[Federal Register Volume 62, Number 191 (Thursday, October 2, 1997)]
[Proposed Rules]
[Pages 51619-51621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26062]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 253

[Docket No. 96-6 CARP NCBRA]


Noncommercial Educational Broadcasting Compulsory License

AGENCY: Copyright Office, Library of Congress.

ACTION: Request for comments.

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SUMMARY: The Copyright Office of the Library of Congress is submitting 
for public comment certain settlement proposals for the adjustment of 
the royalty rates for the noncommercial educational broadcasting 
compulsory license.

DATES: Comments and notices of intent to participate are due by 
November 3, 1997.

ADDRESSES: If sent by mail, an original and five copies of comments, 
and Notices of Intent to Participate, should be addressed to: Copyright 
Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, 
Washington, D.C. 20024. If hand delivered, an original and five copies 
of comments, and Notices of Intent to Participate, should be brought 
to: Office of the Copyright General Counsel, James Madison Memorial 
Building, Room LM-403, First and Independence Avenue, S.E., Washington, 
D.C. 20559-6000.

FOR FURTHER INFORMATION CONTACT: William J. Roberts, Senior Attorney, 
or Tanya Sandros, Attorney Advisor, Copyright Arbitration Royalty Panel 
(CARP), P.O. Box 70977, Southwest Station, Washington, D.C. 20024. 
Telephone (202) 707-8380. Telfax: (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Background

    Section 118 of the Copyright Act, 17 U.S.C., creates a compulsory 
license for the use of certain copyrighted works in connection with 
noncommercial broadcasting. Terms and rates for this compulsory 
license, applicable to parties who are not subject to privately 
negotiated licenses, are published in 37 CFR part 253 and are subject 
to adjustment at five year intervals. The last adjustment of the terms 
and rates for the section 118 license occurred in 1992, making 1997 a 
window year for the adjustment of these terms and rates.
    On October 18, 1996, the Library published a notice in the Federal 
Register requesting comments from interested parties as to the need for 
a CARP proceeding to adjust the section 118 terms and rates. 61 FR 
54459 (Oct. 18, 1996). After a protracted negotiation period, certain 
parties identified the need for a CARP proceeding, and the Library has 
announced the precontroversy discovery period and the initiation of the 
CARP. Order in Docket No. 96-6 CARP NCBRA (July 30, 1997).
    Most of the rates and terms adopted for the section 118 license are 
for the use of works of copyright owners represented by one or more of 
the performing rights societies or organizations. Although not all 
copyright owners belong to such organizations, their works are 
nonetheless subject to usage under the section 118 license. It is, 
therefore, necessary to adopt royalty terms and rates for those 
``unaffiliated'' copyright owners whose identity is not known, and 
whose interests are not currently represented in this proceeding.

Adjusting the Terms and Rates for Unaffiliated Copyright Owners

    Section 251.63 of 37 CFR prescribes the procedure for adopting 
terms and rates for unaffiliated copyright owners under section 118. 
Because the identity of such copyright owners is not known, copyright 
users are unable to negotiate with them to reach private agreements; 
and their interests would not be represented if the matter were 
submitted to a CARP. Section 251.63 of the rules, therefore, allows 
copyright users to submit their proposals for adjustment of the terms 
and rates for the section 118 license to the Librarian of Congress. The 
Librarian then submits the proposals to a public notice and comment 
proceeding, whereby unaffiliated copyright owners who would be affected 
by the proposals are given the opportunity to challenge them. The 
unaffiliated copyright owners must submit their challenges by a date 
certain and must be willing to participate in the CARP proceeding 
adjusting the section 118 terms and rates. If no challenges are 
received, or if challenges are received by unaffiliated copyright 
owners who will not participate in a CARP proceeding, then the 
Librarian will adopt the proposals of the copyright users.
    Accordingly, unaffiliated copyright owners must submit their 
written challenges to the Librarian of Congress no later than close of 
business on November 3, 1997. The content of the written challenge 
should describe the unaffiliated copyright owner's interest in this 
proceeding, which proposal described below that the owner finds 
objectionable, and the reasons for the challenge.
    In addition, unaffiliated copyright owners submitting written 
challenges must also submit accompanying notices of intent to 
participate. Failure to submit a notice of intent to participate will 
preclude an unaffiliated copyright owner from participating in this 
proceeding and consideration of his or her written challenge. Those 
unaffiliated copyright owners who do submit notices of intent to 
participate will be contacted by the Librarian as to when their written 
direct cases are due. It is the intention of the Librarian to include 
such owners in the CARP proceeding that shall commence on December 31, 
1997.

Proposals for Adjustment of Terms and Rates

    Three parties, representing certain copyright users of works in 
connection with noncommercial broadcasting, filed proposals for 
adjustment of terms and rates.

1. National Religious Broadcasters Music Licensing Committee

    The National Religious Broadcasters Music Licensing Committee 
(``NRBMLC'') proposes a rate for the public performance of copyrighted 
published nondramatic musical compositions not in the repertory of the 
American Society of Composers, Authors and Publishers (ASCAP), 
Broadcast Music, Inc. (BMI), or SESAC by radio stations not licensed to 
colleges, universities, or other nonprofit educational institutions and 
not affiliated with National Public Radio. The royalty rate for such 
performances from 1993-1997 is $1 per performance, and is established 
in 37 CFR 253.6(c)(4). NRBMLC proposes that the rate remain the same 
for the period 1998-2002.

[[Page 51620]]

    In addition, NRBMLC proposes a rate for the recording of 
nondramatic performances and displays of musical works on and for the 
radio and television programs of public broadcasting entities, and for 
the making, reproduction, and distribution of copies and phonorecords 
of public broadcasting programs containing such nondramatic 
performances and displays of musical works solely for the purpose of 
transmission by public broadcasting entities.
    The rates for such uses, other than in a National Public Radio 
produced radio program, for the 1993-1997 period are:

Feature composition................................................$.70
Feature (concert) (per half hour).................................$1.45
Background composition.............................................$.35

    These rates are codified at 37 CFR 253.7(b)(4). NRBMLC proposes 
that the rates for the 1998-2002 period remain the same.

2. Public Broadcasting Service and National Public Radio

    The Public Broadcasting Service (PBS) and National Public Radio 
(NPR) submitted a joint proposal to adjust the terms and rates for 
copyrighted works of unaffiliated copyright owners used by them for the 
1998-2002 period. For adjustment of rates, PBS and NPR propose a one-
time upward adjustment to the relevant rates in the amount of 6.2 
percent. This one-time adjustment equals the average of the increases 
that would result from annual 2 percent increases over a five-year 
period.
    With respect to terms, PBS and NPR propose that the current terms 
for the use of unaffiliated copyright owners' works by PBS and NPR 
remain unchanged, except to clarify that the proposed rates would not 
apply to works the rights to which are licensed by ASCAP, BMI, SESAC, 
The Harry Fox Agency, or the National Music Publishers Association. 
Unaffiliated copyright owners should consult 37 CFR part 253 for a 
description of the current terms.
    The proposed changes in rates of PBS and NPR are as follows:
    (a) Section 253.4 of the rules establishes the rates for 
performance of nondramatic musical compositions by PBS, NPR and other 
public broadcasting entities engaged in the activities set forth in 17 
U.S.C. 118(d). PBS and NPR propose that the changes in these rates for 
the 1998-2002 period be as follows:
    (i) For the performance of such a work in a feature presentation of 
PBS, $211.53, up from the current rate of $199.18;
    (ii) For the performance of such a work as background or theme 
music in a PBS program, $53.59, up from the current rate of $50.46;
    (iii) For the performance of such work in a feature presentation of 
a station of PBS, $18.08, up from the current rate of $17.02;
    (iv) For the performance of such a work as background or theme 
music in a program of a station of PBS, $3.81, up from the current rate 
of $3.59;
    (v) For the performance of such a work in a feature presentation of 
NPR, $21.44, up from the current rate of $20.19;
    (vi) For the performance of such a work as background or theme 
music in an NPR program, $5.20, up from the current rate of $4.90;
    (vii) For the performance of such a work in a feature presentation 
of a station of NPR, $1.52, up from the current rate of $1.43; and
    (viii) For the performance of such a work as background or theme 
music in a program of a station of NPR, $.54, up from the current rate 
of $.51.
    (b) Section 253.7 of the rules establishes the rates for the 
recording of nondramatic performances and displays of musical works on 
and for the radio and television programs of public broadcasting 
entities, and for the making, reproduction, and distribution of copies 
and phonorecords of public broadcasting programs containing such 
nondramatic performances and displays of musical works solely for the 
purpose of transmission by public broadcasting entities. PBS and NPR 
propose that the changes in these rates be as follows:
    (i) For the use of a musical work in a PBS-distributed program, , 
the royalty fees for the 1998-2002 period would be calculated by 
multiplying the following per composition rates by the number of 
different compositions in that PBS-distributed program:

Feature--$106.04, up from the current rate of $99.85
Concert feature (per minute)--$31.84, up from the current rate of 
$29.98
Background--$53.59, up from the current rate of $50.46
Theme
Single program or first series program--$53.59, up from the current 
rate of $50.46
Other series program--$21.75, up from the current rate of $20.48

    (ii) For such uses other than in a PBS-distributed television 
program, the royalty fee for the 1998-2002 period would be calculated 
by multiplying the following per-composition rates by the number of 
different compositions in that program:

Feature--$8.76, up from the current rate of $8.25
Concert feature (per minute)--$2.30, up from the current rate of $2.17
Background--$3.81, up from the current rate of $3.59
Theme
Single program or first series program--$3.81, up from the current rate 
of $3.59
Other series program--$1.52, up from the current rate of $1.43

    (iii) For uses in a musical work in a NPR program, the royalty fee 
for the 1998-2002 period would be calculated by multiplying the 
following per-composition rates by the number of different compositions 
in any NPR program distributed by NPR:

Feature--$11.48, up from the current rate of $10.81
Concert feature (per half hour)--$16.85, up from the current rate of 
$15.87
Background--$5.75, up from the current rate of $5.41
Theme
Single program or first series program--$5.75, up from the current rate 
of $5.41
Other series program--$2.29, up from the current rate of $2.16
    (iv) For such uses other than in a NPR-produced radio program:

Feature--$.74, up from the current rate of $.70
Feature (concert) (per half hour)--$1.54, up from the current rate of 
$1.45
Background--$.37, up from the current rate of $.35

    (c) Section 253.8 of the rules establishes rates and terms for the 
use of pictorial, graphic, and sculptural works by public broadcasting 
entities. The rates and terms include the making of reproductions 
described in 17 U.S.C. 118(d)(3). PBS and NPR propose that the change 
in rates for the 1998-2002 period be as follows:
    (i) For such uses in a PBS-distributed program:

Featured display--$64.78, up from the current rate of $61.00
Background and montage display--$31.59, up from the current rate of 
$29.75
Program identification or thematic use.--$127.71, up from the current 
rate of $120.25
Display of an art reproduction--$41.95, up from the current rate of 
$39.50

    (ii) For such uses in other than PBS-distributed programs:

Featured display--$41.95, up from the current rate of $39.50
Background and montage display--$21.51, up from the current rate of 
$20.25

[[Page 51621]]

Program identification or thematic use--$85.76, up from the current 
rate of $80.75
Display of an art reproduction--$21.51, up from the current rate of 
$20.25

Rate Adjustment for Section 253.7(b)(4)

    Review of the rate proposals of NRBMLC and PBS and NPR reveals that 
there is a conflict between their proposed rates for the recording of 
nondramatic performances and displays of musical works on and for the 
radio and television programs of public broadcasting entities, other 
than in a National Public Radio produced program, and for the making, 
reproduction, and distribution of copies and phonorecords of public 
broadcasting programs containing such nondramatic performances and 
displays of musical works solely for the purpose of transmission by 
public broadcasting entities. 37 CFR 253.7(b)(4). NRBMLC proposes that 
the rates remain the same as the current rates, while PBS and NPR 
propose an increase of 6.2 percent. To resolve this conflict, the 
Librarian is announcing that he will adopt the proposal of PBS and NPR, 
described above, unless NRBMLC or some other party challenges the 
proposal, in which case the matter will be resolved by the CARP in this 
proceeding.

Marilyn J. Kretsinger,
Assistant General Counsel.
[FR Doc. 97-26062 Filed 10-1-97; 8:45 am]
BILLING CODE 1410-33-P