual sound recordings.\22\ --------------------------------------------------------------------------- \21\ See, e.g., Independent Labels and Unions Initial Br. at 9 (``[T]he entity or person who owns or control rights of any particular recording can be quite fluid and historically quite hard to keep track of, as ownership and distribution rights change over time.''); Pandora Initial Br. at 5 (explaining that ``ownership of sound recordings is hardly static'' and providing examples of the different ways a given recording could cross back and forth between various categories of owners); Music Managers Forum Supp. Br. at 1 (``A recording could be made by an artist, licensed to an independent label, sold to a major label and then revert back to the artist.''). \22\ See, e.g., Independent Labels and Unions Initial Br. at 9- 11; iHeartMedia Initial Br. at 3; Pandora Initial Br. at 5-6 (``[M]ost if not all services would be unable to compute the license fees owed to SoundExchange under a differential-pricing regime, as they neither possess, nor have ready access to, all of the information necessary to determine which sound recordings are owned by which licensors, let alone at any given time, and into which licensor-category any given record label may fall.''). --------------------------------------------------------------------------- In addition to arguments about the merits of the referred question, the Independent Labels and Unions and Webcasters raise procedural concerns of due process under the Constitution and the Administrative Procedure Act.\23\ Specifically, they urge that, even if the Register were to conclude that the CRJs could adopt rates that distinguish among categories of licensors, the CRJs could not actually adopt such rates in this ratesetting proceeding.\24\ The Independent Labels and Unions and Webcasters argue that they had inadequate notice that the CRJs might adopt differential rates.\25\ They point to the CRJs' uniform historical practice of adopting rates and terms for webcasting that do not distinguish among different categories of licensors,\26\ and the fact that no party to the ratesetting proceeding proposed rates that distinguish among licensors.\27\ As NAB/NRBNMLC puts it, ``no participant had the opportunity, or any reason, to introduce evidence or to respond to any such proposal, or to demonstrate the potential administrative difficulties or consequences of such rates and terms.'' \28\ --------------------------------------------------------------------------- \23\ See, e.g., Independent Labels and Unions Initial Br. at 14- 22; NAB/NRBNMLC Response Br. at 1-2; SiriusXM Initial Br. at 3-4, 17-18; iHeartMedia Supp. Br. at 3-7. \24\ See, e.g., Independent Labels and Unions Initial Br. at 22; iHeartMedia Response Br. at 10. \25\ See, e.g., NAB/NRBNMLC Response Br. at 1; Independent Labels and Unions Initial Br. at 16; iHeartMedia Supp. Br. at 2, 4- 6. \26\ See, e.g., Independent Labels and Unions Initial Br. at 11- 13; iHeartMedia Supp. Br. at 3. \27\ See, e.g., Independent Labels and Unions Initial Br. at 13- 14; Pandora Initial Br. at 4; iHeartMedia Response Br. at 9; SiriusXM Initial Br. at 6, 17; NAB/NRBNMLC Response Br. at 1. \28\ NAB/NRBNMLC Response Br. at 1; see also Independent Labels and Unions Initial Br. at 13-14. --------------------------------------------------------------------------- Indeed, the Independent Labels and Unions urge that they agreed to be represented by SoundExchange in the ratesetting proceedings on the assumption that SoundExchange would seek, and the CRJs would adopt, a single set of rates for all licensors.\29\ The Independent Labels and Unions suggest that, had the possibility of rates and terms that differentiate among licensors in fact been before the CRJs, SoundExchange could not have fairly represented all of its constituents--who disagree about the desirability of differential rates--and the Independent Labels and Unions would have participated in the proceedings in their own right.\30\ --------------------------------------------------------------------------- \29\ Independent Labels and Unions Initial Br. at 14. \30\ Id. at 14, 23. --------------------------------------------------------------------------- C. Position of the Major Labels and George Johnson The Major Labels, supported by George Johnson, an individual sound recording owner, contend that the CRJs are permitted to adopt rates and terms that distinguish among types or categories of licensors.\31\ Citing precedent from the U.S. Court of Appeals for the D.C. Circuit, the Major Labels argue that the CRJs have ``broad discretion to effectuate their mandate under Section 114 to establish rates that most clearly represent the rates negotiated by a willing buyer and a willing seller in the marketplace.'' \32\ They stress that no provision of the Copyright Act limits the CRJs' ability to adopt rates that distinguish among licensors. --------------------------------------------------------------------------- \31\ Major Labels Initial Br. at 2; George Johnson Response Br. at 4-5. \32\ Major Labels Initial Br. at 3. --------------------------------------------------------------------------- In addition, the Major Labels point to provisions of the statute that they claim indicate Congress's intent to allow the CRJs to establish such differential rates. For example, they argue that the willing buyer/willing seller standard ``necessarily contemplates the possibility of setting different rates for different kinds of licensors, because it directs the Judges to set rates and terms that reflect those that would be found in a hypothetical marketplace characterized by precisely such differentiation.'' \33\ The Major Labels urge that the statutory provisions upon which the Independent Labels and Artists, the Music Managers Forum, and Webcasters rely do not cabin the CRJs' generally broad discretion to set rates and terms as they deem appropriate in light of the record evidence.\34\ Furthermore, they dismiss the administrability concerns raised by those groups as irrelevant to the question asked, arguing that those arguments ``are outside the scope of the [referral order] and irrelevant to the pure question of law posed by the Judges.'' \35\ --------------------------------------------------------------------------- \33\ Id. at 6. \34\ Id. at 2-8, 12-14. \35\ Id. at 16. --------------------------------------------------------------------------- The Major Labels similarly dismiss the due process arguments raised by the Independent Labels and Unions and Webcasters as ``irrelevant to answering the question posed'' by the CRJs, which they again emphasize to be a ``pure question of law.'' \36\ They further argue that, even if those issues were relevant, the CRJs are not foreclosed from adopting a rate structure that distinguishes among licensors by crediting evidence already in the record. They point in particular to the CRJs' notice initiating the ratesetting proceeding, in which the CRJs stated that they were `` `open to receiving evidence, testimony, and argument regarding any reasonable rate structure,' '' requesting participants to ``address the importance `of the presence of economic variation among buyers and sellers.' '' \37\ The Major Labels suggest that these statements provided the parties with sufficient notice that the CRJs were willing to consider rates that differentiate among different licensors. Even so, the Major Labels do not challenge the assertion that no party to the ratesetting [[Page 76580]] proceeding pressed for rates or terms that distinguish among licensors. --------------------------------------------------------------------------- \36\ Id. at 15. \37\ Major Labels Supp. Br. at 13 (quoting 79 FR 412, 413 (Jan. 3, 2014)) (emphasis in orginal). --------------------------------------------------------------------------- D. Position of Music Publishers Regarding Impact on Other Statutory Licenses In response to the Register's invitation to non-participants to offer their views, the National Music Publishers Association, Inc. (``NMPA'') and a group comprising the Independent Music Publishers Forum, the Association of Independent Music Publishers, and a group of nine independent music publishers (this group collectively, ``IMPF/ AIMP''), filed supplemental briefs. NMPA did not take a position on the merits of the referred question.\38\ IMPF/AIMP, however, adopted the arguments of the Independent Labels and Artists, taking the position that ``Section 114 does not permit the Copyright Royalty Judges to award different rates based on the identity or categorization of the licensors.'' \39\ --------------------------------------------------------------------------- \38\ NMPA Supp. Br. at 2. \39\ IMPF/AIMP Supp. Br. at 4. --------------------------------------------------------------------------- NMPA and IMPF/AIMP also addressed the Register's question regarding the implications of the decision here for other statutory licenses.\40\ They asked the Register to expressly confine her decision to sections 112 and 114, and state that the decision does not have any impact on the statutory license in section 115 for the making and distribution of phonorecords of nondramatic musical works.\41\ According to NMPA, ``Section 115 is a very different license than Section 114,'' as it concerns ``an entirely different type of royalty, and an entirely different group of stakeholders.'' \42\ --------------------------------------------------------------------------- \40\ See NMPA Supp. Br. at 3-7; IMPF/AIMP Supp. Br. at 4-5. Other parties also addressed this question to varying extents. See, e.g., Independent Labels and Unions Supp. Br. at 2-3 (arguing that a decision here ``would impact all Copyright Office rate proceedings''); SiriusXM Supp. Br. at 5-7 (arguing that any ruling here ``should be strictly limited'' to the Web IV proceeding, discussing differences between the licenses); Major Labels Supp. Br. at 5-8 (arguing that the potential ramifications of any decision on other statutory licenses are beyond the scope of the referred question and irrelevant to its resolution, discussing differences between the licenses). \41\ NMPA Supp. Br. at 7; IMPF/AIMP Supp. Br. at 4-5. \42\ NMPA Supp. Br. at 3. --------------------------------------------------------------------------- III. Register's Determination Having carefully considered the statutory framework and the parties' submissions, the Register of Copyrights concludes that there is no basis in the context of the current proceeding on which to render an opinion on the question posed by the CRJs, as the question does not meet the statutory criteria for referral. In referring the question to the Register for a written opinion, the Judges relied on 17 U.S.C. 802(f)(1)(B). That provision, however, requires the CRJs to request a decision from the Register only in a ``case in which a novel material question of substantive law concerning an interpretation of those provisions of [title 17] that are the subject of the proceeding is presented.'' \43\ Similarly, section 802(f)(1)(A)(ii)--which the CRJs did not cite but also could arguably apply--gives the CRJs discretion to obtain a formal written opinion from the Register of Copyrights concerning ``any material questions of substantive law that relate to the construction of provisions of this title and arise in the course of the proceeding.'' \44\ Thus, by their plain terms, these two statutory mechanisms requiring a written opinion from the Register may only be invoked by the CRJs where a referred question is actually ``presented'' or ``arise[s]'' in a particular proceeding. --------------------------------------------------------------------------- \43\ 17 U.S.C. 802(f)(1)(B)(i) (emphasis added). \44\ Id. Sec. 802(f)(1)(A)(ii) (emphasis added). --------------------------------------------------------------------------- This reading of the statute is reinforced by its legislative history. Originally, when the CRJ system was enacted in 2004, the statute allowed the CRJs to refer material questions of substantive law to the Register under section 802(f)(1)(A)(ii) when they ``concern[ed] an interpretation or construction of those provisions of [title 17] that are the subject of the proceeding.'' \45\ On its face, this language appeared broadly to permit the referral of questions concerning any provision that was generally the ``subject'' of the proceeding (e.g., in the current proceeding, sections 112(e) and 114(f)), regardless of whether the specific question was actually implicated by the proceeding. But when Congress made technical corrections to the statute in 2006, it qualified section 802(f)(1)(A)(ii) to clarify that questions may be referred under this provision only when they actually ``arise in the course of the proceeding.'' \46\ By adding the ``arise'' requirement, the amendment brought section 802(f)(1)(A)(ii) more closely into alignment with section 802(f)(1)(B)(i), which already contained the ``presented'' language. In limiting the referral mechanism in both cases, Congress signaled its intent that questions sent to the Register for a written opinion--whether novel and/or material--should be confined to matters actually at issue in a proceeding. --------------------------------------------------------------------------- \45\ Copyright Royalty and Distribution Reform Act of 2004, Pub. L. 108-419, Sec. 3(a), 118 Stat. 2341, 2346 (2004). \46\ Copyright Royalty Judges Program Technical Corrections Act, Pub. L. 109-303, Sec. 3, 120 Stat. 1478, 1478-79 (2006). --------------------------------------------------------------------------- Whether a question of substantive law is actually ``presented'' or ``arises'' in a particular case will inevitably depend upon the circumstances of that proceeding. It will often be readily apparent that the question is presented, such as when the question concerns a statutory limitation on the CRJs' authority to consider certain types of evidence sought to be presented by participants,\47\ whether a specific term proposed by a party for adoption in a settlement is consistent with the Act,\48\ the extent of the CRJs' continuing jurisdiction over a prior determination under the Act,\49\ or whether a statutory license extends to a particular activity for which a party seeks to have a rate established.\50\ In each of these examples, the Register's answer to the question will presumably have an impact on the conduct or outcome of the proceeding. --------------------------------------------------------------------------- \47\ Scope of the Copyright Royalty Judges' Continuing Jurisdiction, 80 FR 58,300 (Sept. 28, 2015). \48\ See., e.g., Scope of the Copyright Royalty Judges Authority to Adopt Confidentiality Requirements upon Copyright Owners within a Voluntarily Negotiated License Agreement, 78 FR 47,421 (Aug. 5, 2013) (in section 115 proceeding, determining that CRJs lacked authority to adopt certain provisions imposing a duty of confidentiality upon copyright owners). \49\ See, e.g., Scope of the Copyright Royalty Judges' Continuing Jurisdiction, 80 FR 25,333 (May 4, 2015) (determining that CRJs had the authority to issue a clarifying interpretation of regulations adopted in a prior ratesetting determination). \50\ Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding, 71 FR 64,303 (Nov. 1, 2006). --------------------------------------------------------------------------- Here, by contrast, the Register finds that the question whether the CRJs may adopt rates and terms for webcasting that distinguish among different types or categories of licensors is merely a theoretical one in the context of this proceeding. As noted, the CRJs have not previously adopted rates and terms for webcasting services that distinguish among licensors. Setting aside the question whether the CRJs have the authority to do so, it is clear from the submissions in response to the referred question that the various participants litigated this case on the assumption that the outcome would be an undifferentiated rate structure for licensors. To be sure, in initiating the proceeding, the CRJs broadly invited parties to provide evidence and argument ``regarding any reasonable rate structure'' or ``the presence of economic variations among buyers and sellers.'' \51\ [[Page 76581]] But it is undisputed that no participant in the proceeding in fact proposed rates or terms that differentiated among licensors and, accordingly, such a structure was not understood to be a subject of litigation.\52\ Moreover, based on the parties' briefs in response to the referred question and the Copyright Office's review of the Web IV docket, there is no indication that the CRJs went beyond their general invitation at the outset of the proceeding to require that such differentiation be addressed.\53\ As a result, no party addressed the question of ``segmentation by licensor,'' \54\ and ``no participant had the opportunity, or any reason, to introduce evidence or to respond to any such proposal, or to demonstrate the potential administrative difficulties or consequences of such rates and terms.'' \55\ --------------------------------------------------------------------------- \51\ Determination of Royalty Rates for Digital Performance in Sound Recordings and Ephemeral Recordings (Web IV), 79 FR 412, 413 (Jan. 3, 2014). In that notice, the CRJs also referred generally to the concept of ``price discrimination'' in free market transactions, and invited participants to address ``the potential applicability or inapplicability of price discrimination within the commercial webcaster segment of the market as well.'' Id. at 413-14. But the CRJs' discussion focused on price discrimination by sellers--i.e., where sellers charge different prices for identical goods with the price differences based on the status of the buyers. Id. at 413. That, of course, is the type of price discrimination expressly contemplated by the statute, which requires the CRJs to adopt ``rates and terms [that] distinguish among the different types of [services] then in operation.'' 17 U.S.C. 114(f)(2). \52\ See NAB/NRBNMLC Response Br. at 1; SiriusXM Initial Br. at 6; Independent Labels and Unions Initial Br. at 11-12; see also Direct Testimony of Kurt Hanson Submitted on behalf of AccuRadio, LLC, 16-18 (Oct. 6, 2014); Written Direct Statement of College Broadcasters, Inc. (Oct. 7, 2014) (attaching proposed regulations); Letter from David Oxenford on behalf of Educational Media Foundation to Copyright Royalty Board (Oct. 7, 2014) (joining in the rate proposal submitted by NRBNMLC); Written Direct Statement of Geo Music Group, 4-5 (Oct. 10, 2014); Written Testimony of Michael Papish on behalf of Harvard Radio Broadcasting Co., Inc. (WHRB) (Oct. 7, 2014); Written Testimony of Frederick J. Kass on behalf of Intercollegiate Broadcasting System (Oct. 7, 2014); Proposed Rates and Terms of iHeartMedia, Inc. (Oct. 7, 2014); Written Direct Statement of the National Association of Broadcasters, Vol. 1B (Oct. 7, 2014); Written Direct Case of the Corporation for Public Broadcasting, on behalf of National Public Radio, Inc., including National Public Radio, Inc.'s Member Stations, American Public Media, Public Radio International, and Public Radio Exchange Broadcasting, 6-8 (Oct. 7, 2014); Written Direct Statement of the National Religious Broadcasters Noncommercial Music License Committee, Including Educational Media Foundation (Oct. 7, 2014); Proposed Rates and Terms of Pandora Media, Inc.; Written Direct Statement of Sirius XM Radio Inc., 1-2 (Oct. 7, 2014); Proposed Rates and Terms of SoundExchange, Inc. (Oct. 7, 2014). \53\ See Notice of Participants, Commencement of Voluntary Negotiation Period, and Case Scheduling Order, Docket No. 14-CRB- 0001-WR (2016-2020), 1 (Feb. 19, 2014) (asking parties to ``address expressly issues relating to categories of licensees,'' but omitting any mention of issues relating to categories of licensors). \54\ SoundExchange Initial Br. at 2. In this regard, it is notable that SoundExchange finds itself unable to put forth a unified view on the question of differentiated rates. Presumably SoundExchange could not have acted as the representative of virtually all of the rightsholders in the proceeding if the question of a differentiated rate structure was actually in contention. See Independent Labels and Unions Initial Br. at 14. \55\ See NAB/NRBNMLC Response Br. at 1. --------------------------------------------------------------------------- In this regard, the Register further observes that the CRJs are statutorily required to make determinations that are ``supported by the written record'' \56\ and based ``on economic, competitive and programming information presented by the parties.'' \57\ Significantly, the U.S. Court of Appeals for the D.C. Circuit has twice vacated CRJ determinations that relied on theories ``first presented in the Judges' determination and not advanced by any participant.''\58\ Here-- consistent with their rate proposals--the participants' respective proposed findings of fact and conclusions of law submitted at the conclusion of the proceeding uniformly fail to advocate for statutory rates and terms that distinguish among licensors.\59\ Moreover, in briefing the question now before the Register, no party has identified any basis upon which the CRJs could reasonably rely to adopt a differentiated rate structure.\60\ Thus, even assuming for the sake of argument that they possess the legal authority to establish rates that differentiate by licensor,\61\ it seems that under the current circumstances, the CRJs could not meet their basic obligation ``to make [a] reasoned decision[] supported by the written record before them.'' \62\ --------------------------------------------------------------------------- \56\ 17 U.S.C. 803(c)(3). \57\ Id. Sec. 114(f)(2)(B). \58\ Settling Devotional Claimants v. Copyright Royalty Bd., 797 F.3d 1106, 1121 (D.C. Cir. 2015) (quoting Intercollegiate Broad. Sys. v. Copyright Royalty Bd., 574 F.3d 748, 767 (D.C. Cir. 2009) (internal quotation marks omitted)). \59\ See Proposed Findings and Conclusions of Intercollegiate Broadcasting Systems, 13 (July 19, 2015); Proposed Findings of Fact of iHeartMedia, Inc., 207 (June 24, 2015); National Association of Broadcasters' Proposed Findings of Fact and Conclusions of Law (July 19, 2015) (attaching NAB's Proposed Rates and Terms); The National Religious Broadcasters Noncommercial Music License Committee's Corrected Proposed Findings of Fact and Conclusions of Law (June 24, 2015) (attaching NRBNMLC's Proposed Noncommercial Webcaster Rates and Terms); Pandora Media, Inc.'s Proposed Findings of Fact and Conclusions of Law, 1-2 (June 19, 2015); Sirius XM Radio Inc.'s Proposed Findings of Fact, 1 (June 19, 2015); Proposed Findings of Fact of SoundExchange, Inc., 94-96 (June 19, 2015); Proposed Findings and Conclusions on behalf of Harvard Radio Broadcasting Co., Inc. (WHRB) (June 19, 2015). \60\ Although the Major Labels suggest that the CRJs could ``credit evidence supporting a different rate structure than they have adopted in the past,'' they do not point to any actual argument or evidence in the record that would support such an approach. See Majors Labels Supp. Br. at 14. In any event, as noted, such an approach would appear to run afoul of controlling precedent. See Settling Devotional Claimants, 797 F.3d at 1121 (reversing CRJ determination where theory was ``first presented in the Judges' determination and not advanced by any participant''). \61\ In considering these procedural issues, the Register does not mean to suggest any conclusion concerning the CRJs' legal authority to adopt rates and terms that distinguish among licensors. \62\ Settling Devotional Claimants, 797 F.3d at 1121. --------------------------------------------------------------------------- In sum, given the posture of the case, the question referred by the CRJs appears to be only a theoretical one in that the Register is unable to discern how a written decision at this juncture could substantively impact the conduct or outcome of this proceeding.\63\ Indeed, the question itself is presented in hypothetical terms: it asks the Register to ``assum[e] a factual basis in the evidentiary record'' for a distinction among licensors. As significant as the question of a differentiated rate structure for licensors might be under different circumstances, the Register does not believe that the statute contemplates the issuance of a written opinion when the inquiry is wholly theoretical in nature. --------------------------------------------------------------------------- \63\ Referral Order at 2. --------------------------------------------------------------------------- The language of the Act makes clear that the referral procedure under section 802(f)(1)(B) is limited to novel material questions of substantive law that are actually ``presented.'' As the Register has concluded that the question set forth in the CRJs' September 11, 2015 order is not actually presented in this proceeding, she leaves the answer for another day. November 24, 2015 Maria A. Pallante Register of Copyrights and Director, United States Copyright Office [FR Doc. 2015-30910 Filed 12-8-15; 8:45 am] BILLING CODE 1410-30-P
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please visit http://www.nij.gov/ inviting the participants in the Section 802(f)(1)(B) requires the CRJs to
standards. proceeding and other interested parties request a decision of the Register ‘‘[i]n
to file supplemental briefs on certain any case in which a novel material
Nancy Rodriguez,
specified issues. On November 24, 2015, question of substantive law concerning
Director, National Institute of Justice. the Register issued a memorandum an interpretation of those provisions of
[FR Doc. 2015–30974 Filed 12–8–15; 8:45 am] opinion in which she determined that [title 17] that are the subject of the
BILLING CODE 4410–18–P the question was not presented within proceeding is presented.’’ 3 The
the meaning of 17 U.S.C. 802(f)(1)(B), Register’s decision is to be issued within
and therefore the Register did not opine thirty days after the Register receives all
LIBRARY OF CONGRESS on the question’s merits. To provide the
of the briefs or comments of the
public with notice of the Register’s
Copyright Office participants and her determination
response, the Memorandum Opinion is
reproduced in its entirety below. becomes part of the record of the
[Docket No. 2015–5] proceeding.4
Dated: December 2, 2015.
Copyright Royalty Judges’ Ability To Maria A. Pallante,
For the reasons explained below, the
Set Rates and Terms That Distinguish Register of Copyrights concludes that
Register of Copyrights.
Among Different Types or Categories the question posed by the CRJs is not in
of Licensors Before the U.S. Copyright Office fact ‘‘presented’’ in this proceeding, and
Library of Congress was therefore not properly referred to
AGENCY: U.S. Copyright Office, Library
the Register for decision.
of Congress. Washington, DC 20559
ACTION: Final order. I. Background
In the Matter of DETERMINATION OF
SUMMARY: The Copyright Royalty Judges ROYALTY RATES AND TERMS FOR Rates and terms under the statutory
(‘‘CRJs’’) referred a question of EPHEMERAL RECORDING AND licenses set forth in sections 112(e) and
WEBCASTING DIGITAL PERFORMANCE OF
substantive law to the Register of 114(f)(2) are to be to be set under the
SOUND RECORDINGS (Web IV), Docket No.
Copyrights for resolution. The question 14–CRB–0001–WR (2016–2020) (Web IV) ‘‘willing buyer/willing seller standard,’’
asked whether section 114 of the meaning that the rates and terms should
Copyright Act or any other applicable MEMORANDUM OPINION ON NOVEL be those ‘‘that most clearly represent the
provision of the Act prohibits the CRJs MATERIAL QUESTION OF LAW rates and terms that would have been
from setting rates and terms that negotiated in the marketplace between a
In the above-captioned proceeding
distinguish among different types or willing buyer and a willing seller.’’ 5 In
(‘‘Web IV’’), currently pending before
categories of licensors. In a written establishing those rates and terms, the
the Copyright Royalty Judges (‘‘CRJs’’ or
opinion that was transmitted to the CRJs ‘‘may consider the rates and terms
‘‘Judges’’), the Judges will establish
CRJs, the Register determined that the for comparable types of digital audio
royalty rates and terms for webcasters’
question was not properly presented in transmission services and comparable
digital performance of sound recordings
the proceeding and therefore the and making of ephemeral recordings circumstances under voluntary license
Register did not opine on its merits. under the statutory licenses embodied agreements.’’ 6 The Act also specifies
That opinion is reproduced below. in sections 112(e) and 114(f)(2) of the that ‘‘[s]uch rates and terms shall
DATES: Effective Date: November 24, Copyright Act (‘‘Act’’), such rates and distinguish among the different types of
2015. terms to apply for the five-year period [services] then in operation . . . such
FOR FURTHER INFORMATION CONTACT: beginning January 1, 2016. The Act differences to be based on criteria
Stephen Ruwe, Assistant General requires the CRJs to establish rates and including, but not limited to, the
Counsel, U.S. Copyright Office, P.O. Box terms that ‘‘distinguish among the quantity and nature of the use of sound
70400, Washington, DC 20024. different types of eligible recordings and the degree to which use
Telephone: (202) 707–8350. nonsubscription transmission services of the service may substitute for or may
SUPPLEMENTARY INFORMATION: The
and new subscription services’’—that is, promote the purchase of phonorecords
Copyright Royalty Judges are tasked among different types of webcasting by consumers.’’ 7
with determining and adjusting rates services—but does not include the same
instruction vis-a-vis the licensors of Neither section 114 nor any other
and terms of royalty payments for provision of the Act includes any
statutory licenses under the Copyright sound recordings under the relevant
licenses.1 express language addressing whether or
Act. See 17 U.S.C. 801. If, in the course not webcasting rates and terms can
On September 11, 2015, relying upon
of proceedings before the CRJs, novel distinguish among licensors of sound
section 802(f)(1)(B), the CRJs referred to
material questions of substantive law recordings. Since the inception of the
the Register of Copyrights the following
concerning the interpretation of statutory license for the digital
question:
provisions of title 17 arise, the CRJs are Does Section 114 of the Act (or any performance of sound recordings in
required by statute to refer those other applicable provision of the Act) 1995, the CRJs—as well as their
questions to the Register of Copyrights prohibit the Judges from setting rates predecessor, the Copyright Arbitration
for resolution. 17 U.S.C. 802(f)(1)(B). and terms that distinguish among
On October 14, 2015, the CRJs, Royalty Panels—have established
different types or categories of licensors, uniform rates and terms for all licensors
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invoking 17 U.S.C. 802(f)(1)(B), referred assuming a factual basis in the
to the Register the question of whether evidentiary record before the Judges
section 114 of the Copyright Act or any 0001–WR (2016–2020) (Sept. 11, 2015) (‘‘Referral
demonstrates such a distinction in the Order’’).
other applicable provision of the Act marketplace? 2 3 17 U.S.C. 802(f)(1)(B)(i).
prohibits the CRJs from setting rates and 4 Id.
terms that distinguish among different 1 17U.S.C. 114(f)(2). 5 17 U.S.C. 114(f)(2)(B); see also id. § 112(e)(4).
types or categories of licensors. The 2 Order Referring Novel Material Question of Law 6 17 U.S.C. 114(f)(2)(B); see also id. § 112(e)(4).
same day, the Register issued an order and Setting Briefing Schedule, Docket No. 14–CRB– 7 17 U.S.C. 114(f)(2)(B).
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of sound recordings under the section 2. How might the Register’s decision SoundExchange noted that two groups
114 and 112 licenses.8 affect other statutory licenses, e.g., the of its constituents—UMG Recordings,
On September 11, 2015, after the close statutory license in section 115 for the Inc., Capitol Records, LLC, and Sony
of the record in this proceeding, the making and distribution of Music Entertainment (collectively,
CRJs issued an order referring the above- phonorecords of nondramatic musical ‘‘Major Labels’’), on the one hand, and
cited novel material question of works? How, if at all, should any such the American Association of
substantive law to the Register and broader implications factor into the Independent Music, AFM, and SAG–
requesting briefing on the question from Register’s analysis? AFTRA (collectively, ‘‘Independent
the parties.9 As noted, the CRJs invoked 3. Are there administrative law or Labels and Unions’’), on the other—
17 U.S.C. 802(f)(1)(B) as the basis for constitutional considerations (including would be filing their own briefs.16 These
their referral. That provision states that rational basis or due process concerns) groups are represented by separate
‘‘[i]n any case in which a novel material that would affect or should guide the counsel for the present purpose and, as
question of substantive law concerning Judges’ ability to adopt rates and/or explained below, take diametrically
an interpretation of those provisions of terms for the compensation of copyright opposed positions on the merits.
this title that are the subject of the owners, featured recording artists, and Although SoundExchange has
proceeding is presented, the Copyright others for the use of sound recordings declined to take a position on the merits
Royalty Judges shall request a decision based on the identity of the licensor? of the referred question, it does,
of the Register of Copyrights, in writing, On October 26, 2015, the Office received however, stress that ‘‘[b]ecause
to resolve such novel question.’’ 10 The supplemental briefing from participants segmentation by licensor would raise
CRJs must ‘‘apply the legal and other interested parties in response issues that no party has addressed’’ in
determinations embodied in [a timely to the above questions. the proceeding, if the Register were to
delivered] decision of the Register of determine that segmentation were
Copyrights in resolving material II. Summary of the Parties’ Arguments legally permissible, the parties would
questions of substantive law’’ and must A. Position of SoundExchange need to be given an opportunity to
include the decision ‘‘in the record that SoundExchange, Inc. further address those issues.17
accompanies their final (‘‘SoundExchange’’) is the entity B. Position of Independent Labels and
determination.’’ 11 currently designated for purposes of
The CRJs delivered the participants’ Unions, Music Managers, and
sections 114 and 112 to collect statutory Webcasters
initial and responsive briefs to the royalties from webcasting (and certain
Copyright Office on October 14, 2015. The Independent Labels and Unions
other) services and distribute them to
That same day, the Register invited and Music Managers Forum, along with
copyright owners and recording artists.
participants in the Web IV proceeding webcasting parties iHeartMedia, Inc.,
In the Web IV ratesetting proceedings
and other interested parties to file Pandora Media, Inc., SiriusXM Radio,
before the CRJs, SoundExchange served
supplemental briefs on three specific Inc., and the National Association of
as the primary representative of
issues relating to the novel material Broadcasters and National Religious
copyright owners and artists, including
question of substantive law: Broadcasters Noncommercial Music
major and independent record labels,
1. Is there any evidence in the License Committee (‘‘NAB/NRBNMLC’’)
featured recording artists, and the two
legislative history of the 1909 Copyright (the webcasting parties collectively,
artist unions designated under the
Act, the 1976 Copyright Act, the Digital ‘‘Webcasters’’), contend that the CRJs
statute to receive and distribute
Performance Rights in Sound lack the authority to adopt different
royalties to nonfeatured musicians and
Recordings Act of 1995, the 1998 Digital rates and terms for different categories
vocalists—the American Federation of
Millennium Copyright Act, the of licensors.18 These parties argue that
Musicians of the United States and
Copyright Royalty and Distribution the overall structure of section 114
Canada (‘‘AFM’’) and the Screen Actors
Reform Act of 2004, or any other demonstrates that Congress did not
Guild-American Federation of
legislation, of an intent by Congress to intend for parties to adopt differential
Television and Radio Artists (‘‘SAG–
allow or disallow the establishment of rates for licensors.
AFTRA’’).12 It is undisputed that during For instance, these parties note that
rates and/or terms that distinguish
the ratesetting proceedings before the section 114 expressly allows the CRJs to
among different types or categories of
CRJs, SoundExchange—acting on behalf set different rates and terms based on
licensors?
of its constituent interests—proposed the type of webcasting service being
rates and terms that did not distinguish
8 See generally, e.g., Determination of Royalty licensed, but is silent as to whether the
Rates for Digital Performance Right in Sound among licensors of sound recordings.13
CRJs can differentiate among types of
Recordings and Ephemeral Recordings, 79 FR Although SoundExchange represented
23,102 (Apr. 25, 2014); Determination of Rates and the vast majority of copyright owner licensors. Relying on the canon of
Terms for Preexisting Subscription Services and participants during the Web IV statutory construction known as
Satellite Digital Audio Radio Services, 78 FR 23,054
ratesetting proceedings,14 it has expressio unius est exclusio alterius—
(April 17, 2013); Digital Performance Right in that is, the express mention of one
Sound Recordings and Ephemeral Recordings, 76 declined to take a position on the
FR 13,026 (Mar. 9, 2011); Digital Performance Right question referred by the CRJs.15 Instead, subject impliedly excludes other
in Sound Recordings and Ephemeral Recordings, 72 subjects—this group urges that this
FR 24,084 (May 1, 2007); Determination of 12 17 U.S.C. 114(g)(2)(B), (C). silence was purposeful, and shows
Reasonable Rates and Terms for the Digital 13 SoundExchange Initial Br. at 2; see also Congress’s intent to withhold from the
Performance of Sound Recordings by Preexisting
Subscription Services, 68 FR 39,837 (July 3, 2003);
SoundExchange Supp. Br. at 2 (‘‘In the proceeding, CRJs the power to adopt different rates
SoundExchange identified, based on the best
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Determination of Reasonable Rates and Terms for and terms for different licensors. They
marketplace evidence, a single royalty rate for all
the Digital Performance of Sound Recordings and commercial licensees utilizing the statutory
Ephemeral Recordings, 67 FR 45,240 (July 8, 2002); license.’’). 16 SoundExchange Initial Br. at 1.
Determination of Reasonable Rates and Terms for 14 George Johnson, an individual sound recording 17 Id. at 2.
the Digital Performance of Sound Recordings, 63 FR owner, represented himself during ratesetting 18 See, e.g., Independent Labels and Unions Initial
25,394 (May 8, 1998). proceedings. See George Johnson Initial Br. at 1; Br. at 24; iHeartMedia Initial Br. at 3; SiriusXM
9 See Referral Order at 2.
NAB/NRBNMLC Response Br. at 1 n.1. Initial Br. at 1; Pandora Initial Br. at 1; NAB/
10 17 U.S.C. 802(f)(1)(B)(i). 15 SoundExchange Initial Br. at 1; SoundExchange NRBNMLC Response Br.at 2; Music Managers
11 Id. Response Br. at 1. Forum Supp. Br. at 1.
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also point to the provision stating that adopt differential rates.25 They point to adopt rates that distinguish among
‘‘[t]he schedule of reasonable rates and the CRJs’ uniform historical practice of licensors.
terms’’ adopted by the CRJs ‘‘shall . . . adopting rates and terms for webcasting In addition, the Major Labels point to
be binding on all copyright owners,’’ 19 that do not distinguish among different provisions of the statute that they claim
and argue that by referring to a single categories of licensors,26 and the fact indicate Congress’s intent to allow the
‘‘schedule’’ that binds ‘‘all’’ copyright that no party to the ratesetting CRJs to establish such differential rates.
owners, Congress anticipated that the proceeding proposed rates that For example, they argue that the willing
CRJs would maintain a single set of rates distinguish among licensors.27 As NAB/ buyer/willing seller standard
and terms for all licensors.20 NRBNMLC puts it, ‘‘no participant had
‘‘necessarily contemplates the
These parties also urge that adopting the opportunity, or any reason, to
possibility of setting different rates for
rates and terms that differentiate among introduce evidence or to respond to any
different kinds of licensors, because it
categories of licensors would undermine such proposal, or to demonstrate the
directs the Judges to set rates and terms
Congress’s desire for an administrable potential administrative difficulties or
that reflect those that would be found in
statutory license. For example, they note consequences of such rates and
that the ownership or distribution rights terms.’’ 28 a hypothetical marketplace
for any given sound recording can characterized by precisely such
Indeed, the Independent Labels and differentiation.’’ 33 The Major Labels
change hands repeatedly, and that it Unions urge that they agreed to be
thus may be difficult to know the urge that the statutory provisions upon
represented by SoundExchange in the which the Independent Labels and
current owner of any particular ratesetting proceedings on the
recording at a given point in time.21 Artists, the Music Managers Forum, and
assumption that SoundExchange would Webcasters rely do not cabin the CRJs’
According to these parties, it is unlikely seek, and the CRJs would adopt, a single
that Congress would have established a generally broad discretion to set rates
set of rates for all licensors.29 The and terms as they deem appropriate in
scheme that made it difficult for a Independent Labels and Unions suggest
licensee to know what rates and terms light of the record evidence.34
that, had the possibility of rates and Furthermore, they dismiss the
apply to individual sound recordings.22 terms that differentiate among licensors
In addition to arguments about the administrability concerns raised by
in fact been before the CRJs,
merits of the referred question, the those groups as irrelevant to the
SoundExchange could not have fairly
Independent Labels and Unions and question asked, arguing that those
represented all of its constituents—who
Webcasters raise procedural concerns of arguments ‘‘are outside the scope of the
disagree about the desirability of
due process under the Constitution and [referral order] and irrelevant to the
differential rates—and the Independent
the Administrative Procedure Act.23 Labels and Unions would have pure question of law posed by the
Specifically, they urge that, even if the participated in the proceedings in their Judges.’’ 35
Register were to conclude that the CRJs own right.30 The Major Labels similarly dismiss
could adopt rates that distinguish the due process arguments raised by the
among categories of licensors, the CRJs C. Position of the Major Labels and Independent Labels and Unions and
could not actually adopt such rates in George Johnson Webcasters as ‘‘irrelevant to answering
this ratesetting proceeding.24 The the question posed’’ by the CRJs, which
Independent Labels and Unions and The Major Labels, supported by
George Johnson, an individual sound they again emphasize to be a ‘‘pure
Webcasters argue that they had question of law.’’ 36 They further argue
inadequate notice that the CRJs might recording owner, contend that the CRJs
are permitted to adopt rates and terms that, even if those issues were relevant,
that distinguish among types or the CRJs are not foreclosed from
19 17 U.S.C. 114(f)(2)(B); 17 U.S.C. 112(e)(4).
20 iHeartMedia categories of licensors.31 Citing adopting a rate structure that
Response Br. at 2–3, iHeartMedia
Supp. Br. at 9–10; see also Independent Labels and precedent from the U.S. Court of distinguishes among licensors by
Unions Initial Br. at 5–8. Appeals for the D.C. Circuit, the Major crediting evidence already in the record.
21 See, e.g., Independent Labels and Unions Initial
Labels argue that the CRJs have ‘‘broad They point in particular to the CRJs’
Br. at 9 (‘‘[T]he entity or person who owns or discretion to effectuate their mandate notice initiating the ratesetting
control rights of any particular recording can be
quite fluid and historically quite hard to keep track under Section 114 to establish rates that proceeding, in which the CRJs stated
of, as ownership and distribution rights change over most clearly represent the rates that they were ‘‘ ‘open to receiving
time.’’); Pandora Initial Br. at 5 (explaining that negotiated by a willing buyer and a evidence, testimony, and argument
‘‘ownership of sound recordings is hardly static’’ willing seller in the marketplace.’’ 32 regarding any reasonable rate
and providing examples of the different ways a
given recording could cross back and forth between They stress that no provision of the structure,’ ’’ requesting participants to
various categories of owners); Music Managers Copyright Act limits the CRJs’ ability to ‘‘address the importance ‘of the
Forum Supp. Br. at 1 (‘‘A recording could be made presence of economic variation among
by an artist, licensed to an independent label, sold 25 See, e.g., NAB/NRBNMLC Response Br. at 1; buyers and sellers.’ ’’ 37 The Major
to a major label and then revert back to the artist.’’).
22 See, e.g., Independent Labels and Unions Initial
Independent Labels and Unions Initial Br. at 16; Labels suggest that these statements
iHeartMedia Supp. Br. at 2, 4–6.
Br. at 9–11; iHeartMedia Initial Br. at 3; Pandora 26 See, e.g., Independent Labels and Unions Initial
provided the parties with sufficient
Initial Br. at 5–6 (‘‘[M]ost if not all services would
Br. at 11–13; iHeartMedia Supp. Br. at 3. notice that the CRJs were willing to
be unable to compute the license fees owed to 27 See, e.g., Independent Labels and Unions Initial consider rates that differentiate among
SoundExchange under a differential-pricing regime,
as they neither possess, nor have ready access to, Br. at 13–14; Pandora Initial Br. at 4; iHeartMedia different licensors. Even so, the Major
all of the information necessary to determine which Response Br. at 9; SiriusXM Initial Br. at 6, 17; Labels do not challenge the assertion
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NAB/NRBNMLC Response Br. at 1.
sound recordings are owned by which licensors, let
28 NAB/NRBNMLC Response Br. at 1; see also
that no party to the ratesetting
alone at any given time, and into which licensor-
category any given record label may fall.’’). Independent Labels and Unions Initial Br. at 13–14.
29 Independent Labels and Unions Initial Br. at 33 Id. at 6.
23 See, e.g., Independent Labels and Unions Initial
Br. at 14–22; NAB/NRBNMLC Response Br. at 1– 14. 34 Id. at 2–8, 12–14.
30 Id. at 14, 23. 35 Id. at 16.
2; SiriusXM Initial Br. at 3–4, 17–18; iHeartMedia
Supp. Br. at 3–7. 31 Major Labels Initial Br. at 2; George Johnson 36 Id. at 15.
24 See, e.g., Independent Labels and Unions Initial Response Br. at 4–5. 37 Major Labels Supp. Br. at 13 (quoting 79 FR
Br. at 22; iHeartMedia Response Br. at 10. 32 Major Labels Initial Br. at 3. 412, 413 (Jan. 3, 2014)) (emphasis in orginal).
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proceeding pressed for rates or terms In referring the question to the material—should be confined to matters
that distinguish among licensors. Register for a written opinion, the actually at issue in a proceeding.
Judges relied on 17 U.S.C. 802(f)(1)(B). Whether a question of substantive law
D. Position of Music Publishers is actually ‘‘presented’’ or ‘‘arises’’ in a
That provision, however, requires the
Regarding Impact on Other Statutory particular case will inevitably depend
CRJs to request a decision from the
Licenses upon the circumstances of that
Register only in a ‘‘case in which a
In response to the Register’s invitation novel material question of substantive proceeding. It will often be readily
to non-participants to offer their views, law concerning an interpretation of apparent that the question is presented,
the National Music Publishers those provisions of [title 17] that are the such as when the question concerns a
Association, Inc. (‘‘NMPA’’) and a group subject of the proceeding is statutory limitation on the CRJs’
comprising the Independent Music presented.’’ 43 Similarly, section authority to consider certain types of
Publishers Forum, the Association of 802(f)(1)(A)(ii)—which the CRJs did not evidence sought to be presented by
Independent Music Publishers, and a cite but also could arguably apply— participants,47 whether a specific term
group of nine independent music gives the CRJs discretion to obtain a proposed by a party for adoption in a
publishers (this group collectively, formal written opinion from the Register settlement is consistent with the Act,48
‘‘IMPF/AIMP’’), filed supplemental of Copyrights concerning ‘‘any material the extent of the CRJs’ continuing
briefs. NMPA did not take a position on questions of substantive law that relate jurisdiction over a prior determination
the merits of the referred question.38 to the construction of provisions of this under the Act,49 or whether a statutory
IMPF/AIMP, however, adopted the title and arise in the course of the license extends to a particular activity
arguments of the Independent Labels proceeding.’’ 44 Thus, by their plain for which a party seeks to have a rate
and Artists, taking the position that terms, these two statutory mechanisms established.50 In each of these examples,
‘‘Section 114 does not permit the requiring a written opinion from the the Register’s answer to the question
Copyright Royalty Judges to award Register may only be invoked by the will presumably have an impact on the
different rates based on the identity or CRJs where a referred question is conduct or outcome of the proceeding.
categorization of the licensors.’’ 39 actually ‘‘presented’’ or ‘‘arise[s]’’ in a Here, by contrast, the Register finds
NMPA and IMPF/AIMP also particular proceeding. that the question whether the CRJs may
addressed the Register’s question adopt rates and terms for webcasting
This reading of the statute is
regarding the implications of the that distinguish among different types
reinforced by its legislative history.
decision here for other statutory or categories of licensors is merely a
Originally, when the CRJ system was
licenses.40 They asked the Register to theoretical one in the context of this
enacted in 2004, the statute allowed the
expressly confine her decision to proceeding. As noted, the CRJs have not
CRJs to refer material questions of
sections 112 and 114, and state that the previously adopted rates and terms for
substantive law to the Register under
decision does not have any impact on webcasting services that distinguish
section 802(f)(1)(A)(ii) when they
the statutory license in section 115 for among licensors. Setting aside the
‘‘concern[ed] an interpretation or
the making and distribution of question whether the CRJs have the
construction of those provisions of [title
phonorecords of nondramatic musical authority to do so, it is clear from the
17] that are the subject of the
works.41 According to NMPA, ‘‘Section submissions in response to the referred
proceeding.’’ 45 On its face, this
115 is a very different license than question that the various participants
Section 114,’’ as it concerns ‘‘an entirely language appeared broadly to permit the
litigated this case on the assumption
different type of royalty, and an entirely referral of questions concerning any
that the outcome would be an
different group of stakeholders.’’ 42 provision that was generally the
undifferentiated rate structure for
‘‘subject’’ of the proceeding (e.g., in the
III. Register’s Determination licensors. To be sure, in initiating the
current proceeding, sections 112(e) and
proceeding, the CRJs broadly invited
Having carefully considered the 114(f)), regardless of whether the
parties to provide evidence and
statutory framework and the parties’ specific question was actually
argument ‘‘regarding any reasonable rate
submissions, the Register of Copyrights implicated by the proceeding. But when
structure’’ or ‘‘the presence of economic
concludes that there is no basis in the Congress made technical corrections to
variations among buyers and sellers.’’ 51
context of the current proceeding on the statute in 2006, it qualified section
which to render an opinion on the 802(f)(1)(A)(ii) to clarify that questions 47 Scope of the Copyright Royalty Judges’
question posed by the CRJs, as the may be referred under this provision Continuing Jurisdiction, 80 FR 58,300 (Sept. 28,
question does not meet the statutory only when they actually ‘‘arise in the 2015).
criteria for referral. course of the proceeding.’’ 46 By adding 48 See., e.g., Scope of the Copyright Royalty
the ‘‘arise’’ requirement, the amendment Judges Authority to Adopt Confidentiality
Requirements upon Copyright Owners within a
38 NMPA Supp. Br. at 2. brought section 802(f)(1)(A)(ii) more Voluntarily Negotiated License Agreement, 78 FR
39 IMPF/AIMP Supp. Br. at 4. closely into alignment with section 47,421 (Aug. 5, 2013) (in section 115 proceeding,
40 See NMPA Supp. Br. at 3–7; IMPF/AIMP Supp. 802(f)(1)(B)(i), which already contained determining that CRJs lacked authority to adopt
Br. at 4–5. Other parties also addressed this the ‘‘presented’’ language. In limiting certain provisions imposing a duty of
question to varying extents. See, e.g., Independent confidentiality upon copyright owners).
Labels and Unions Supp. Br. at 2–3 (arguing that
the referral mechanism in both cases, 49 See, e.g., Scope of the Copyright Royalty
a decision here ‘‘would impact all Copyright Office Congress signaled its intent that Judges’ Continuing Jurisdiction, 80 FR 25,333 (May
rate proceedings’’); SiriusXM Supp. Br. at 5–7 questions sent to the Register for a 4, 2015) (determining that CRJs had the authority
(arguing that any ruling here ‘‘should be strictly written opinion—whether novel and/or to issue a clarifying interpretation of regulations
limited’’ to the Web IV proceeding, discussing adopted in a prior ratesetting determination).
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differences between the licenses); Major Labels 50 Mechanical and Digital Phonorecord Delivery
43 17U.S.C. 802(f)(1)(B)(i) (emphasis added).
Supp. Br. at 5–8 (arguing that the potential Rate Adjustment Proceeding, 71 FR 64,303 (Nov. 1,
ramifications of any decision on other statutory 44 Id.§ 802(f)(1)(A)(ii) (emphasis added). 2006).
licenses are beyond the scope of the referred 45 Copyright Royalty and Distribution Reform Act 51 Determination of Royalty Rates for Digital
question and irrelevant to its resolution, discussing of 2004, Pub. L. 108–419, § 3(a), 118 Stat. 2341, Performance in Sound Recordings and Ephemeral
differences between the licenses). 2346 (2004). Recordings (Web IV), 79 FR 412, 413 (Jan. 3, 2014).
41 NMPA Supp. Br. at 7; IMPF/AIMP Supp. Br. at 46 Copyright Royalty Judges Program Technical In that notice, the CRJs also referred generally to the
4–5. Corrections Act, Pub. L. 109–303, § 3, 120 Stat. concept of ‘‘price discrimination’’ in free market
42 NMPA Supp. Br. at 3. 1478, 1478–79 (2006). transactions, and invited participants to address
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![Federal Register / Vol. 80, No. 236 / Wednesday, December 9, 2015 / Notices 76581
But it is undisputed that no participant administrative difficulties or [a] reasoned decision[] supported by the
in the proceeding in fact proposed rates consequences of such rates and written record before them.’’ 62
or terms that differentiated among terms.’’ 55 In sum, given the posture of the case,
licensors and, accordingly, such a In this regard, the Register further the question referred by the CRJs
structure was not understood to be a observes that the CRJs are statutorily appears to be only a theoretical one in
subject of litigation.52 Moreover, based required to make determinations that that the Register is unable to discern
on the parties’ briefs in response to the are ‘‘supported by the written record’’ 56 how a written decision at this juncture
referred question and the Copyright and based ‘‘on economic, competitive could substantively impact the conduct
Office’s review of the Web IV docket, and programming information presented or outcome of this proceeding.63 Indeed,
there is no indication that the CRJs went by the parties.’’ 57 Significantly, the U.S. the question itself is presented in
beyond their general invitation at the Court of Appeals for the D.C. Circuit has hypothetical terms: it asks the Register
outset of the proceeding to require that twice vacated CRJ determinations that to ‘‘assum[e] a factual basis in the
such differentiation be addressed.53 As relied on theories ‘‘first presented in the evidentiary record’’ for a distinction
a result, no party addressed the question Judges’ determination and not advanced among licensors. As significant as the
of ‘‘segmentation by licensor,’’ 54 and by any participant.’’58 Here—consistent question of a differentiated rate
‘‘no participant had the opportunity, or with their rate proposals—the structure for licensors might be under
any reason, to introduce evidence or to participants’ respective proposed different circumstances, the Register
respond to any such proposal, or to findings of fact and conclusions of law does not believe that the statute
demonstrate the potential submitted at the conclusion of the contemplates the issuance of a written
proceeding uniformly fail to advocate opinion when the inquiry is wholly
‘‘the potential applicability or inapplicability of for statutory rates and terms that theoretical in nature.
price discrimination within the commercial distinguish among licensors.59 The language of the Act makes clear
webcaster segment of the market as well.’’ Id. at
413–14. But the CRJs’ discussion focused on price
Moreover, in briefing the question now that the referral procedure under section
discrimination by sellers—i.e., where sellers charge before the Register, no party has 802(f)(1)(B) is limited to novel material
different prices for identical goods with the price identified any basis upon which the questions of substantive law that are
differences based on the status of the buyers. Id. at CRJs could reasonably rely to adopt a
413. That, of course, is the type of price
actually ‘‘presented.’’ As the Register
discrimination expressly contemplated by the
differentiated rate structure.60 Thus, has concluded that the question set
statute, which requires the CRJs to adopt ‘‘rates and even assuming for the sake of argument forth in the CRJs’ September 11, 2015
terms [that] distinguish among the different types that they possess the legal authority to order is not actually presented in this
of [services] then in operation.’’ 17 U.S.C. 114(f)(2). establish rates that differentiate by proceeding, she leaves the answer for
52 See NAB/NRBNMLC Response Br. at 1;
licensor,61 it seems that under the another day.
SiriusXM Initial Br. at 6; Independent Labels and
Unions Initial Br. at 11–12; see also Direct
current circumstances, the CRJs could November 24, 2015
Testimony of Kurt Hanson Submitted on behalf of not meet their basic obligation ‘‘to make Maria A. Pallante
AccuRadio, LLC, 16–18 (Oct. 6, 2014); Written
Direct Statement of College Broadcasters, Inc. (Oct. 55 See
Register of Copyrights and Director,
NAB/NRBNMLC Response Br. at 1.
7, 2014) (attaching proposed regulations); Letter 56 17
United States Copyright Office
U.S.C. 803(c)(3).
from David Oxenford on behalf of Educational 57 Id. § 114(f)(2)(B). [FR Doc. 2015–30910 Filed 12–8–15; 8:45 am]
Media Foundation to Copyright Royalty Board (Oct. 58 Settling Devotional Claimants v. Copyright
BILLING CODE 1410–30–P
7, 2014) (joining in the rate proposal submitted by
Royalty Bd., 797 F.3d 1106, 1121 (D.C. Cir. 2015)
NRBNMLC); Written Direct Statement of Geo Music
(quoting Intercollegiate Broad. Sys. v. Copyright
Group, 4–5 (Oct. 10, 2014); Written Testimony of Royalty Bd., 574 F.3d 748, 767 (D.C. Cir. 2009)
Michael Papish on behalf of Harvard Radio (internal quotation marks omitted)). OFFICE OF MANAGEMENT AND
Broadcasting Co., Inc. (WHRB) (Oct. 7, 2014); 59 See Proposed Findings and Conclusions of
Written Testimony of Frederick J. Kass on behalf of BUDGET
Intercollegiate Broadcasting Systems, 13 (July 19,
Intercollegiate Broadcasting System (Oct. 7, 2014);
2015); Proposed Findings of Fact of iHeartMedia,
Proposed Rates and Terms of iHeartMedia, Inc. Inc., 207 (June 24, 2015); National Association of
Information Collection; Request for
(Oct. 7, 2014); Written Direct Statement of the Broadcasters’ Proposed Findings of Fact and Public Comments
National Association of Broadcasters, Vol. 1B (Oct. Conclusions of Law (July 19, 2015) (attaching
7, 2014); Written Direct Case of the Corporation for NAB’s Proposed Rates and Terms); The National AGENCY: Executive Office of the
Public Broadcasting, on behalf of National Public Religious Broadcasters Noncommercial Music President, Office of Management and
Radio, Inc., including National Public Radio, Inc.’s License Committee’s Corrected Proposed Findings
Member Stations, American Public Media, Public Budget.
of Fact and Conclusions of Law (June 24, 2015)
Radio International, and Public Radio Exchange (attaching NRBNMLC’s Proposed Noncommercial ACTION: Notice and request for
Broadcasting, 6–8 (Oct. 7, 2014); Written Direct Webcaster Rates and Terms); Pandora Media, Inc.’s comments.
Statement of the National Religious Broadcasters Proposed Findings of Fact and Conclusions of Law,
Noncommercial Music License Committee, 1–2 (June 19, 2015); Sirius XM Radio Inc.’s
Including Educational Media Foundation (Oct. 7,
SUMMARY: In compliance with the
Proposed Findings of Fact, 1 (June 19, 2015);
2014); Proposed Rates and Terms of Pandora Media, Proposed Findings of Fact of SoundExchange, Inc.,
Paperwork Reduction Act of 1995 (44
Inc.; Written Direct Statement of Sirius XM Radio 94–96 (June 19, 2015); Proposed Findings and U.S.C. 3501 et seq.), the Office of
Inc., 1–2 (Oct. 7, 2014); Proposed Rates and Terms Conclusions on behalf of Harvard Radio Management and Budget (OMB) invites
of SoundExchange, Inc. (Oct. 7, 2014). Broadcasting Co., Inc. (WHRB) (June 19, 2015).
53 See Notice of Participants, Commencement of
the general public and Federal agencies
60 Although the Major Labels suggest that the CRJs
Voluntary Negotiation Period, and Case Scheduling to comment on a revision of an
could ‘‘credit evidence supporting a different rate
Order, Docket No. 14–CRB–0001–WR (2016–2020), structure than they have adopted in the past,’’ they approved information collection, Form
1 (Feb. 19, 2014) (asking parties to ‘‘address do not point to any actual argument or evidence in SF–SAC, that is used to report audit
expressly issues relating to categories of licensees,’’ the record that would support such an approach. results, audit findings, and questioned
but omitting any mention of issues relating to See Majors Labels Supp. Br. at 14. In any event, as
categories of licensors). noted, such an approach would appear to run afoul
costs as required by the Single Audit
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54 SoundExchange Initial Br. at 2. In this regard, of controlling precedent. See Settling Devotional Act Amendments of 1996 (31 U.S.C.
it is notable that SoundExchange finds itself unable Claimants, 797 F.3d at 1121 (reversing CRJ 7501 et seq.) and 2 CFR part 200,
to put forth a unified view on the question of determination where theory was ‘‘first presented in ‘‘Uniform Administrative Requirements,
differentiated rates. Presumably SoundExchange the Judges’ determination and not advanced by any
could not have acted as the representative of participant’’).
Cost Principles, and Audit
virtually all of the rightsholders in the proceeding 61 In considering these procedural issues, the
62 Settling Devotional Claimants, 797 F.3d at
if the question of a differentiated rate structure was Register does not mean to suggest any conclusion
actually in contention. See Independent Labels and concerning the CRJs’ legal authority to adopt rates 1121.
Unions Initial Br. at 14. and terms that distinguish among licensors. 63 Referral Order at 2.
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Document Created: 2015-12-14 13:32:18
Document Modified: 2015-12-14 13:32:18
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
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| Section | Notices | |
| Action | Final order. | |
| Contact | Stephen Ruwe, Assistant General Counsel, U.S. Copyright Office, P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707-8350. | |
| FR Citation | 80 FR 76577 |
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