[Federal Register Volume 74, Number 240 (Wednesday, December 16, 2009)]
[Proposed Rules]
[Pages 66601-66602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29904]


=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 382

[Docket No. 2006-1 CRB DSTRA]


Determination of Rates and Terms for Preexisting Subscription 
Services and Satellite Digital Audio Radio Services

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Copyright Royalty Judges are publishing for comment 
proposed regulations governing the rates for the satellite digital 
audio radio services' use of the ephemeral recordings statutory license 
under the Copyright Act for the period 2007 through 2012.

DATES: Comments and objections, if any, are due no later than January 
15, 2010.

ADDRESSES: Comments and objections may be sent electronically to 
[email protected]. In the alternative, send an original, five copies and an 
electronic copy on a CD either by mail or hand delivery. Please do not 
use multiple means of transmission. Comments and objections may not be 
delivered by an overnight delivery service other than U.S. Postal 
Service Express Mail. If by mail (including overnight delivery), 
comments and objections must be addressed to: Copyright Royalty Board, 
P.O. Box 70977, Washington, DC 20024-0977. If hand delivered by a 
private party, comments and objections must be brought to the Copyright 
Office Public Information Office, Library of Congress, James Madison 
Memorial Building, Room LM-401, 101 Independence Avenue, SE., 
Washington, DC 20559-0600, between 8:30 a.m. and 5 p.m. If delivered by 
a commercial courier, comments and objections must be delivered between 
8:30 a.m. and 4 p.m. to the Congressional Courier Acceptance Site 
located at 2nd and D Street, NE., Washington, DC, and the envelope must 
be addressed as follows: Copyright Royalty Board, Library of Congress, 
James Madison Memorial Building, Room LM-403, 101 Independence Avenue, 
SE., Washington, DC 20559-0600.

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

SUPPLEMENTARY INFORMATION:

Background

    On January 24, 2008, the Copyright Royalty Judges published in the 
Federal Register their determination of royalty rates and terms under 
the statutory licenses under Sections 112(e) and 114 of the Copyright 
Act for the period 2007 through 2012 for satellite digital audio radio 
services (``SDARS''). 73 FR 4080. In SoundExchange, Inc. v. Librarian 
of Congress, 571 F.3d 1220, 1226 (DC Cir. 2009), the U.S. Court of 
Appeals for the DC Circuit affirmed the Judges' determination in all 
but one respect, remanding to the Copyright Royalty Judges the single 
matter of specifying a royalty for the use of the ephemeral recordings 
statutory license under Section 112(e) of the Copyright Act. By order 
dated October 22, 2009, the Copyright Royalty Judges established a 
period commencing on November 2, 2009, and concluding on December 2, 
2009, for Sound Exchange, Inc. and Sirius XM Radio Inc. (collectively, 
the ``Parties'') to negotiate and submit a settlement of the ephemeral 
royalty rate

[[Page 66602]]

issue that was the subject of the remand. With the Parties having 
reached such a settlement, the Copyright Royalty Judges now publish for 
comment the proposed change in the rule that is necessary to implement 
that settlement pursuant to order of remand from the U.S. Court of 
Appeals for the DC Circuit.
    In the Settlement, the Parties have agreed to proposed changes in 
the regulations at 37 CFR 382.12 that do not disturb the combined 
Section 112(e)/114 royalty previously set by the Copyright Royalty 
Judges, but do specify that five percent of the combined royalty will 
be considered the Section 112(e) royalty, while the balance of the 
royalty is attributable to the Section 114 license.

List of Subjects in 37 CFR Part 382

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

Proposed Regulations

    For the reasons set forth in the preamble, the Copyright Royalty 
Judges propose to amend part 382 of title 37 of the Code of Federal 
Regulations as follows:

PART 382--RATES AND TERMS FOR DIGITAL TRANSMISSIONS OF SOUND 
RECORDINGS AND THE REPRODUCTION OF EPHEMERAL RECORDINGS BY 
PREEXISTING SUBSCRIPTION SERVICES AND PREEXISTING SATELLITE DIGITAL 
AUDIO RADIO SERVICES

    1. The authority citation for part 382 continues to read as 
follows:

    Authority:  17 U.S.C. 112(e), 114, and 801(b)(1).

    2. Section 382.12 is revised to read as follows:


Sec.  382.12  Royalty fees for the public performance of sound 
recordings and the making of ephemeral recordings.

    (a) In general. The monthly royalty fee to be paid by a Licensee 
for the public performance of sound recordings pursuant to 17 U.S.C. 
114(d)(2) and the making of any number of ephemeral phonorecords to 
facilitate such performances pursuant to 17 U.S.C. 112(e) shall be the 
percentage of monthly Gross Revenues resulting from Residential 
services in the United States as follows: for 2007 and 2008, 6.0%; for 
2009, 6.5%; for 2010, 7.0%; for 2011, 7.5%; and for 2012, 8.0%.
    (b) Ephemeral recordings. The royalty payable under 17 U.S.C. 
112(e) for the making of phonorecords used by the Licensee solely to 
facilitate transmissions during the Term for which it pays royalties as 
and when provided in this subpart shall be included within, and 
constitute 5% of, such royalty payments.

    Dated: December 11, 2009.
James Scott Sledge,
Chief U.S. Copyright Royalty Judge.
[FR Doc. E9-29904 Filed 12-15-09; 8:45 am]
BILLING CODE 1410-72-P