[Federal Register Volume 72, Number 230 (Friday, November 30, 2007)]
[Rules and Regulations]
[Pages 67646-67652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23145]


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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: Final rule.

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SUMMARY: The Copyright Royalty Judges are publishing final regulations 
setting the royalty rates and terms under the Copyright Act for the 
noncommercial educational broadcasting statutory license for the 
license period 2008-2012.

DATES: Effective Date: January 1, 2008.
    Applicability Date: The regulations apply to the license period 
January 1, 2008 through December 31, 2012.

FOR FURTHER INFORMATION CONTACT: Richard Strasser, Senior Attorney, or 
Gina Giuffreda, Attorney-Advisor, by telephone at (202) 707-7658 or e-
mail at [email protected].

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. 108-419, transferred jurisdiction over these rates and 
terms to the Copyright Royalty Judges (``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 the 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. The Judges set the timetable for the three-month 
negotiation period, see 17 U.S.C. 803(b)(3), and directed the 
participants to submit their written direct statements no later than 
January 20, 2007. Instead of written direct statements, the parties 
submitted notification of settlements and proposed rates and terms for 
the Judges to adopt.
    Section 801(b)(7)(A) allows for the adoption of 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 
Copyright Royalty Judges for approval. This section 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). Accordingly, on April 17, 2007, the Judges 
published a Notice of Proposed Rulemaking (``NPRM'') requesting comment 
on the

[[Page 67647]]

proposed rates and terms, with certain modifications, submitted to the 
Judges as part of a joint proposal by the following parties: ACE, 
ASCAP, BMI, HFA, NMPA, NPR, NRBNMLC, PBS, and SESAC. 72 FR 19138 (April 
17, 2007). Comments were due by May 17, 2007.

    In response to the NPRM, the Judges received only one comment, 
which was jointly submitted by NPR and PBS, stating that there had been 
an inadvertent error in the joint proposal with respect to some of the 
NPR and PBS proposed royalty rates, thereby making the rates proposed 
in Sec.  381.7(b)(1)(i) incorrect. Comments of NPR and PBS, filed May 
15, 2007, at 2. They then set out the intended rates. Id.
    Consequently, as required by section 801(b)(7)(A), the Judges 
published a second NPRM requesting comment on the rates correcting 
those previously proposed in Sec.  381.7(b)(1)(i). 72 FR 54623 
(September 26, 2007) and 72 FR 57101 (October 5, 2007). Comments were 
due by October 26, 2007. In response to this NPRM, the Judges received 
one comment from the organization Students for a Democratic Society. 
The comment stated that ``in some cases these royalties might be 
restrictive'' and that royalties may be paid ``for something that 
(perhaps) is in fact Fair Use.'' Comment submitted by Students for a 
Democratic Society on September 26, 2007. However, there was no 
indication that this organization would be bound by the proposed rates 
and terms or that it was prepared to participate in further proceedings 
to establish rates and terms for the section 118 license.
    Having received no objections from a party that would be bound by 
the proposed rates and terms and that would be willing to participate 
in further proceedings, the Copyright Royalty Judges, by this notice, 
are adopting final regulations which set the rates and terms for the 
section 118 statutory license for the period 2008-2012.

Cost of Living Adjustment

    The regulations adopted today require that on December 1 of each 
year, starting with 2007, the Judges publish 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 the previous notice,\1\ to the most recent Index 
published prior to December 1 of that year. 37 CFR 381.10(a). The 
regulations also require the Judges to publish a revised schedule of 
rates for the public performance of musical compositions in the ASCAP, 
BMI, and SESAC repertoires by public broadcasting entities licensed to 
colleges and universities, reflecting the change in the Consumer Price 
Index. 37 CFR 381.10(b). However, the rate for SESAC set forth in Sec.  
381.5(c)(4) is the rate, without any adjustment, to be paid to SESAC 
for calendar year 2008. This rate will be subject to an annual cost of 
living adjustment each year thereafter for calendar years 2009 through 
2012. See Joint Proposal of SESAC, Inc. and the American Council of 
Education at 2 (filed January 26, 2007). Therefore, the Copyright 
Royalty Judges are announcing the change in the Consumer Price Index 
and performing the required cost of living adjustment only to the rates 
for ASCAP and BMI set out in Sec. Sec.  381.5(c)(1) and (c)(2) in the 
April 17 NPRM. See 72 FR 19140.
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    \1\ The last cost of living adjustment was published on December 
1, 2006. See 71 FR 69486.
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    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 before December 1, 2006, to the most recent 
Index published before December 1, 2007, is 3.5% (2006's figure was 
201.8; the figure for 2007 is 208.936, based on 1982-1984 = 100 as a 
reference base). Rounding off to the nearest dollar, the royalty rate 
for the use of musical compositions in each of the repertoires of ASCAP 
and BMI is $287.

List of Subjects in 37 CFR Part 381

    Copyright, Music, Radio, Television, Rates.

Final Regulations

0
For the reasons set forth in the preamble, the Copyright Royalty Judges 
are adding 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 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 or 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:

[[Page 67648]]

 
    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, $287 
annually.
    (2) For all such compositions in the repertory of BMI, $287 
annually.
    (3) For all such compositions in the repertory of SESAC, $116 
annually.
    (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 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.....................................  1,000,000-1,499,999......................        2,000        2,060        2,122        2,185        2,251
Level 5.....................................  1,500,000-1,999,999......................        2,500        2,575        2,652        2,732        2,814
Level 6.....................................  2,000,000-2,499,999......................        3,000        3,090        3,183        3,278        3,377
Level 7.....................................  2,500,000-2,999,999......................        3,500        3,605        3,713        3,825        3,939
Level 8.....................................  3,000,000 and above......................        5,000        5,150        5,305        5,464        5,628
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 67649]]

    (2) For all such compositions in the repertory of BMI, the royalty 
rates shall be as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Population count                  2008         2009         2010         2011         2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.....................................  1,000,000-1,499,999......................        2,000        2,060        2,122        2,185        2,251
Level 5.....................................  1,500,000-1,999,999......................        2,500        2,575        2,652        2,732        2,814
Level 6.....................................  2,000,000-2,499,999......................        3,000        3,090        3,183        3,278        3,377
Level 7.....................................  2,500,000-2,999,999......................        3,500        3,605        3,713        3,825        3,939
Level 8.....................................  3,000,000 and above......................        5,000        5,150        5,305        5,464        5,628
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (3) For all such compositions in the repertory of SESAC, the 
royalty rates shall be as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Population count                  2008         2009         2010         2011         2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.....................................  1,000,000-1,499,999......................          400          412          424          437          450
Level 5.....................................  1,500,000-1,999,999......................          500          515          530          546          563
Level 6.....................................  2,000,000-2,499,999......................          600          618          637          656          675
Level 7.....................................  2,500,000-2,999,999......................          700          721          743          765          788
Level 8.....................................  3,000,000 and above......................        1,000        1,030        1,061        1,093        1,126
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (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 stations 
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.
    (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.............................................         $114.09
(B) Concert feature (per minute)........................           34.26
(C) Background..........................................           57.66
(D) Theme:
    (1) Single program or first series program..........           57.66

[[Page 67650]]

 
    (2) Other series program............................           23.41
------------------------------------------------------------------------

    (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

[[Page 67651]]

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 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

[[Page 67652]]

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 or before 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 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: November 23, 2007.
James Scott Sledge,
Chief Copyright Royalty Judge.
[FR Doc. E7-23145 Filed 11-29-07; 8:45 am]
BILLING CODE 1410-72-P