[Federal Register Volume 67, Number 242 (Tuesday, December 17, 2002)]
[Rules and Regulations]
[Pages 77170-77173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31620]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 253

[Docket No. 2002-4 CARP NCBRA]


Noncommercial Educational Broadcasting Compulsory License

AGENCY: Copyright Office, Library of Congress.

ACTION: Final rule.

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SUMMARY: The Copyright Office of the Library of Congress is publishing 
final regulations adjusting the royalty rates and terms under the 
Copyright Act for the noncommercial educational broadcasting compulsory 
license for the period 2003 through 2007.

EFFECTIVE DATE: January 1, 2003.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or

[[Page 77171]]

William J. Roberts, Jr., Senior Attorney, Copyright Arbitration Royalty 
Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024. 
Telephone (202) 707-8380. Telefax: (202) 252-3423

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. This is a window year for such an adjustment.
    After extended negotiations initiated by the Library of Congress, 
the parties in this docket submitted proposals for adjustment of the 
rates and terms contained in part 253. Section 251.63(b) of the 
Copyright Arbitration Royalty Panel (''CARP'') rules, 37 CFR, provides 
that terms and rates for a statutory license may be adopted by the 
Librarian of Congress in lieu of a CARP proceeding if all parties reach 
a settlement, and the Librarian publishes the negotiated terms and 
rates in the Federal Register for notice and comment. If no one objects 
to the proposed rates and terms and submits a Notice of Intent to 
Participate in a CARP proceeding, then the Librarian may adopt the 
negotiated rates and terms as final.
    On October 30, 2002, the Library published a Notice of Proposed 
Rulemaking (``NPRM'') setting forth the rates and terms negotiated by 
the parties in this proceeding for the period 2003-2007. 67 FR 66090 
(October 30, 2002). The NPRM specified that objecting parties must 
submit their objections and Notices of Intent to Participate by 
December 2, 2002. No filings were received. Consequently, pursuant to 
37 CFR 252.63(b), the Librarian moves to final rules.

Effective Date

    The final section 118 royalty terms and rates are effective on 
January 1, 2003. January 1, 2003, is less than 30 days from publication 
of the notice of the final rule. Section 553 of the Administrative 
Procedure Act, 5 U.S.C., provides that final rules shall not be 
effective less than 30 days from their publication unless, inter alia, 
the agency finds good cause, a description of which must be published 
with the rule. 5 U.S.C. 553(d)(3). Good cause exists in this case.
    The final rules are the product of negotiations between 
representatives of copyright owners and copyright users. All owners and 
users affected by these rates have already had the opportunity to 
participate in the process, and any additional interested parties were 
afforded further opportunity to participate when the Copyright Office 
published them as proposed rules in the Federal Register. 67 FR 66090 
(October 30, 2002). The copyright owners and users who negotiated the 
final rules have the expectation that they will become effective on 
January 1, 2003. Even those parties affected by the rules who did not 
participate in their negotiation are aware that 2002 is a window year 
for new rates and terms for the 2003-2007 period, beginning on January 
1, 2003. See 67 FR at 66092.
    The negotiations that produced these final rules took a 
considerable amount of time to orchestrate and did not result in final 
agreements until late this year. In addition, some of the rates are 
dependent upon changes in the Consumer Price Index, information which 
was not known until the end of November. This resulted in a delay in 
publishing the final rules until now. Because of these circumstances, 
and because no parties affected by these rules are prejudiced, good 
cause exists that they become effective less than 30 days from date of 
publication of this Notice.

List of Subjects in 37 CFR Part 253

    Copyright, Music, Radio, Television, Rates.

Final Regulations

    For the reasons set out in the preamble, the Library of Congress 
amends part 253 of 37 CFR as follows:

PART 253--USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH 
NONCOMMERCIAL EDUCATIONAL BROADCASTING

    1. The authority citation for part 253 continues to read as 
follows:

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


    2. Section 253.1 is amended by removing the phrase ``January 1, 
1998 and ending on December 31, 2002'' and adding ``January 1, 2003 and 
ending on December 31, 2007'' in its place.


Sec.  253.3  [Removed and Reserved]

    3. Section 253.3 is removed and reserved.

    4. Section 253.4 is amended as follows:
    a. In the introductory text, by removing ``, or compositions in the 
repertories of ASCAP, BMI, or SESAC which are licensed on terms and 
conditions established by a duly empowered Copyright Arbitration 
Royalty Panel pursuant to the procedures set forth in subchapter B of 
37 CFR, part 251.'';
    b. By revising paragraph (a);
    c. in paragraph (c), by removing the phrase ``January 1, 1998, to 
December 31, 2002'' and adding ``January 1, 2003, to December 31, 
2007'' in its place; and
    d. in paragraph (d), by removing ``three'' and adding ``four'' in 
its place.
    The revisions to Sec.  253.4 read as follows:


Sec.  253.4  Performance of musical compositions by PBS, NPR and other 
public broadcasting entities engaged in the activities set forth in 17 
U.S.C. 118(d).

* * * * *

(a) Determination of royalty rate. (1) For performance of such work in a
 feature presentation of PBS:
    2003-2007.................................................  $224.22
(2) For performance of such a work as background or theme music in a PBS
 program:
    2003-2007.................................................    $56.81
(3) For performance of such a work in a feature presentation of a
 station of PBS:
    2003-2007.................................................   $19.16
(4) For performance of such a work as background or theme music in a
 program of a station of PBS:
    2003-2007.................................................    $4.04
(5) For the performance of such a work in a feature presentation of NPR:
 
    2003-2007.................................................   $22.73
(6) For the performance of such a work as background or theme music in
 an NPR program:
    2003-2007.................................................    $5.51
(7) For the performance of such a work in a feature presentation of a
 station of NPR:
    2003-2007.................................................    $1.61
(8) For the performance of such a work as background or theme music in a
 program of a station of NPR:
    2003-2007.................................................     $.57
(9) For purposes of this schedule the rate for the performance of theme
 music in an entire series shall be double the single program theme
 rate.
(10) In the event the work is first performed in a program of a station
 of PBS or NPR, and such program is subsequently distributed by PBS or
 NPR, an additional royalty payment shall be made equal to the
 difference between the rate specified in this section for a program of
 a station of PBS or NPR, respectively, and the rate specified in this
 section for a PBS or NPR program, respectively.
 

* * * * *


Sec.  253.5  [Amended]

    5. Section 253.5(c)(3) is amended by removing ``$66'' and adding 
``$80'' in its place.

[[Page 77172]]


    6. Section 253.6(c) is revised to read as follows:


Sec.  253.6  Performance of musical compositions by other public 
broadcasting entities.

* * * * *
    (c) Royalty rate. A public broadcasting entity within the scope of 
this section may perform published nondramatic musical compositions 
subject to the following schedule of royalty rates:
    (1) For all such compositions in the repertory of ASCAP, in 2003, 
$460; in 2004, $475; in 2005, $495; in 2006, $515; in 2007, $535.
    (2) For all such compositions in the repertory of BMI, in 2003, 
$460; in 2004, $475; in 2005, $495; in 2006, $515; in $2007, $535.
    (3) For all such compositions in the repertory of SESAC, in 2003, 
$98; in 2004, $100; in 2005, $102; in 2006, $104; in 2007, $106.
    (4) For the performance of any other such compositions, in 2003 
through 2007, $1.
* * * * *
    7. Section 253.7 is amended as follows:
    a. In paragraph (a), by removing ``or compositions represented by 
the Harry Fox Agency, Inc., SESAC, and/or the National Music Publishers 
Association and which are licensed on terms and conditions established 
by a duly empowered Copyright Arbitration Royalty Panel pursuant to the 
procedures set forth in this subchapter,''; and
    b. By revising paragraph (b).
    The revisions to Sec.  253.7 read as follows:


Sec.  253.7  Recording rights, rates and terms.

* * * * *
    (b) Royalty rate. (1)(i) For uses described in paragraph (a) of 
this section of a musical work in a PBS-distributed program, the 
royalty fees shall be calculated by multiplying the following per-
composition rates by the number of different compositions in that PBS-
distributed program:

 
                                                              2003-2007
 
Feature....................................................      $112.40
Concert feature (per minute)...............................        33.75
Background.................................................        56.81
Theme:
  Single program or first series program...................        56.81
  Other series program.....................................        23.06
 

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

 
                                                              2003-2007
 
Feature....................................................        $9.29
Concert feature (per minute)...............................         2.44
Background.................................................         4.04
Theme:
  Single program or first series program...................         4.04
  Other series program.....................................         1.61
 

    (iii) In the event the work is first recorded other than in a PBS-
distributed program, and such program is subsequently distributed by 
PBS, an additional royalty payment shall be made equal to the 
difference between the rate specified in this section for other than a 
PBS-distributed program and the rate specified in this section for a 
PBS-distributed program.
    (2) For uses licensed herein of a musical work in a NPR program, 
the royalty fees shall be calculated by multiplying the following per-
composition rates by the number of different compositions in any NPR 
program distributed by NPR. For purposes of this schedule ``National 
Public Radio'' programs include all programs produced in whole or in 
part by NPR, or by any NPR station or organization under contract with 
NPR.

 
                                                              2003-2007
 
Feature....................................................       $12.17
Concert feature (per minute)...............................        17.86
Background.................................................         6.10
Theme:
  Single program or first series program...................         6.10
  Other series program.....................................         2.43
 

    (3) For purposes of this schedule, a ``Concert Feature'' shall be 
deemed to be the nondramatic presentation in a program of all or part 
of a symphony, concerto, or other serious work originally written for 
concert performance or the nondramatic presentation in a program of 
portions of a serious work originally written for opera performance.
    (4) For such uses other than in an NPR-produced radio program:

 
                                                              2003-2007
 
Feature....................................................         $.78
Feature (concert)(per half hour)...........................         1.63
Background.................................................          .39
 

    (5) The schedule of fees covers use for a period of three years 
following the first use. Succeeding use periods will require the 
following additional payment: additional one-year period--25 percent of 
the initial three-year fee; second three-year period--50 percent of the 
initial three-year fee; each three-year fee thereafter--25 percent of 
the initial three-year fee; provided that a 100 percent additional 
payment prior to the expiration of the first three-year period will 
cover use during all subsequent use periods without limitation. Such 
succeeding uses which are subsequent to December 31, 2007, shall be 
subject to the royalty rates established in this schedule.
* * * * *
    8. Section 253.8 is amended by revising paragraphs (b)(1) and 
(f)(1) to read as follows (the undesignated paragraph following (b)(1) 
is unchanged):


Sec.  253.8  Terms and rates of royalty payments for the use of 
published pictorial, graphic, and sculptural works.

* * * * *
    (b) * * *
    (1) The following schedule of rates shall apply to the use of works 
within the scope of this section:
    (i) For such uses in a PBS-distributed program:

 
                                                              2003-2007
 
(A) For featured display of a work.........................       $68.67
(B) For background and montage display.....................        33.49
(C) For use of a work for program identification or for           135.37
 thematic use..............................................
(D) For the display of an art reproduction copyrighted             44.47
 separately from the work of fine art from which the work
 was reproduced irrespective of whether the reproduced work
 of fine art is copyrighted so as to be subject also to
 payment of a display fee under the terms of the schedule..
 

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

 
                                                              2003-2007
 
(A) For featured display of a work.........................       $44.47
(B) For background and montage display.....................        22.80
(C) For use of a work for a program identification or for          90.91
 thematic use..............................................
(D) For the display of an art reproduction copyrighted             22.80
 separately from the work of fine art from which the work
 was reproduced irrespective of whether the reproduced work
 of fine art is copyrighted so as to be subject also to
 payment of a display fee under the terms of this schedule.
 

* * * * *
    (f) * * *

[[Page 77173]]

    (1) The rates of this schedule are for unlimited use for a period 
of three years from the date of the first use of the work under this 
schedule. Succeeding use periods will require the following additional 
payment: Additional one-year period--25 percent of the initial three-
year fee; second three-year period--50 percent of the initial three-
year fee; each three-year period thereafter--25 percent of the initial 
three-year fee; provided that a 100 percent additional payment prior to 
the expiration of the first three-year period will cover use during all 
subsequent use periods without limitation. Such succeeding uses which 
are subsequent to December 31, 2007, shall be subject to the rates 
established in this schedule.
* * * * *

    9. In Sec.  253.10, the first sentence in paragraph (a) is revised 
to read:


Sec.  253.10  Cost of living adjustment.

    (a) On December 1, 2003, the Librarian of Congress shall publish in 
the Federal Register a notice of the change in the cost of living as 
determined by the Consumer Price Index (all consumers, all items) 
during the period from the most recent Index published prior to 
December 1, 2002, to the most recent Index published prior to December 
1, 2003. * * *
* * * * *

    Dated: December 3, 2002.
Marybeth Peters,
Register of Copyrights.
James H. Billington,
The Librarian of Congress.
[FR Doc. 02-31620 Filed 12-16-02; 8:45 am]
BILLING CODE 1410-31-P