[Federal Register Volume 85, Number 43 (Wednesday, March 4, 2020)]
[Rules and Regulations]
[Pages 12745-12747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03304]



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LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Part 380

[Docket No. 19-CRB-0005-WR (2021-2025) (Web V)]


Determination of Rates and Terms for Digital Performance of Sound 
Recordings and Making of Ephemeral Copies To Facilitate Those 
Performances (Web V)

AGENCY: Copyright Royalty Board (CRB), Library of Congress.

ACTION: Final rule.

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SUMMARY: The Copyright Royalty Judges publish a final rule governing 
the rates and terms for the digital performance of sound recordings by 
noncommercial educational webcasters and for the making of ephemeral 
recordings necessary for the facilitation of such transmissions for the 
period commencing January 1, 2021, and ending on December 31, 2025.

DATES: Effective date: January 1, 2021.

ADDRESSES: Docket: For access to the docket to read submitted 
background documents or comments, go to eCRB, the Copyright Royalty 
Board's electronic filing and case management system, at https://app.crb.gov/ and search for docket number 19-CRB-0005-WR (2021-2025).

FOR FURTHER INFORMATION CONTACT: Anita Blaine, CRB Program Specialist, 
by telephone at (202) 707-7658 or email at [email protected].

SUPPLEMENTARY INFORMATION: On October 30, 2019, the Copyright Royalty 
Judges (Judges) published a proposed rule governing rates and terms for 
the digital performance of sound recordings by noncommercial 
educational webcasters and for the making of ephemeral recordings 
necessary for the facilitation of such transmissions for the period 
commencing January 1, 2021, and ending on December 31, 2025. 84 FR 
58095. The rates and terms in the proposed rule were the subject of a 
settlement between SoundExchange, Inc., (``SoundExchange'') and College 
Broadcasters, Inc., (``CBI'') of their interests regarding Web V \1\ 
rates and terms for certain internet transmissions of sound recordings 
by college radio stations and other noncommercial educational 
webcasters for the period from January 1, 2021, through December 31, 
2025. Joint Motion to Adopt Partial Settlement, Docket No. 19-CRB-0005-
WR (2021-2025) (``Web V''). The Judges received no comments on the 
proposed rule.
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    \1\ Web V is short for Webcasting V. This proceeding is the 
fifth since the compulsory license for webcasting was established.
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    The Judges ``may decline to adopt the agreement as a basis for 
statutory terms and rates for participants that are not parties to the 
agreement,'' only ``if any participant [in the proceeding] objects to 
the agreement and the [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)(ii). Because no Web V participant has objected to the 
settlement, and the Judges find no basis in the record to conclude that 
the settlement does not provide a reasonable basis for setting 
statutory terms and rates, the Judges adopt the terms and rates as 
proposed.

List of Subjects in 37 CFR Part 380

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

Final Regulations

    For the reasons set forth in the preamble, the Copyright Royalty 
Judges amend 37 CFR part 380 as follows:

PART 380--RATES AND TERMS FOR TRANSMISSIONS BY ELIGIBLE 
NONSUBSCRIPTION SERVICES AND NEW SUBSCRIPTION SERVICES AND FOR THE 
MAKING OF EPHEMERAL REPRODUCTIONS TO FACILITATE THOSE TRANSMISSIONS

0
1. The authority citation for part 380 continues to read as follows:

    Authority:  17 U.S.C. 112(e), 114(f), 804(b)(3).


0
2. Revise subpart C to read as follows:

Subpart C--Noncommercial Educational Webcasters

Sec.
380.20 Definitions.
380.21 Royalty fees for the public performance of sound recordings 
and for ephemeral recordings.
380.22 Terms for making payment of royalty fees and statements of 
account.


Sec.  380.20  Definitions.

    For purposes of this subpart, the following definitions apply:
    Educational Transmission means an eligible nonsubscription 
transmission (as defined in 17 U.S.C. 114(j)(6)) made by a 
Noncommercial Educational Webcaster over the internet.
    Noncommercial Educational Webcaster means a noncommercial webcaster 
(as defined in 17 U.S.C. 114(f)(4)(E)(i)) that:
    (1) Has obtained a compulsory license under 17 U.S.C. 112(e) and 
114 and the implementing regulations therefor to make Educational 
Transmissions and related Ephemeral Recordings;
    (2) Complies with all applicable provisions of Sections 112(e) and 
114 and applicable regulations in 37 CFR part 380;
    (3) Is directly operated by, or is affiliated with and officially 
sanctioned by, and the digital audio transmission operations of which 
are staffed substantially by students enrolled at, a domestically 
accredited primary or secondary school, college, university or other 
post-secondary degree-granting educational institution;
    (4) Is not a ``public broadcasting entity'' (as defined in 17 
U.S.C. 118(f)) qualified to receive funding from the Corporation for 
Public Broadcasting pursuant to its criteria; and
    (5) Takes affirmative steps not to make total transmissions in 
excess of 159,140 Aggregate Tuning Hours (ATH) on any individual 
channel or station in any month, if in any previous calendar year it 
has made total transmissions in excess of 159,140 ATH on any individual 
channel or station in any month.


Sec.  380.21  Royalty fees for the public performance of sound 
recordings and for ephemeral recordings.

    (a) Minimum fee for eligible Noncommercial Educational Webcasters. 
Each Noncommercial Educational Webcaster that did not exceed 159,140 
total ATH for any individual channel or station for more than one 
calendar month in the immediately preceding calendar year and does not 
expect to make total transmissions in excess of 159,140 ATH on any 
individual channel or station in any calendar month during the 
applicable calendar year shall pay an annual, nonrefundable minimum fee 
in the amount set forth in paragraphs (a)(1) through (5) of this 
section (the ``Minimum Fee'') for each of its individual channels, 
including each of its individual side channels, and each of its 
individual stations, through which (in each case) it makes Educational 
Transmissions, for each calendar year it makes Educational 
Transmissions subject to this subpart. For clarity, each individual 
stream (e.g., HD radio side channels, different stations owned by a 
single licensee) will be treated separately and be subject to a 
separate Minimum Fee. The Minimum Fee shall constitute the annual per 
channel or per station royalty for all Educational Transmissions 
totaling not more than 159,140 ATH in a month on any individual channel 
or station, and for Ephemeral Recordings to enable such

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Educational Transmissions. In addition, a Noncommercial Educational 
Webcaster electing the reporting waiver described in Sec.  380.22(d)(1) 
shall pay a $100 annual fee (the ``Proxy Fee'') to the Collective (for 
purposes of this subpart, the term ``Collective'' refers to 
SoundExchange, Inc.). The Minimum Fee for each year of the royalty 
period is:
    (1) 2021: $550;
    (2) 2022: $600;
    (3) 2023: $650;
    (4) 2024: $700; and
    (5) 2025: $750.
    (b) Consequences of unexpectedly exceeding ATH cap. In the case of 
a Noncommercial Educational Webcaster eligible to pay royalties under 
paragraph (a) of this section that unexpectedly makes total 
transmissions in excess of 159,140 ATH on any individual channel or 
station in any calendar month during the applicable calendar year:
    (1) The Noncommercial Educational Webcaster shall, for such month 
and the remainder of the calendar year in which such month occurs, pay 
royalties in accordance, and otherwise comply, with the provisions of 
subpart B of this part applicable to Noncommercial Webcasters;
    (2) The Minimum Fee paid by the Noncommercial Educational Webcaster 
for such calendar year will be credited to the amounts payable under 
the provisions of subpart B of this part applicable to Noncommercial 
Webcasters; and
    (3) The Noncommercial Educational Webcaster shall, within 45 days 
after the end of each month, notify the Collective if it has made total 
transmissions in excess of 159,140 ATH on a channel or station during 
that month; pay the Collective any amounts due under the provisions of 
subpart B of this part applicable to Noncommercial Webcasters; and 
provide the Collective a statement of account pursuant to subpart A of 
this part.
    (c) Royalties for other Noncommercial Educational Webcasters. A 
Noncommercial Educational Webcaster that is not eligible to pay 
royalties under paragraph (a) of this section shall pay royalties in 
accordance, and otherwise comply, with the provisions of subpart B of 
this part applicable to Noncommercial Webcasters.
    (d) Estimation of performances. In the case of a Noncommercial 
Educational Webcaster that is required to pay royalties under paragraph 
(b) or (c) of this section on a per-Performance basis, that is unable 
to calculate actual total performances, and that is not required to 
report actual total performances under Sec.  380.22(d)(3), the 
Noncommercial Educational Webcaster may pay its applicable royalties on 
an ATH basis, provided that the Noncommercial Educational Webcaster 
shall calculate such royalties at the applicable per-Performance rates 
based on the assumption that the number of sound recordings performed 
is 12 per hour. The Collective may distribute royalties paid on the 
basis of ATH hereunder in accordance with its generally applicable 
methodology for distributing royalties paid on such basis. In addition, 
and for the avoidance of doubt, a Noncommercial Educational Webcaster 
offering more than one channel or station shall pay per-Performance 
royalties on a per-channel or -station basis.
    (e) Allocation between ephemeral recordings and performance royalty 
fees. The Collective must credit 5% of all royalty payments as payment 
for Ephemeral Recordings and credit the remaining 95% to section 114 
royalties. All Ephemeral Recordings that a Licensee makes which are 
necessary and commercially reasonable for making Educational 
Transmissions are included in the 5%.


Sec.  380.22  Terms for making payment of royalty fees and statements 
of account.

    (a) Payment to the Collective. A Noncommercial Educational 
Webcaster shall make the royalty payments due under Sec.  380.21 to the 
Collective.
    (b) Minimum fee. Noncommercial Educational Webcasters shall submit 
the Minimum Fee, and Proxy Fee if applicable (see paragraph (d) of this 
section), accompanied by a statement of account, by January 31st of 
each calendar year, except that payment of the Minimum Fee, and Proxy 
Fee if applicable, by a Noncommercial Educational Webcaster that was 
not making Educational Transmissions or Ephemeral Recordings pursuant 
to the licenses in 17 U.S.C. 114 and/or 17 U.S.C. 112(e) as of January 
31st of each calendar year but begins doing so thereafter shall be due 
by the 45th day after the end of the month in which the Noncommercial 
Educational Webcaster commences doing so. At the same time the 
Noncommercial Educational Webcaster must identify all its stations 
making Educational Transmissions and identify which of the reporting 
options set forth in paragraph (d) of this section it elects for the 
relevant year (provided that it must be eligible for the option it 
elects).
    (c) Statements of account. Any payment due under paragraph (a) of 
this section shall be accompanied by a corresponding statement of 
account on a form provided by the Collective. A statement of account 
shall contain the following information:
    (1) The name of the Noncommercial Educational Webcaster, exactly as 
it appears on the notice of use, and if the statement of account covers 
a single station only, the call letters or name of the station;
    (2) The name, address, business title, telephone number, facsimile 
number (if any), electronic mail address (if any) and other contact 
information of the person to be contacted for information or questions 
concerning the content of the statement of account;
    (3) The signature of a duly authorized representative of the 
applicable educational institution;
    (4) The printed or typewritten name of the person signing the 
statement of account;
    (5) The date of signature;
    (6) The title or official position held by the person signing the 
statement of account;
    (7) A certification of the capacity of the person signing; and
    (8) A statement to the following effect: I, the undersigned duly 
authorized representative of the applicable educational institution, 
have examined this statement of account; hereby state that it is true, 
accurate, and complete to my knowledge after reasonable due diligence; 
and further certify that the licensee entity named herein qualifies as 
a Noncommercial Educational Webcaster for the relevant year, and did 
not exceed 159,140 total ATH in any month of the prior year for which 
the Noncommercial Educational Webcaster did not submit a statement of 
account and pay any required additional royalties.
    (d) Reporting by Noncommercial Educational Webcasters in general--
    (1) Reporting waiver. In light of the unique business and 
operational circumstances with respect to Noncommercial Educational 
Webcasters, and for the purposes of this subpart only, a Noncommercial 
Educational Webcaster that did not exceed 80,000 total ATH for any 
individual channel or station for more than one calendar month in the 
immediately preceding calendar year and that does not expect to exceed 
80,000 total ATH for any individual channel or station for any calendar 
month during the applicable calendar year may elect to pay to the 
Collective a nonrefundable, annual Proxy Fee of $100 in lieu of 
providing reports of use for the calendar year pursuant to the 
regulations at Sec.  370.4 of this chapter. In addition, a 
Noncommercial Educational Webcaster that unexpectedly exceeded 80,000 
total ATH on one or more

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channels or stations for more than one month during the immediately 
preceding calendar year may elect to pay the Proxy Fee and receive the 
reporting waiver described in this paragraph (d)(1) during a calendar 
year, if it implements measures reasonably calculated to ensure that it 
will not make Educational Transmissions exceeding 80,000 total ATH 
during any month of that calendar year. The Proxy Fee is intended to 
defray the Collective's costs associated with the reporting waiver in 
this paragraph (d)(1), including development of proxy usage data. The 
Proxy Fee shall be paid by the date specified in paragraph (b) of this 
section for paying the Minimum Fee for the applicable calendar year and 
shall be accompanied by a certification on a form provided by the 
Collective, signed by a duly authorized representative of the 
applicable educational institution, stating that the Noncommercial 
Educational Webcaster is eligible for the Proxy Fee option because of 
its past and expected future usage and, if applicable, has implemented 
measures to ensure that it will not make excess Educational 
Transmissions in the future.
    (2) Sample-basis reports. A Noncommercial Educational Webcaster 
that did not exceed 159,140 total ATH for any individual channel or 
station for more than one calendar month in the immediately preceding 
calendar year and that does not expect to exceed 159,140 total ATH for 
any individual channel or station for any calendar month during the 
applicable calendar year may elect to provide reports of use on a 
sample basis (two weeks per calendar quarter) in accordance with the 
regulations at Sec.  370.4 of this chapter, except that, 
notwithstanding Sec.  370.4(d)(2)(vi), such an electing Noncommercial 
Educational Webcaster shall not be required to include ATH or actual 
total performances and may in lieu thereof provide channel or station 
name and play frequency. Notwithstanding the preceding sentence, a 
Noncommercial Educational Webcaster that is able to report ATH or 
actual total performances is encouraged to do so. These reports of use 
shall be submitted to the Collective no later than January 31st of the 
year immediately following the year to which they pertain.
    (3) Census-basis reports. (i) If any of the conditions in 
paragraphs (d)(3)(i)(A) through (C) of this section is satisfied, a 
Noncommercial Educational Webcaster must report pursuant to paragraph 
(d)(3) of this section:
    (A) The Noncommercial Educational Webcaster exceeded 159,140 total 
ATH for any individual channel or station for more than one calendar 
month in the immediately preceding calendar year;
    (B) The Noncommercial Educational Webcaster expects to exceed 
159,140 total ATH for any individual channel or station for any 
calendar month in the applicable calendar year; or
    (C) The Noncommercial Educational Webcaster otherwise does not 
elect to be subject to paragraph (d)(1) or (2) of this section.
    (ii) A Noncommercial Educational Webcaster required to report 
pursuant to paragraph (d)(3)(i) of this section shall provide reports 
of use to the Collective quarterly on a census reporting basis in 
accordance with Sec.  370.4 of this chapter, except that, 
notwithstanding Sec.  370.4(d)(2), such a Noncommercial Educational 
Webcaster shall not be required to include ATH or actual total 
performances, and may in lieu thereof provide channel or station name 
and play frequency, during the first calendar year it reports in 
accordance with paragraph (d)(3) of this section. For the avoidance of 
doubt, after a Noncommercial Educational Webcaster has been required to 
report in accordance with paragraph (d)(3)(i) of this section for a 
full calendar year, it must thereafter include ATH or actual total 
performances in its reports of use. All reports of use under paragraph 
(d)(3)(i) of this section shall be submitted to the Collective no later 
than the 45th day after the end of each calendar quarter.
    (e) Server logs. Noncommercial Educational Webcasters shall retain 
for a period of no less than three full calendar years server logs 
sufficient to substantiate all information relevant to eligibility, 
rate calculation and reporting under this subpart. To the extent that a 
third-party Web hosting or service provider maintains equipment or 
software for a Noncommercial Educational Webcaster and/or such third 
party creates, maintains, or can reasonably create such server logs, 
the Noncommercial Educational Webcaster shall direct that such server 
logs be created and maintained by said third party for a period of no 
less than three full calendar years and/or that such server logs be 
provided to, and maintained by, the Noncommercial Educational 
Webcaster.
    (f) Terms in general. Subject to the provisions of this subpart, 
terms governing late fees, distribution of royalties by the Collective, 
unclaimed funds, record retention requirements, treatment of Licensees' 
confidential information, audit of royalty payments and distributions, 
and any definitions for applicable terms not defined in this subpart 
shall be those set forth in subpart A of this part.

    Dated: February 10, 2020.
Jesse M. Feder,
Chief Copyright Royalty Judge.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2020-03304 Filed 3-3-20; 8:45 am]
 BILLING CODE 1410-72-P