[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Proposed Rules]
[Pages 19138-19144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7067]


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LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 381

[Docket No. 2006-2 CRB NCBRA]


Noncommercial Educational Broadcasting Statutory License

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Copyright Royalty Judges are publishing for comment 
certain royalty rates, proposed by the parties in the proceeding to 
determine the rates and terms for the noncommercial educational 
broadcasting statutory license contained in the Copyright Act.

DATES: Comments and objections, if any, are due on or before May 17, 
2007.

ADDRESSES: An original, five paper copies, and one electronic copy in 
Portable Document Format (PDF) on compact disk (an optical data storage 
medium such as a CD-ROM, CD-R or CD-RW) or floppy diskette of a comment 
or objection must be delivered to the Copyright Royalty Board in one of 
the following ways: If hand delivered by a private party, the comment 
or objection should be brought to the Copyright Office Public 
Information Office in the James Madison Memorial Building, Room LM-401, 
101 Independence Avenue, SE., Monday through Friday, between 8:30 a.m. 
and 5 p.m., and the envelope must be addressed as follows: Copyright 
Royalty Board, Library of Congress, James Madison Memorial Building, 
101 Independence Avenue, SE., Washington, DC 20559-6000. If delivered 
by a commercial courier (excluding overnight delivery services such as 
Federal Express, United Parcel Service and similar overnight delivery 
services), the comment or objection must be delivered to the 
Congressional Courier Acceptance Site (CCAS) located at 2nd and D 
Street, NE., Monday through Friday, between 8:30 a.m. and 4 p.m., and 
the envelope must be addressed as follows: Copyright Royalty Board, 
Library of Congress, James Madison Memorial Building, 101 Independence 
Avenue, SE., Washington, DC 20559-6000. If a comment or objection is 
sent by mail (including overnight delivery using United States Postal 
Service Express Mail), the envelope must be addressed to: Copyright 
Royalty Board, P.O. Box 70977, Southwest Station, Washington, DC 20024-
0977. Comments and objections may not be delivered by means of 
overnight delivery services such as Federal Express, United Parcel 
Service, etc., due to delays in processing receipt of such deliveries.

FOR FURTHER INFORMATION CONTACT: Gina Giuffreda, Attorney-Advisor. 
Telephone (202) 707-7658. Telefax (202) 252-3423.

SUPPLEMENTARY INFORMATION:

Background

    Section 118 of the Copyright Act, title 17 of the United States 
Code, establishes a statutory license for the use of certain 
copyrighted works in connection with noncommercial television and radio 
broadcasting. The terms and rates for this statutory license have been 
adjusted periodically by the Librarian of Congress and appear in 37 CFR 
Part 253. However, the Copyright Royalty and Distribution Reform Act of 
2004, Pub. L. No. 108-419, transferred jurisdiction over these rates 
and terms to the Copyright Royalty Judges. 17 U.S.C. 801(b)(1). This is 
a window year for the establishment of new rates and terms for the 
2008-2012 license period.
    On January 9, 2006, pursuant to 17 U.S.C. 803(b)(1)(A)(i)(V), the 
Copyright Royalty Judges published a notice in the Federal Register 
announcing commencement of proceedings under 17 U.S.C. 118 and 
requesting interested parties to submit their petitions to participate. 
71 FR 1453 (January 9, 2006). Petitions to participate were received 
from: the American Council on Education (``ACE''); the National Music 
Publishers Association, Inc. (``NMPA''); the Harry Fox Agency 
(``HFA''); the National Religious Broadcasters Noncommercial Music 
License Committee (``NRBNMLC''); Royalty Logic, Inc.; the American 
Society of Composers, Authors and Publishers (``ASCAP''); Broadcast 
Music, Inc. (``BMI''); SESAC, Inc.; National Public Radio (``NPR''); 
the Corporation for Public Broadcasting (``CPB''); the Public 
Broadcasting Service (``PBS''); and the Church Music Publishers 
Association, Inc. The Judges set the timetable for the three-month 
negotiation period, see 17 U.S.C. 803(b)(3), and directed the

[[Page 19139]]

participants to submit their written direct statements no later than 
January 30, 2007. Instead of written direct statements, the parties 
submitted notification of settlements and proposed rates and terms for 
the Copyright Royalty Judges to adopt.
    There are two ways that copyright owners and public broadcasting 
entities \1\ may negotiate rates and terms under the section 118 
statutory license. First, copyright owners may negotiate rates and 
terms with specific public broadcasting entities for the use of all of 
the copyright owners' works covered by the license. Section 118(b)(2) 
provides that such license agreements ``shall be given effect in lieu 
of any determination by the * * * Copyright Royalty Judges,'' provided 
that copies of the agreements are submitted to the Copyright Royalty 
Board ``within 30 days of execution.'' 17 U.S.C. 118(b)(2). The 
Copyright Royalty Judges received notification of several agreements in 
this category for which no further action is required.
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    \1\ A ``public broadcasting entity'' is defined as a 
``noncommercial educational broadcast station as defined in section 
397 of title 47 and any nonprofit institution or organization 
engaged in the activities described in paragraph (2) of subsection 
(c)'' of section 118.
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    Second, copyright owners and public broadcasting entities may 
negotiate rates and terms for categories of copyrighted works and uses, 
that would be binding on all owners and entities, and submit them to 
the Copyright Royalty Judges for approval. Section 801(b)(7)(A) 
provides that in such event:

    (i) the Copyright Royalty Judges shall provide to those that 
would be bound by the terms, rates, or other determination set by 
any agreement in a proceeding to determine royalty rates an 
opportunity to comment on the agreement and shall provide to 
participants in the proceeding under section 803(b)(2) that would be 
bound by the terms, rates, or other determination set by the 
agreement to comment on the agreement and object to its adoption as 
a basis for statutory terms and rates; and
    (ii) the Copyright Royalty Judges may decline to adopt the 
agreement as a basis for statutory terms and rates for participants 
that are not parties to the agreement, if any participant described 
in clause (i) objects to the agreement and the Copyright Royalty 
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). The Copyright Royalty Judges received seven 
proposals within this category: (1) A joint proposal of BMI and the 
NRBNMLC; (2) a joint proposal of ASCAP and ACE; (3) a joint proposal of 
SESAC and ACE; (4) a joint proposal of HFA, NMPA and the NRBNMLC; (5) a 
joint proposal of SESAC and the NRBNMLC; (6) a joint proposal of ASCAP 
and the NRBNMLC; and (7) a joint proposal of BMI and ACE. After 
reviewing the proposals, the Copyright Royalty Judges determined that 
they were insufficient on their face.\2\ By Order dated February 22, 
2007, the Judges directed the parties to amend their proposals. On 
March 15, 2007, ACE, ASCAP, BMI, HFA, NMPA, NPR, NRBNMLC, PBS and SESAC 
submitted a joint proposal for section 118 rates and terms. It is this 
proposal that the Judges are publishing today for comment.\3\
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    \2\ The reason for the insufficiency was the parties' incorrect 
assumption that the Copyright Royalty Judges would be amending part 
253 of title 37 of the Code of Federal Regulations-the Copyright 
Office's rules-rather than our own rules. As a result, the parties 
only proposed amendments rather than a complete text of regulations.
    \3\ Part 381, which we propose today, will be part of a new 
Subchapter E which will contain the rates and terms for the various 
statutory licenses. This new subchapter will be established upon the 
publication of the final determination of the rates and terms for 
the section 112 and 114 statutory licenses, Docket No. 2005-1 CRB 
DTRA, and will contain Part 380.
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    As part of this notice of proposed rulemaking (``NPRM''), the 
Copyright Royalty Judges are modifying three aspects of the joint 
proposal. First, the proposed regulations for terms governing the 
recording of nondramatic performances and displays of musical works and 
the terms for the use of published pictorial, graphic and sculptural 
works require the deposit with the Copyright Office of cue sheets (for 
musical works) and standard lists (for pictorial, graphic and 
sculptural works) in hard copy format. We are changing these provisions 
to require submission of cue sheets and standard lists in electronic 
disk format only (due to space limitations) and requiring that they be 
submitted to the offices of the Copyright Royalty Board rather than the 
Copyright Office.
    Second, the joint proposal requires public broadcasting entities to 
make information concerning fees deposited in trust funds for unknown 
copyright owners available upon request to the Copyright Office. We are 
changing the provision to make the information available to the 
Copyright Royalty Judges instead of the Copyright Office.
    Third, the parties have included a provision in their proposal 
governing the rates and terms applicable to certain public broadcasting 
entities that states that such rates and terms are experimental, 
without precedential effect, and may not be introduced or relied upon 
in any governmental, administrative or judicial proceeding. The 
Copyright Royalty Judges decline to include such a provision within our 
regulations. Our task, as set forth in section 118 and chapter 8 of the 
Copyright Act, is to adopt rates and terms for the noncommercial 
broadcasting license. It is not our task to offer evaluations, 
limitations or characterizations of the rates and terms, or make 
statements about their use or value in proceedings other than this one.
    As discussed above, the public may comment and object to any or all 
of the proposed regulations contained in this NPRM. Those who do 
comment and object, however, must be prepared to participate in further 
proceedings in this docket to establish rates and terms for the section 
118 license.

List of Subjects in 37 CFR Part 381

    Copyright, Music, Radio, Television, Rates.

Proposed Regulations

    For the reasons set forth in the preamble, the Copyright Royalty 
Judges propose to add Part 381 to Chapter III of title 37 of the Code 
of Federal Regulations to read as follows:

PART 381--USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH 
NONCOMMERCIAL EDUCATIONAL BROADCASTING

Sec.
381.1 General.
381.2 Definition of public broadcasting entity.
381.3 [Reserved]
381.4 Performance of musical compositions by PBS, NPR and other 
public broadcasting entities engaged in the activities set forth in 
17 U.S.C. 118(c).
381.5 Performance of musical compositions by public broadcasting 
entities licensed to colleges and universities.
381.6 Performance of musical compositions by other public 
broadcasting entities.
381.7 Recording rights, rates and terms.
381.8 Terms and rates of royalty payments for the use of published 
pictorial, graphic and sculptural works.
381.9 Unknown copyright owners.
381.10 Cost of living adjustment.
381.11 Notice of restrictions on use of reproductions of 
transmission programs.

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


Sec.  381.1  General.

    This part establishes terms and rates of royalty payments for 
certain activities using published nondramatic musical works and 
published pictorial, graphic and sculptural works during a period 
beginning on January 1, 2008, and ending on December 31, 2012. Upon 
compliance with 17 U.S.C. 118, and the terms and rates of this part, a 
public broadcasting entity may engage in the

[[Page 19140]]

activities with respect to such works set forth in 17 U.S.C. 118(c).


Sec.  381.2  Definition of public broadcasting entity.

    As used in this part, the term public broadcasting entity means a 
noncommercial educational broadcast station as defined in section 397 
of title 47 and any nonprofit institution organization engaged in the 
activities described in 17 U.S.C. 118(c).


Sec.  381.3  [Reserved]


Sec.  381.4  Performance of musical compositions by PBS, NPR and other 
public broadcasting entities engaged in the activities set forth in 17 
U.S.C. 118(c).

    The following schedule of rates and terms shall apply to the 
performance by PBS, NPR and other public broadcasting entities engaged 
in activities set forth in 17 U.S.C. 118(c) of copyrighted published 
nondramatic musical compositions, except for public broadcasting 
entities covered by Sec. Sec.  381.5 and 381.6, and except for 
compositions which are the subject of voluntary license agreements.
    (a) Determination of royalty rate. (1) For performance of such work 
in a feature presentation of PBS:

2008-2012...................................................     $227.58
 

    (2) For performance of such a work as background or theme music in 
a PBS program:

2008-2012...................................................      $57.66
 

    (3) For performance of such a work in a feature presentation of a 
station of PBS:

2008-2012...................................................      $19.45
 

    (4) For performance of such a work as background or theme music in 
a program of a station of PBS:

2008-2012...................................................       $4.10
 

    (5) For the performance of such a work in a feature presentation of 
NPR:

2008-2012...................................................      $23.07
 

    (6) For the performance of such a work as background or theme music 
in an NPR program:

2008-2012...................................................       $5.59
 

    (7) For the performance of such a work in a feature presentation of 
a station of NPR:

2008-2012...................................................       $1.63
 

    (8) For the performance of such a work as background or theme music 
in a program of a station of NPR:

2008-2012...................................................        $.58
 

    (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.
    (b) Payment of royalty rate. The required royalty rate shall be 
paid to each known copyright owner not later than July 31 of each 
calendar year for uses during the first six months of that calendar 
year, and not later than January 31 for uses during the last six months 
of the preceding calendar year.
    (c) Records of use. PBS and NPR shall, upon the request of a 
copyright owner of a published musical work who believes a musical 
composition of such owner has been performed under the terms of this 
schedule, permit such copyright owner a reasonable opportunity to 
examine their standard cue sheets listing the nondramatic performances 
of musical compositions on PBS and NPR programs. Any local PBS and NPR 
station that shall be required by the provisions of any voluntary 
license agreement with ASCAP, BMI or SESAC covering the license period 
January 1, 2008, to December 31, 2012, to provide a music use report 
shall, upon request of a copyright owner who believes a musical 
composition of such owner has been performed under the terms of this 
schedule, permit such copyright owner to examine the report.
    (d) Terms of use. The fees provided in this schedule for the 
performance of a musical work in a program shall cover performances of 
such work in such program for a period of four years following the 
first performance.


Sec.  381.5  Performance of musical compositions by public broadcasting 
entities licensed to colleges and universities.

    (a) Scope. This section applies to the performance of copyrighted 
published nondramatic musical compositions by noncommercial radio 
stations which are licensed to accredited colleges, accredited 
universities, or other accredited nonprofit educational institutions 
and which are not affiliated with National Public Radio. For purposes 
of this section, accreditation of institutions providing post-secondary 
education shall be determined by a regional or national accrediting 
agency recognized by the Council for Higher Education Accreditation or 
the United States Department of Education; and accreditation of 
institutions providing elementary or secondary education shall be as 
recognized by the applicable state licensing authority.
    (b) Voluntary license agreements. Notwithstanding the schedule of 
rates and terms established in this section, the rates and terms of any 
license agreements entered into by copyright owners and colleges, 
universities, and other nonprofit educational institutions concerning 
the performance of copyrighted musical compositions, including 
performances by noncommercial radio stations, shall apply in lieu of 
the rates and terms of this section.
    (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, $277 
annually in 2007, as adjusted pursuant to Sec.  381.10.
    (2) For all such compositions in the repertory of BMI, $277 
annually in 2007, as adjusted pursuant to Sec.  381.10.
    (3) For all such compositions in the repertory of SESAC, $116 
annually in 2008, as adjusted pursuant to Sec.  381.10.
    (4) For the performance of any other such compositions: $1.
    (d) Payment of royalty rate. The public broadcasting entity shall 
pay the required royalty rate to ASCAP, BMI and SESAC not later than 
January 31 of each year.
    (e) Records of use. A public broadcasting entity subject to this 
section shall furnish to ASCAP, BMI and SESAC, upon request, a music-
use report during one week of each calendar year. ASCAP, BMI and SESAC 
shall not in any one calendar year request more than 10 stations to 
furnish such reports.


Sec.  381.6  Performance of musical compositions by other public 
broadcasting entities.

    (a) Scope. This section applies to the performance of copyrighted 
published nondramatic musical compositions by radio stations not 
licensed to colleges, universities, or other nonprofit educational 
institutions and which are not affiliated with NPR. In the event that a 
station owned by a public broadcasting entity broadcasts programming by 
means of an in-band, on-channel (``IBOC'') digital radio signal and 
such programming is different than the station's analog broadcast 
programming, then any such programming shall be deemed to be provided 
by a separate station requiring a separate royalty payment.
    (b) Voluntary license agreements. Notwithstanding the schedule of 
rates

[[Page 19141]]

and terms established in this section, the rates and terms of any 
license agreements entered into by copyright owners and noncommercial 
radio stations within the scope of this section concerning the 
performance of copyrighted musical compositions, including performances 
by noncommercial radio stations, shall apply in lieu of the rates and 
terms of this section.
    (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, the 
royalty rates shall be as follows:

----------------------------------------------------------------------------------------------------------------
                               Population count      2008         2009         2010         2011         2012
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Level 1......................  0-249,999.......         $550         $567         $583         $601         $619
Level 2......................  250,000-499,999.        1,000        1,030        1,061        1,093        1,126
Level 3......................  500,000-999,999.        1,500        1,545        1,591        1,639        1,688
Level 4......................  1,000,000-1,499,        2,000        2,060        2,122        2,185        2,251
                                999.
Level 5......................  1,500,000-1,999,        2,500        2,575        2,652        2,732        2,814
                                999.
Level 6......................  2,000,000-2,499,        3,000        3,090        3,183        3,278        3,377
                                999.
Level 7......................  2,500,000-2,999,        3,500        3,605        3,713        3,825        3,939
                                999.
Level 8......................  3,000,000 and           5,000        5,150        5,305        5,464        5,628
                                above.
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    (2) For all such compositions in the repertory of BMI, the royalty 
rates shall be as follows:

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                               Population count      2008         2009         2010         2011         2012
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Level 1......................  0-249,999.......         $550         $567         $583         $601         $619
Level 2......................  250,000-499,999.        1,000        1,030        1,061        1,093        1,126
Level 3......................  500,000-999,999.        1,500        1,545        1,591        1,639        1,688
Level 4......................  1,000,000-1,499,        2,000        2,060        2,122        2,185        2,251
                                999.
Level 5......................  1,500,000-1,999,        2,500        2,575        2,652        2,732        2,814
                                999.
Level 6......................  2,000,000-2,499,        3,000        3,090        3,183        3,278        3,377
                                999.
Level 7......................  2,500,000-2,999,        3,500        3,605        3,713        3,825        3,939
                                999.
Level 8......................  3,000,000 and           5,000        5,150        5,305        5,464        5,628
                                above.
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    (3) For all such compositions in the repertory of SESAC, the 
royalty rates shall be as follows:

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                               Population count      2008         2009         2010         2011         2012
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Level 1......................  0-249,999.......         $120         $124         $127         $131         $135
Level 2......................  250,000-499,999.          200          206          212          219          225
Level 3......................  500,000-999,999.          300          309          318          328          338
Level 4......................  1,000,000-1,499,          400          412          424          437          450
                                999.
Level 5......................  1,500,000-1,999,          500          515          530          546          563
                                999.
Level 6......................  2,000,000-2,499,          600          618          637          656          675
                                999.
Level 7......................  2,500,000-2,999,          700          721          743          765          788
                                999.
Level 8......................  3,000,000 and           1,000        1,030        1,061        1,093        1,126
                                above.
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    (4) For the performance of any other such compositions, in 2008 
through 2012, $1.
    (d) Payment of royalty rate. The public broadcasting entity shall 
pay the required royalty rate to ASCAP, BMI and SESAC not later than 
January 31 of each year. Each annual payment shall be accompanied by a 
signed declaration stating the Population Count of the public 
broadcasting entity and the source for such Population Count. An exact 
copy of such declaration shall be furnished to each of ASCAP, BMI and 
SESAC. Upon prior written notice thereof from ASCAP, BMI or SESAC, a 
public broadcasting entity shall make its books and records relating to 
its Population Count available for inspection.
    (e) Records of use. A public broadcasting entity subject to this 
section shall furnish to ASCAP, BMI and SESAC, upon request, a music-
use report during one week of each calendar year. ASCAP, BMI and SESAC 
each shall not in any one calendar year request more than 10 stations 
to furnish such reports.
    (f) Definitions. As used in paragraphs (c) and (d) of this section, 
the following terms and their variant forms mean the following:
    (1) Population Count. The combination of:
    (i) The number of persons estimated to reside within a station's 
Predicted 60 dBu Contour, based on the most recent available census 
data; and
    (ii) The nonduplicative number of persons estimated to reside in 
the Predicted 60 dBu Contour of any Translator Station or Booster 
Station that extends a public broadcasting entity's signal beyond the 
contours of a station's Predicted 60 dBu Contour.
    (iii) In determining Population Count, a station or a Translator 
Station or a Booster Station may use and report the total population 
data, from a research company generally recognized in the broadcasting 
industry, for the radio market within which the station's community 
license is located.
    (2) Predicted 60 dBu Contour shall be calculated as set forth in 47 
CFR 73.313.

[[Page 19142]]

    (3) Translator Station and Booster Station shall have the same 
meanings as set forth in 47 CFR 74.1201.


Sec.  381.7  Recording rights, rates and terms.

    (a) Scope. This section establishes rates and terms for the 
recording of nondramatic performances and displays of musical works, 
other than compositions subject to voluntary license agreements, on and 
for the radio and television programs of public broadcasting entities, 
whether or not in synchronization or timed relationship with the visual 
or aural content, 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 and 
terms established in this schedule include the making of the 
reproductions described in 17 U.S.C. 118(c)(3).
    (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:

                                                               2008-2012
(A) Feature.................................................     $149.94
(B) Concert feature (per minute)............................       44.59
(C) Background..............................................       74.97
(D) Theme:
    (1) Single program or first series program..............       74.97
    (2) Other series program................................       30.39
 

    (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:

                                                               2008-2012
(A) Feature.................................................       $9.43
(B) Concert feature (per minute)............................        2.48
(C) Background..............................................        4.10
(D) Theme:
    (1) Single program or first series of program...........        4.10
    (2) Other series program................................        1.63
 

    (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.

                                                               2008-2012
(i) Feature.................................................      $12.35
(ii) Concert feature (per minute)...........................       18.13
(iii) Background............................................        6.19
(iv) Theme:
    (A) Single program or first series program..............        6.19
    (B) Other series program................................        2.47
 

    (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:

                                                               2008-2012
(i) Feature.................................................        $.79
(ii) Feature (concert) (per half hour)......................        1.65
(iii) Background............................................         .40
 

    (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, 2012, shall be 
subject to the royalty rates established in this schedule.
    (c) Payment of royalty rates. The required royalty rates shall be 
paid to each known copyright owner not later than July 31 of each 
calendar year for uses during the first six months of that calendar 
year, and not later than January 31 for uses during the last six months 
of the preceding calendar year.
    (d) Records of use. (1) Maintenance of cue sheets. PBS and its 
stations, NPR, or other public broadcasting entities shall maintain and 
make available for examination pursuant to paragraph (e) of this 
section copies of their standard cue sheets or summaries of same 
listing the recording of the musical works of such copyright owners.
    (2) Content of cue sheets or summaries. Such cue sheets or 
summaries shall include:
    (i) The title, composer and author to the extent such information 
is reasonably obtainable.
    (ii) The type of use and manner of performance thereof in each 
case.
    (iii) For Concert Feature music, the actual recorded time period on 
the program, plus all distribution and broadcast information available 
to the public broadcasting entity.
    (e) Filing of use reports with the Copyright Royalty Judges. 
Deposit of cue sheets or summaries. PBS and its stations, NPR, or other 
television public broadcasting entity shall deposit with the Copyright 
Royalty Judges one electronic copy in Portable Document Format (PDF) on 
compact disk (an optical data storage medium such as a CD-ROM, CD-R or 
CD-RW) or floppy diskette of their standard music cue sheets or 
summaries of same listing the recording pursuant to this schedule of 
the musical works of copyright owners. Such cue sheets or summaries 
shall be deposited not later than July 31 of each calendar year for 
recordings during the first six months of the calendar year and not 
later than January 31 of each calendar year for recordings during the 
second six months of the preceding calendar year. PBS and NPR shall 
maintain at their offices copies of all standard music cue sheets from 
which such music use reports are prepared. Such music cue sheets shall 
be furnished to the Copyright Royalty Judges upon their request and 
also shall be available during regular business hours at the offices of 
PBS or NPR for examination by a copyright owner who believes a musical 
composition of such owner has been recorded pursuant to this schedule.


Sec.  381.8  Terms and rates of royalty payments for the use of 
published pictorial, graphic, and sculptural works.

    (a) Scope. This section establishes rates and terms for the use of 
published pictorial, graphic, and sculptural works by public 
broadcasting entities for the activities described in 17 U.S.C. 118. 
The rates and terms established in this

[[Page 19143]]

schedule include the making of the reproductions described in 17 U.S.C. 
118(c).
    (b) Royalty rate. (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:

                                                               2008-2012
(A) For featured display of a work..........................      $69.70
(B) For background and montage display......................       33.99
(C) For use of a work for program identification or for           137.40
 thematic use...............................................
(D) For the display of an art reproduction copyrighted             45.14
 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:

                                                               2008-2012
(A) For featured display of a work..........................      $45.14
(B) For background and montage display......................       23.13
(C) For use of a work for program identification or for            92.27
 thematic use...............................................
(D) For the display of an art reproduction copyrighted             23.14
 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..
 

    (2) For the purposes of the schedule in paragraph (b)(1) of this 
section the rate for the thematic use of a work in an entire series 
shall be double the single program theme rate. In the event the work is 
first used 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.
    (3) ``Featured display'' for purposes of this schedule means a 
full-screen or substantially full-screen display appearing on the 
screen for more than three seconds. Any display less than full-screen 
or substantially full-screen, or full-screen for three seconds or less, 
is deemed to be a ``background or montage display''.
    (4) ``Thematic use'' is the utilization of the works of one or more 
artists where the works constitute the central theme of the program or 
convey a story line.
    (5) ``Display of an art reproduction copyrighted separately from 
the work of fine art from which the work was reproduced'' means a 
transparency or other reproduction of an underlying work of fine art.
    (c) Payment of royalty rate. PBS or other public broadcasting 
entity shall pay the required royalty fees to each copyright owner not 
later than July 31 of each calendar year for uses during the first six 
months of that calendar year, and not later than January 31 for uses 
during the last six months of the preceding calendar year.
    (d) Records of use. (1) PBS and its stations or other public 
broadcasting entity shall maintain and furnish either to copyright 
owners, or to the offices of generally recognized organizations 
representing the copyright owners of pictorial, graphic and sculptural 
works, copies of their standard lists containing the pictorial, 
graphic, and sculptural works displayed on their programs. Such notice 
shall include the name of the copyright owner, if known, the specific 
source from which the work was taken, a description of the work used, 
the title of the program on which the work was used, and the date of 
the original broadcast of the program.
    (2) Such listings shall be furnished not later than July 31 of each 
calendar year for displays during the first six months of the calendar 
year, and not later than January 31 of each calendar year for displays 
during the second six months of the preceding calendar year.
    (e) Filing of use reports with the Copyright Royalty Judges. (1) 
PBS and its stations or other public broadcasting entity shall deposit 
with the Copyright Royalty Judges one electronic copy in Portable 
Document Format (PDF) on compact disk (an optical data storage medium 
such as a CD-ROM, CD-R or CD-RW) or floppy diskette of their standard 
lists containing the pictorial, graphic, and sculptural works displayed 
on their programs. Such notice shall include the name of the copyright 
owner, if known, the specific source from which the work was taken, a 
description of the work used, the title of the program on which the 
work was used, and the date of the original broadcast of the program.
    (2) Such listings shall be furnished not later than July 31 of each 
calendar year for displays during the first six months of the calendar 
year, and not later than January 31 of each calendar year for displays 
during the second six months of the preceding calendar year.
    (f) Terms of use. (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, 2012, shall be 
subject to the rates established in this schedule.
    (2) Pursuant to the provisions of 17 U.S.C. 118(e), nothing in this 
schedule shall be construed to permit, beyond the limits of fair use as 
provided in 17 U.S.C. 107, the production of a transmission program 
drawn to any substantial extent from a published compilation of 
pictorial, graphic, or sculptural works.


Sec.  381.9  Unknown copyright owners.

    If PBS and its stations, NPR and its stations, or other public 
broadcasting entity is not aware of the identity of, or unable to 
locate, a copyright owner who is entitled to receive a royalty payment 
under this part, they shall retain the required fee in a segregated 
trust account for a period of three years from the date of the required 
payment. No claim to such royalty fees shall be valid after the 
expiration of the three-year period. Public broadcasting entities may 
establish a joint trust fund for the purposes of this section. Public 
broadcasting entities shall make available to the Copyright Royalty 
Judges, upon request, information concerning fees deposited in trust 
funds.


Sec.  381.10  Cost of living adjustment.

    (a) On December 1, 2007, the Copyright Royalty Judges 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, 2006, to

[[Page 19144]]

the most recent Index published prior to December 1, 2007. On each 
December 1 thereafter the Copyright Royalty Judges shall publish a 
notice of the change in the cost of living during the period from the 
most recent index published prior to the previous notice, to the most 
recent Index published prior to December 1, of that year.
    (b) On the same date of the notices published pursuant to paragraph 
(a) of this section, the Copyright Royalty Judges shall publish in the 
Federal Register a revised schedule of rates for Sec.  381.5 which 
shall adjust those royalty amounts established in dollar amounts 
according to the change in the cost of living determined as provided in 
paragraph (a) of this section. Such royalty rates shall be fixed at the 
nearest dollar.
    (c) The adjusted schedule for rates for Sec.  381.5 shall become 
effective thirty days after publication in the Federal Register.


Sec.  381.11  Notice of restrictions on use of reproductions of 
transmission programs.

    Any public broadcasting entity which, pursuant to 17 U.S.C. 118, 
supplies a reproduction of a transmission program to governmental 
bodies or nonprofit institutions shall include with each copy of the 
reproduction a warning notice stating in substance that the 
reproductions may be used for a period of not more than seven days from 
the specified date of transmission, that the reproductions must be 
destroyed by the user before or at the end of such period, and that a 
failure to fully comply with these terms shall subject the body or 
institution to the remedies for infringement of copyright.

    Dated: April 10, 2007.
James Scott Sledge,
Chief Copyright Royalty Judge.
 [FR Doc. E7-7067 Filed 4-16-07; 8:45 am]
BILLING CODE 1410-72-P