83_FR_23003 83 FR 22907 - Determination of Royalty Rates and Terms for Making Ephemeral Copies of Sound Recordings for Transmission to Business Establishments (Business Establishments III)

83 FR 22907 - Determination of Royalty Rates and Terms for Making Ephemeral Copies of Sound Recordings for Transmission to Business Establishments (Business Establishments III)

LIBRARY OF CONGRESS
Copyright Royalty Board

Federal Register Volume 83, Issue 96 (May 17, 2018)

Page Range22907-22908
FR Document2018-10509

The Copyright Royalty Judges (Judges) publish for comment proposed regulations that set rates and terms for the making of an ephemeral recording of a sound recording by a business establishment service for the period January 1, 2019, through December 31, 2023.

Federal Register, Volume 83 Issue 96 (Thursday, May 17, 2018) 
[Federal Register Volume 83, Number 96 (Thursday, May 17, 2018)]
[Proposed Rules]
[Pages 22907-22908]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-10509]


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LIBRARY OF CONGRESS

Copyright Royalty Board

17 CFR Part 384

[Docket No. 17-CRB-0001-BER (2019-2023)]


Determination of Royalty Rates and Terms for Making Ephemeral 
Copies of Sound Recordings for Transmission to Business Establishments 
(Business Establishments III)

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Proposed rule.

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SUMMARY: The Copyright Royalty Judges (Judges) publish for comment 
proposed regulations that set rates and terms for the making of an 
ephemeral recording of a sound recording by a business establishment 
service for the period January 1, 2019, through December 31, 2023.

DATES: Comments and objections are due no later than June 18, 2018.

ADDRESSES: You may submit comments and objections, identified by docket 
number 17-CRB-0001-BER (2019-2023), by any of the following methods:
    CRB's electronic filing application: Submit comments online in eCRB 
at https://app.crb.gov/.
    U.S. mail: Copyright Royalty Board, P.O. Box 70977, Washington, DC 
20024-0977; or
    Overnight service (only USPS Express Mail is acceptable): Copyright 
Royalty Board, P.O. Box 70977, Washington, DC 20024-0977; or
    Commercial courier: Address package to: Copyright Royalty Board, 
Library of Congress, James Madison Memorial Building, LM-403, 101 
Independence Avenue SE, Washington, DC 20559-6000. Deliver to: 
Congressional Courier Acceptance Site, 2nd Street NE and D Street NE, 
Washington, DC; or
    Hand delivery: Library of Congress, James Madison Memorial 
Building, LM-401, 101 Independence Avenue SE, Washington, DC 20559-
6000.
    Instructions: Unless submitting online, commenters must submit an 
original, two paper copies, and an electronic version on a CD. All 
submissions must include a reference to the CRB and this docket number. 
All submissions will be posted without change to eCRB at https://app.crb.gov/ including any personal information provided.
    Docket: For access to the docket to read submitted background 
documents or comments, go to eCRB, the Copyright Royalty Board's 
electronic filing and case management system, at https://app.crb.gov/ 
and search for docket number 17-CRB-0001-BER (2019-2023).

FOR FURTHER INFORMATION CONTACT: Anita Blaine, CRB Program Specialist, 
by telephone at (202) 707-7658 or email at [email protected].

SUPPLEMENTARY INFORMATION: In 1995, Congress enacted the Digital 
Performance in Sound Recordings Act, Public Law 104-39, which created 
an exclusive right, subject to certain limitations, for copyright 
owners of sound recordings to perform publicly those sound recordings 
by means of certain digital audio transmissions. Among the limitations 
on the performance right was the creation of a statutory license for 
nonexempt, noninteractive digital subscription transmissions. 17 U.S.C. 
114(d).
    The scope of the section 114 statutory license was expanded in 1998 
upon the passage of the Digital Millennium Copyright Act of 1998 
(DMCA), Public Law 105-34, which allows public performance of a sound 
recording when made in accordance with the terms and rates of the 
statutory license, by a preexisting satellite digital audio radio 
service or as part of an eligible nonsubscription transmission. 17 
U.S.C. 114(d).
    The DMCA also created a statutory license for the making of an 
``ephemeral recording'' of a sound recording by certain transmitting 
organizations. 17 U.S.C. 112(e). This license, among other things, 
allows entities that transmit performances of sound recordings to 
business establishments to make an ephemeral recording of a sound 
recording for later transmission, pursuant to the limitations set forth 
in section 114(d)(1)(C)(iv).
    Chapter 8 of the Copyright Act requires the Copyright Royalty 
Judges (Judges) to conduct proceedings every five years to determine 
the royalty rates and terms for ``the activities described in section 
112(e)(1) relating to the limitation on exclusive rights specified by 
section 114(d)(1)(C)(iv).'' 17 U.S.C. 801(b)(1), 804(b)(2). 
Accordingly, the Judges published a notice commencing the current 
proceeding and requesting that interested parties submit petitions to 
participate. 82 FR 143 (Jan. 3, 2017).
    The Judges received Petitions to Participate from Mood Media

[[Page 22908]]

Corporation, Music Choice, David Powell, David Rahn, Rockbot, Inc., 
Sirius XM Radio Inc., and SoundExchange, Inc. The Judges initiated the 
three-month negotiation period and directed the participants to submit 
written direct statements no later than May 14, 2018. See 17 U.S.C. 
803(b)(3).
    On May 4, 2018, the Judges received a Motion to Adopt Settlement 
stating that all participants \1\ had reached a settlement obviating 
the need for written direct statements or a hearing.
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    \1\ Despite filing a Petition to Participate, David Powell did 
not participate in the negotiations and did not join in the agreed 
settlement. The Judges make no finding with regard to Mr. Powell's 
eligibility to participate in this proceeding. Mr. Powell may, of 
course, respond to this notice. To the extent Mr. Powell has an 
interest in the business establishment services license, he will be 
bound by the royalty rates and terms the Judges adopt ultimately.
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    Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to 
adopt royalty rates and terms negotiated by ``some or all of the 
participants in a proceeding at any time during the proceeding'' 
provided they are submitted to the Judges for approval. The Judges must 
provide ``an opportunity to comment on the agreement'' to both 
participants and non-participants in the rate proceeding who ``would be 
bound by the terms, rates, or other determination set by any agreement 
. . .'' 17 U.S.C. 801(b)(7)(A)(i). Participants in the proceeding may 
also ``object to [the agreement's] adoption as a basis for statutory 
terms and rates.'' Id.
    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).
    Royalty rates and terms adopted pursuant to section 801(b)(7)(A) 
are binding on all copyright owners of sound recordings and all 
business establishment services making an ephemeral recording of a 
sound recording for the period January 1, 2019, through December 31, 
2023.
    The public may comment and object to any or all of the proposed 
regulations contained in this notice. Comments and objections must be 
submitted no later than June 18, 2018.

List of Subjects in 37 CFR Part 384

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

Proposed Regulations

    For the reasons set forth in the preamble, the Copyright Royalty 
Judges propose to amend part 384 of chapter III of title 37 of the Code 
of Federal Regulations as follows:

PART 384--RATES AND TERMS FOR THE MAKING OF EPHEMERAL RECORDINGS BY 
BUSINESS ESTABLISHMENT SERVICES

0
1. The authority citation for part 384 continues to read as follows:

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


Sec.  384.1   [Amended]

0
2. In Sec.  384.1 amend paragraph (a) by removing ``January 1, 2014, 
through December 31, 2018'' and adding ``January 1, 2019, through 
December 31, 2023'' in its place.
0
3. Amend Sec.  384.3 by revising paragraph (a) to read as follows and 
in paragraph (b), removing ``$10,000'' and adding ``$20,000.''


Sec.  384.3   Royalty fees for ephemeral recordings.

    (a) Basic royalty rate. (1) For the making of any number of 
Ephemeral Recordings in the operation of a Business Establishment 
Service, a Licensee shall pay a royalty equal to the following 
percentages of such Licensee's ``Gross Proceeds'' derived from the use 
in such service of musical programs that are attributable to 
copyrighted recordings:

------------------------------------------------------------------------
                          Year                               Rate (%)
------------------------------------------------------------------------
2019....................................................            12.5
2020....................................................           12.75
2021....................................................            13.0
2022....................................................           13.25
2023....................................................            13.5
------------------------------------------------------------------------

    (2) ``Gross Proceeds'' as used in this section means all fees and 
payments, including those made in kind, received from any source 
before, during or after the License Period that are derived from the 
use of copyrighted sound recordings during the License Period pursuant 
to 17 U.S.C. 112(e) for the sole purpose of facilitating a transmission 
to the public of a performance of a sound recording under the 
limitation on exclusive rights specified in 17 U.S.C. 114(d)(1)(C)(iv). 
The attribution of Gross Proceeds to copyrighted recordings may be made 
on the basis of:
    (i) For classical programs, the proportion that the playing time of 
copyrighted classical recordings bears to the total playing time of all 
classical recordings in the program; and
    (ii) For all other programs, the proportion that the number of 
copyrighted recordings bears to the total number of all recordings in 
the program.
* * * * *


Sec.  384.5   [Amended]

0
4. In Sec.  384.5 amend paragraph (d)(4) by removing the second comma 
before the word ``subject''.

    Dated: May 11, 2018.
Suzanne M. Barnett,
Chief Copyright Royalty Judge.
[FR Doc. 2018-10509 Filed 5-16-18; 8:45 am]
 BILLING CODE 1410-72-P

Federal Register / Vol. 83, No. 96 / Thursday, May 17, 2018 / Proposed Rules 22907 section 407 of title 17 of the United Dated: May 11, 2018. change to eCRB at https://app.crb.gov/ States Code. Sarang V. Damle, including any personal information * * * * * General Counsel and Associate Register of provided. Copyrights. Docket: For access to the docket to (n) The scope of a group registration. read submitted background documents [FR Doc. 2018–10420 Filed 5–16–18; 8:45 am] * * * When the Office issues a group or comments, go to eCRB, the Copyright BILLING CODE 1410–30–P registration under paragraph (f) of this Royalty Board’s electronic filing and section, the registration covers each case management system, at https:// issue in the group and each issue is LIBRARY OF CONGRESS app.crb.gov/ and search for docket registered as a separate work or a number 17–CRB–0001–BER (2019– separate collective work (as the case Copyright Royalty Board 2023). may be). * * * FOR FURTHER INFORMATION CONTACT: ■ 6. Amend § 202.19 by adding 17 CFR Part 384 Anita Blaine, CRB Program Specialist, paragraph (d)(2)(x) to read as follows: [Docket No. 17–CRB–0001–BER (2019– by telephone at (202) 707–7658 or email 2023)] at crb@loc.gov. § 202.19 Deposit of published copies or SUPPLEMENTARY INFORMATION: In 1995, phonorecords for the Library of Congress. Determination of Royalty Rates and Congress enacted the Digital * * * * * Terms for Making Ephemeral Copies of Performance in Sound Recordings Act, Sound Recordings for Transmission to Public Law 104–39, which created an (d) * * * Business Establishments (Business exclusive right, subject to certain (2) * * * Establishments III) limitations, for copyright owners of (x) In the case of serials (as defined in AGENCY: Copyright Royalty Board, sound recordings to perform publicly § 202.3(b)(1)(v), but excluding Library of Congress. those sound recordings by means of newspapers) published in the United ACTION: Proposed rule. certain digital audio transmissions. States in a physical format, or in both Among the limitations on the a physical and an electronic format, the SUMMARY: The Copyright Royalty Judges performance right was the creation of a copyright owner or the owner of the (Judges) publish for comment proposed statutory license for nonexempt, exclusive right of publication must regulations that set rates and terms for noninteractive digital subscription provide the Library of Congress with the making of an ephemeral recording of transmissions. 17 U.S.C. 114(d). two complimentary subscriptions to the a sound recording by a business The scope of the section 114 statutory serial, unless the Copyright Acquisitions establishment service for the period license was expanded in 1998 upon the Division informs the owner that the January 1, 2019, through December 31, passage of the Digital Millennium serial is not needed for the Library’s 2023. Copyright Act of 1998 (DMCA), Public collections. Subscription copies must be DATES: Comments and objections are Law 105–34, which allows public physically mailed to the Copyright due no later than June 18, 2018. performance of a sound recording when Office, at the address for mandatory ADDRESSES: You may submit comments made in accordance with the terms and deposit copies specified in § 201.1(c) of and objections, identified by docket rates of the statutory license, by a this chapter, promptly after the number 17–CRB–0001–BER (2019– preexisting satellite digital audio radio 2023), by any of the following methods: service or as part of an eligible publication of each issue, and the CRB’s electronic filing application: nonsubscription transmission. 17 U.S.C. subscription(s) must be maintained on Submit comments online in eCRB at 114(d). an ongoing basis. The owner may cancel The DMCA also created a statutory the subscription(s) if the serial is no https://app.crb.gov/. U.S. mail: Copyright Royalty Board, license for the making of an ‘‘ephemeral longer published by the owner, if the P.O. Box 70977, Washington, DC 20024– recording’’ of a sound recording by serial is no longer published in the 0977; or certain transmitting organizations. 17 United States in a physical format, or if Overnight service (only USPS Express U.S.C. 112(e). This license, among other the Copyright Acquisitions Division Mail is acceptable): Copyright Royalty things, allows entities that transmit informs the owner that the serial is no Board, P.O. Box 70977, Washington, DC performances of sound recordings to longer needed for the Library’s 20024–0977; or business establishments to make an collections. In addition, prior to Commercial courier: Address package ephemeral recording of a sound commencing the subscriptions, the to: Copyright Royalty Board, Library of recording for later transmission, owner must send a letter to the Congress, James Madison Memorial pursuant to the limitations set forth in Copyright Acquisitions Division at the Building, LM–403, 101 Independence section 114(d)(1)(C)(iv). address specified in § 201.1(b) of this Avenue SE, Washington, DC 20559– Chapter 8 of the Copyright Act chapter confirming that the owner will 6000. Deliver to: Congressional Courier requires the Copyright Royalty Judges provide the requested number of Acceptance Site, 2nd Street NE and D (Judges) to conduct proceedings every subscriptions for the Library of Street NE, Washington, DC; or five years to determine the royalty rates Congress. The letter must include the Hand delivery: Library of Congress, and terms for ‘‘the activities described name of the publisher, the title of the James Madison Memorial Building, LM– in section 112(e)(1) relating to the newsletter, the International Standard 401, 101 Independence Avenue SE, limitation on exclusive rights specified amozie on DSK3GDR082PROD with PROPOSALS Serial Number (‘‘ISSN’’) that has been Washington, DC 20559–6000. by section 114(d)(1)(C)(iv).’’ 17 U.S.C. Instructions: Unless submitting 801(b)(1), 804(b)(2). Accordingly, the assigned to the newsletter (if any), and online, commenters must submit an Judges published a notice commencing the issue date and the numerical or original, two paper copies, and an the current proceeding and requesting chronological designations that appear electronic version on a CD. All that interested parties submit petitions on the first issue that will be provided submissions must include a reference to to participate. 82 FR 143 (Jan. 3, 2017). under the subscriptions. the CRB and this docket number. All The Judges received Petitions to submissions will be posted without Participate from Mood Media VerDate Sep<11>2014 17:48 May 16, 2018 Jkt 244001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\17MYP1.SGM 17MYP1

22908 Federal Register / Vol. 83, No. 96 / Thursday, May 17, 2018 / Proposed Rules Corporation, Music Choice, David List of Subjects in 37 CFR Part 384 (i) For classical programs, the Powell, David Rahn, Rockbot, Inc., proportion that the playing time of Copyright, Digital audio Sirius XM Radio Inc., and copyrighted classical recordings bears to transmissions, Ephemeral recordings, SoundExchange, Inc. The Judges the total playing time of all classical Performance right, Sound recordings. initiated the three-month negotiation recordings in the program; and period and directed the participants to Proposed Regulations (ii) For all other programs, the submit written direct statements no later proportion that the number of For the reasons set forth in the than May 14, 2018. See 17 U.S.C. copyrighted recordings bears to the total preamble, the Copyright Royalty Judges 803(b)(3). number of all recordings in the program. propose to amend part 384 of chapter III On May 4, 2018, the Judges received of title 37 of the Code of Federal * * * * * a Motion to Adopt Settlement stating Regulations as follows: § 384.5 [Amended] that all participants 1 had reached a ■ 4. In § 384.5 amend paragraph (d)(4) settlement obviating the need for PART 384—RATES AND TERMS FOR THE MAKING OF EPHEMERAL by removing the second comma before written direct statements or a hearing. the word ‘‘subject’’. RECORDINGS BY BUSINESS Section 801(b)(7)(A) of the Copyright ESTABLISHMENT SERVICES Dated: May 11, 2018. Act authorizes the Judges to adopt Suzanne M. Barnett, royalty rates and terms negotiated by ■ 1. The authority citation for part 384 Chief Copyright Royalty Judge. ‘‘some or all of the participants in a continues to read as follows: [FR Doc. 2018–10509 Filed 5–16–18; 8:45 am] proceeding at any time during the Authority: 17 U.S.C. 112(e), 801(b)(1). BILLING CODE 1410–72–P proceeding’’ provided they are submitted to the Judges for approval. § 384.1 [Amended] The Judges must provide ‘‘an ■ 2. In § 384.1 amend paragraph (a) by ENVIRONMENTAL PROTECTION opportunity to comment on the removing ‘‘January 1, 2014, through AGENCY agreement’’ to both participants and December 31, 2018’’ and adding non-participants in the rate proceeding ‘‘January 1, 2019, through December 31, 40 CFR Part 52 who ‘‘would be bound by the terms, 2023’’ in its place. [EPA–R09–OAR–2018–0272; FRL–9978– rates, or other determination set by any ■ 3. Amend § 384.3 by revising 17—Region 9] agreement . . .’’ 17 U.S.C. paragraph (a) to read as follows and in 801(b)(7)(A)(i). Participants in the paragraph (b), removing ‘‘$10,000’’ and Air Plan Approval; California; San proceeding may also ‘‘object to [the adding ‘‘$20,000.’’ Joaquin Valley Unified Air Pollution agreement’s] adoption as a basis for Control District; Reasonably Available § 384.3 Royalty fees for ephemeral statutory terms and rates.’’ Id. recordings. Control Technology Demonstration The Judges ‘‘may decline to adopt the (a) Basic royalty rate. (1) For the AGENCY: Environmental Protection agreement as a basis for statutory terms making of any number of Ephemeral Agency (EPA). and rates for participants that are not Recordings in the operation of a ACTION: Proposed rule. parties to the agreement,’’ only ‘‘ if any Business Establishment Service, a participant [to the proceeding] objects to Licensee shall pay a royalty equal to the SUMMARY: The Environmental Protection the agreement and the [Judges] following percentages of such Licensee’s Agency (EPA) is proposing to approve conclude, based on the record before ‘‘Gross Proceeds’’ derived from the use revisions to the San Joaquin Valley them if one exists, that the agreement in such service of musical programs that Unified Air Pollution Control District does not provide a reasonable basis for are attributable to copyrighted (SJVUAPCD or ‘‘District’’) portion of the setting statutory terms or rates.’’ 17 recordings: California State Implementation Plan U.S.C. 801(b)(7)(A)(ii). (SIP), which applies to the San Joaquin Royalty rates and terms adopted Year Rate Valley of California (‘‘Valley’’). These (%) revisions concern the District’s pursuant to section 801(b)(7)(A) are binding on all copyright owners of demonstration regarding Reasonably 2019 ...................................... 12.5 sound recordings and all business 2020 ...................................... 12.75 Available Control Technology (RACT) establishment services making an 2021 ...................................... 13.0 requirements for the 2008 8-hour ozone ephemeral recording of a sound 2022 ...................................... 13.25 National Ambient Air Quality Standard recording for the period January 1, 2019, 2023 ...................................... 13.5 (NAAQS). We are also proposing to approve a public draft version of through December 31, 2023. (2) ‘‘Gross Proceeds’’ as used in this SJVUAPCD’s supplement to its 2014 The public may comment and object section means all fees and payments, RACT SIP demonstration, which to any or all of the proposed regulations including those made in kind, received contains relevant permit conditions for contained in this notice. Comments and from any source before, during or after J.R. Simplot’s Nitric Acid plant in Helm, objections must be submitted no later the License Period that are derived from California (CA) and negative than June 18, 2018. the use of copyrighted sound recordings declarations where the District during the License Period pursuant to concludes it has no sources subject to amozie on DSK3GDR082PROD with PROPOSALS 1 Despite filing a Petition to Participate, David 17 U.S.C. 112(e) for the sole purpose of certain Control Techniques Guidelines Powell did not participate in the negotiations and (CTG) documents. We are proposing did not join in the agreed settlement. The Judges facilitating a transmission to the public make no finding with regard to Mr. Powell’s of a performance of a sound recording action on local SIP revisions under the eligibility to participate in this proceeding. Mr. under the limitation on exclusive rights Clean Air Act (CAA or ‘‘the Act’’). We Powell may, of course, respond to this notice. To specified in 17 U.S.C. 114(d)(1)(C)(iv). are taking comments on this proposal the extent Mr. Powell has an interest in the business and plan to follow with a final action. establishment services license, he will be bound by The attribution of Gross Proceeds to the royalty rates and terms the Judges adopt copyrighted recordings may be made on DATES: Any comments must arrive by ultimately. the basis of: June 18, 2018. VerDate Sep<11>2014 17:48 May 16, 2018 Jkt 244001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 E:\FR\FM\17MYP1.SGM 17MYP1


Document Created: 2018-05-17 00:50:39
Document Modified: 2018-05-17 00:50:39
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments and objections are due no later than June 18, 2018.
ContactAnita Blaine, CRB Program Specialist, by telephone at (202) 707-7658 or email at [email protected]
FR Citation83 FR 22907 
CFR AssociatedCopyright; Digital Audio Transmissions; Ephemeral Recordings; Performance Right and Sound Recordings
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