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

LIBRARY OF CONGRESS <SUBAGY>Copyright Royalty Board</SUBAGY> <CFR>37 CFR Part 380</CFR> <DEPDOC>[Docket No 23-CRB-0012-WR (2026-2030)]</DEPDOC> <SUBJECT>Determination of Rates and Terms for Digital Performance of Sound Recordings and Making of Ephemeral Copies To Facilitate Those Performances (Web VI)</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Copyright Royalty Board (CRB), Library of Congress. <HD SOURCE="HED">ACTION:</HD> Proposed rule related to noncommercial educational webcasters. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Copyright Royalty Judges are publishing for comment proposed regulations 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, 2026, and ending on December 31, 2030. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments and objections, if any, are due November 12, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments using eCRB, the Copyright Royalty Board's online electronic filing application, at <E T="03">https://app.crb.gov/.</E> <E T="03">Instructions:</E> To send your comment through eCRB, if you don't have a user account, you will first need to register for an account and wait for your registration to be approved. Approval of user accounts is only available during business hours. Once you have an approved account, you can only sign in and file your comment after setting up multi-factor authentication, which can be done at any time of day. All comments must include the Copyright Royalty Board name and the docket number for this proposed rule. All properly filed comments will appear without change in eCRB at <E T="03">https://app.crb.gov,</E> including any personal information provided. <E T="03">Docket:</E> 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 <E T="03">https://app.crb.gov/,</E> and search for docket number 23-CRB-0012-WR (2026-2030). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Anita Brown, CRB Program Specialist, at (202) 707-7658 or <E T="03">crb@loc.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> Section 114 of the Copyright Act, title 17 of the United States Code, provides a statutory license that allows for the public performance of sound recordings by means of a digital audio transmission by, among others, eligible nonsubscription transmission services. 17 U.S.C. 114(f). For purposes of the section 114 license, an “eligible nonsubscription transmission” is a noninteractive digital audio transmission that does not require a subscription for receiving the transmission. The transmission must also be made as part of a service that provides audio programming consisting in whole or in part of performances of sound recordings the purpose of which is to provide audio or other entertainment programming, but not to sell, advertise, or promote particular goods or services. <E T="03">See</E> 17 U.S.C. 114(j)(6). Services using the section 114 license may need to make one or more temporary or “ephemeral” copies of a sound recording to facilitate the transmission of that recording. The section 112 statutory license allows for the making of these ephemeral reproductions. 17 U.S.C. 112(e). Chapter 8 of the Copyright Act requires the Judges to conduct proceedings every five years to determine the rates and terms for the sections 114 and 112 statutory licenses. 17 U.S.C. 801(b)(1), 804(b)(3)(A). The current proceeding commenced in January 2024 for rates and terms that will become effective on January 1, 2026, and end on December 31, 2030. Pursuant to section 804(b)(3)(A), the Judges published in the <E T="04">Federal Register</E> a notice commencing the proceeding and requesting that interested parties submit their petitions to participate. 89 FR 812 (Jan. 5, 2024). SoundExchange, Inc. (“SoundExchange”), and College Broadcasters, Inc. (“CBI”) each filed Petitions to Participate, as did others. On September 13, 2024, the Copyright Royalty Judges (Judges) received a joint motion from SoundExchange and CBI to adopt a partial settlement of their interests regarding <E T="03">Web VI</E> rates and terms for 2026-2030 and seeking approval of that partial settlement. Joint Motion to Adopt Partial Settlement, Docket No. 23-CRB-0012-WR (2026-2030). Their interests concern the rule setting copyright royalty minimum fees and terms that the Judges will establish for compulsory copyright licenses for certain internet transmissions of sound recordings by college radio stations and other noncommercial educational webcasters for the period from January 1, 2026, through December 31, 2030. SoundExchange represents the interests of sound recording copyright owners and performers. CBI represents the interests of users of the copyrighted material which users include college, university, and high school radio and television stations and other electronic media organizations. The Judges hereby publish the proposal and request comments from the public. <HD SOURCE="HD1">Statutory Timing of Adoption of Rates and Terms</HD> Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to adopt royalty 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 Judges for approval. The Judges must provide “an opportunity to comment on the agreement” to participants and non-participants in the rate proceeding who “would be bound by the terms, rates, or other determination set by any agreement. . . .” 17 U.S.C. 801(b)(7)(A)(i). Participants in the proceeding may also “object to [the agreement's] adoption as a basis for statutory terms and rates.” <E T="03">Id.</E> 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), or where the negotiated agreement includes provisions that are contrary to the provisions of the applicable license(s) or otherwise contrary to statutory law. <E T="03">See</E> Scope of the Copyright Royalty Judges Authority to Adopt Confidentiality Requirements upon Copyright Owners within a Voluntarily Negotiated License Agreement, 78 FR 47421, 47422 (Aug. 5, 2013), citing 74 FR 4537, 4540 (Jan. 26, 2009). Any rates and terms adopted pursuant to this provision would be binding on all copyright owners of sound recordings, college radio stations, and other noncommercial educational webcasters performing the sound recordings for the license period 2026-2030. <HD SOURCE="HD1">Proposed Adjustments to Rates and Terms</HD> According to SoundExchange and CBI, the agreement generally continues in effect the current provisions of 37 CFR part 380, subpart C, which were themselves adopted pursuant to 17 U.S.C. 801(b)(7)(A) as part of the <E T="03">Web V</E> proceeding, with four primary changes: (1) the minimum fee applicable to noncommercial educational webcasters will increase by $50 per year throughout the rate period; (2) the threshold for usage covered by the minimum fee is increased from 159,140 Aggregate Tuning Hours (“ATH”) to 160,000 ATH; (3) the reporting and payment period applicable in the event a Noncommercial Educational Webcaster makes total transmissions in excess of 160,000 ATH in a given month is reduced from 45 days to 30 days; and (4) a clarification concerning the counting of channels and stations has been added. Joint Motion at 6. Those who would be bound by the terms, rates, or other determination set by the agreement may comment on, and proceeding participants may object to, any or all of the proposed regulations contained in this document. Such comments and objections must be submitted no later than November 12, 2024. <LSTSUB> <HD SOURCE="HED">List of Subjects in 37 CFR Part 380</HD> Copyright, Sound recordings, Webcasters. </LSTSUB> <HD SOURCE="HD1">Proposed Regulations</HD> For the reasons set forth in the preamble, the Copyright Royalty Judges propose to amend 37 CFR part 380 as follows: <HD SOURCE="HED">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</HD> 1. The authority citation for part 380 continues to read as follows: <HD SOURCE="HED">Authority:</HD> 17 U.S.C. 112(e), 114(f), 804(b)(3). 2. Revise subpart C to read as follows: <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart C—Noncommercial Educational Webcasters</HD> <SECHD>Sec.</SECHD> <SECTNO>380.20</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>380.21</SECTNO> <SUBJECT>Royalty fees for the public performance of sound recordings and for ephemeral recordings.</SUBJECT> <SECTNO>380.22</SECTNO> <SUBJECT>Terms for making payment of royalty fees and statements of account.</SUBJECT> </SUBPART> </CONTENTS> <SECTION> <SECTNO>§ 380.20</SECTNO> <SUBJECT>Definitions.</SUBJECT> For purposes of this subpart, the following definitions apply, as well as those set forth in subpart A of this part: <E T="03">Educational Transmission</E> means an eligible nonsubscription transmission (as defined in 17 U.S.C. 114(j)(6)) made by a Noncommercial Educational Webcaster over the internet. <E T="03">Noncommercial Educational Webcaster</E> means a noncommercial webcaster (as defined i ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 26k characters. 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