Vol. 76 Wednesday, No. 46 March 9, 2011 Part II Library of Congress Copyright Royalty Board 37 CFR Part 380 Digital Performance Right in Sound Recordings and Ephemeral Recordings; Final Rule VerDate Mar<15>2010 16:23 Mar 08, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09MRR2.SGM 09MRR2 mstockstill on DSKH9S0YB1PROD with RULES2 13026 Federal Register / Vol. 76, No. 46 / Wednesday, March 9, 2011 / Rules and Regulations LIBRARY OF CONGRESS CRB DTRA, 72 FR 24084 (May 1, 2007) rates and terms,’’ the Judges ‘‘may consider (‘‘Webcaster II’’).1 This history was the rates and terms for comparable types of Copyright Royalty Board summarized by the United States Court digital audio transmission services and of Appeals for the District of Columbia comparable circumstances under voluntary 37 CFR Part 380 license agreements described in Circuit in Intercollegiate Broadcast subparagraph (A).’’ Id. § 114(f)(2)(B). [Docket No. 2009–1 CRB Webcasting III] System, Inc. v. Copyright Royalty Board, 574 F.3d 748, 753–54 (DC Cir. 2009), as Intercollegiate Broadcast System, Inc. v. Digital Performance Right in Sound follows: Copyright Royalty Board, 574 F.3d 748, Recordings and Ephemeral [Since the nineteenth century, the 753–54 (DC Cir. 2009). Recordings Copyright Act protected the performance Forty petitions to participate were right of ‘‘musical works’’ (the notes and lyrics filed in response to the January 5, 2009, AGENCY: Copyright Royalty Board, of a song), but not the ‘‘sound recording.’’ notice of commencement of the Library of Congress. Writers were protected but not performers.] proceeding. The great majority of the ACTION: Final rule and order. In 1995, Congress passed the Digital petitioners were webcasters. During the Performance Right in Sound Recordings Act. subsequent period of voluntary SUMMARY: The Copyright Royalty Judges Pub. L. No. 104–39, granting the owners of negotiations, settlements were reached are announcing their final sound recordings an exclusive right in among many of the parties. In addition determination of the rates and terms for performance ‘‘by means of a digital to the negotiation phase required in this two statutory licenses, permitting transmission.’’ 17 U.S.C. § 106(6); see Beethoven.com LLC v. Librarian of Cong., 394 proceeding, 17 U.S.C. 803(b)(3), certain digital performances of sound F.3d 939, 942 (D.C. Cir. 2005). The Digital Congress enacted the Webcaster recordings and the making of ephemeral Millennium Copyright Act of 1998, Pub. L. Settlement Acts of 2008 and 2009, recordings, for the period beginning No. 105–304, ‘‘created a statutory license in which expanded the opportunities to January 1, 2011, and ending on performances by webcast,’’ to serve Internet resolve the issues in this proceeding, as December 31, 2015. broadcasters and to provide a means of paying copyright owners. Beethoven.com, well as the issues in Webcaster II. This DATES: Effective Date: March 9, 2011. legislation further impacted Webcasting Applicability Dates: These rates and 394 F.3d at 942; see 17 U.S.C. § 114(d)(2), (f)(2). To govern the broadcast of sound III by permitting the settling parties to terms are applicable to the period recordings, Congress also created a licensing determine if the settlements could be January 1, 2011, through December 31, scheme for so-called ‘‘ephemeral’’ recordings, considered as evidence before the 2015. ‘‘the temporary copies necessary to facilitate Copyright Royalty Judges (‘‘Judges’’).2 FOR FURTHER INFORMATION CONTACT: the transmission of sound recordings during Eight settlements were resolved under Richard Strasser, Senior Attorney, or internet broadcasting.’’ Beethoven.com, 394 F.3d at 942–43; see 17 U.S.C. § 112(e)(4). the Webcaster Settlement Acts. 74 FR Gina Giuffreda, Attorney Advisor. 9293 (March 3, 2009) (three Telephone: (202) 707–7658. E-mail: Congress has delegated authority to set rates for these rights and licenses under agreements); 74 FR 34796 (July 17, [email protected]. several statutory schemes. The most recent, 2009) (one agreement); 74 FR 40614 SUPPLEMENTARY INFORMATION: passed in 2005 [sic], directed the Librarian of (August 12, 2009) (four agreements). Congress to appoint three Copyright Royalty The rates and terms under these I. Introduction Judges who serve staggered, six-year terms. settlements were the basis of A. Subject of the Proceeding See 17 U.S.C. § 801, et seq. These Judges approximately 95 percent of webcasting conduct complex, adversarial proceedings, This is a rate determination described in 17 U.S.C. § 803 and 37 CFR royalties paid to SoundExchange in 3 proceeding convened under 17 U.S.C. § 351, et seq., and ultimately set ‘‘reasonable 2008 and 2009. SX PFF at ¶¶ 50, 51. 803(b) et seq. and 37 CFR part 351 et rates and terms’’ for royalty payments from Evidence was presented in this seq., in accord with the Copyright digital performances. 17 U.S.C. § 114(f). proceeding by SoundExchange, Inc. Royalty Judges’ Notice announcing * * * Rates should ‘‘most clearly represent (‘‘SX’’), representing the owners, and the rates and terms that would have been three webcasters, College Broadcasters, commencement of proceeding, with a negotiated in the marketplace between a request for Petitions to Participate in a Inc. (‘‘CBI’’), Live365, Inc. (‘‘Live365’’), willing buyer and a willing seller.’’ Id. [17 and Intercollegiate Broadcasting System, proceeding to determine the rates and U.S.C. § 114(f)(2)(B)] ‘‘In determining such terms for the digital public performance rates and terms,’’ the Judges must ‘‘base of sound recordings by means of an [their] decision on economic, competitive 2 In the pleadings filed and during the testimony, eligible nonsubscription transmission or and programming information presented by Live365 attempted to introduce evidence about the parties.’’ Id. Specifically, they must agreements that contained provisions that they were a transmission made by a new not to be considered as precedential under the consider whether ‘‘the service may substitute subscription service under section 114 Webcaster Settlement Acts. Following the clear for or may promote the sales of of the Copyright Act, as amended by the language of the statute that these agreements were phonorecords’’ or otherwise affect the not ‘‘admissible as evidence or otherwise taken into Digital Millennium Copyright Act ‘‘copyright owner’s other streams of revenue.’’ account,’’ 17 U.S.C. 114(f)(5)(C), these attempts were (‘‘DMCA’’), and for the making of Id. § 114(f)(2)(B)(i). The Judges must also rejected. See, e.g., 4/19/10 Tr. at 210:9–10 ephemeral copies in furtherance of these consider ‘‘the relative roles of the copyright (sustaining objection to Live365’s motion to enter digital public performances under owner and the transmitting entity’’ with into evidence the ‘‘Pure Play Agreement’’). section 112, as created by the DMCA, respect to ‘‘relative creative contribution, 3 References to the proposed findings of fact and conclusions of law shall be cited as ‘‘PFF’’ or ‘‘PCL,’’ published at 74 FR 318 (January 5, technological contribution, capital investment, cost, and risk.’’ Id. § 114 respectively, and reply findings and conclusions of 2009). The rates and terms set in this law shall be cited as ‘‘RFF’’ or ‘‘RCL,’’ respectively, (f)(2)(B)(ii). Finally, ‘‘[i]n establishing such proceeding apply to the period of preceded by the name of the party that submitted January 1, 2011 through December 31, same and followed by the paragraph number. 1 The two prior webcasting proceedings often Similarly, references to the written direct testimony 2015. 17 U.S.C. 804(b)(3)(A). have been referred to informally as ‘‘Webcaster I’’ shall be cited as ‘‘WDT’’ preceded by the last name and ‘‘Webcaster II,’’ respectively, as opposed to the of the witness and followed by the page number. B. Statutory Background formal caption ‘‘DTRA’’ (which stands for ‘‘Digital Likewise, references to the written rebuttal A lengthy review of the history of the Transmissions Rate Adjustment’’). In the current testimony shall be cited as ‘‘WRT’’ preceded by the proceeding, we use the caption ‘‘Webcasting III’’ and last name of the witness followed by the page sound recordings compulsory license is intend to caption future webcasting proceedings number. References to the transcript shall be cited contained in the Final Determination for using the term ‘‘Webcasting’’ followed by the as ‘‘Tr.’’ preceded by the date and followed by the Rates and Terms in Docket No. 2005–1 appropriate Roman numeral. page number and the name of the witness. VerDate Mar<15>2010 16:23 Mar 08, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\09MRR2.SGM 09MRR2 mstockstill on DSKH9S0YB1PROD with RULES2 Federal Register / Vol. 76, No. 46 / Wednesday, March 9, 2011 / Rules and Regulations 13027 Inc. (‘‘IBS’’).4 CBI only presented royalty rates an opportunity to comment on royalty rate for the section 112 license evidence to support adoption of its the agreement and shall provide to is bundled with the fee for the section settlement with SoundExchange for participants in the proceeding under section 114 license. There is one additional noncommercial educational webcasters. 803(b)(2) that would be bound by the terms, rates, or other determination set by the term in the stipulation that was not SoundExchange and Live365 presented agreement an opportunity to comment on the included in Webcaster II. The royalty evidence related to commercial agreement and object to its adoption as a rate for the section 112 license is webcasters. The webcasting royalties basis for statutory terms and rates; and attributed to be 5% of the bundled paid by Live365 to SoundExchange for (ii) The Copyright Royalty Judges may royalties. There was no objection to the 2008 and 2009 were less than 3 percent decline to adopt the agreement as a basis for stipulation. There was evidence of total webcasting royalties paid to statutory terms and rates for participants that presented to support the minimum fee SoundExchange.