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 public broadcasters (radio). <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 certain public radio stations 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 June 16, 2025. </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 Copyright Royalty Judges (“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”), National Public Radio, Inc. (“NPR”), and the Corporation for Public Broadcasting (“CPB”)  <SU>1</SU> <FTREF/> each filed Petitions to Participate, as did others. <FTNT> <SU>1</SU>  NPR and CPB are participating on behalf of themselves, NPR's member and affiliated stations, and all public radio stations and entities eligible to receive funding from CPB. Public Broadcasting Entities Petition to Participate at 1 (Feb. 5, 2024). </FTNT> On April 18, 2025, the Judges received a joint motion stating that SoundExchange, NPR, and CPB (“Settling Parties”) had reached a partial settlement regarding rates and terms for certain internet transmissions and related ephemeral recordings made by NPR, American Public Media, Public Radio International, Public Radio Exchange, and certain public radio stations (“Public Broadcasters”) for 2026-2030 and seeking approval of that partial settlement. Joint Motion to Adopt Partial Settlement, Docket No. 23-CRB-0012-WR (2026-2030). <EXTRACT> On April 25, 2025, the Judges issued Order 46 To File Certification or Provide Settlement Agreements, Docket No. 23-CRB-0012-WR (2026-2030), which instructed the Settling Parties to certify that the Motion and the Proposed Regulations annexed to the Motion represent the full agreement of the Settling Parties, <E T="03">i.e.,</E> that there are no other related agreements and no other clauses. Order 46 further ordered that if such other agreements or clauses exist, the Settling Parties shall file them. </EXTRACT> <FP>Order 46 at 2.</FP> On April 30, 2025, the Settling Parties filed a Joint Response stating that “[t]he Proposed Regulations constituted the Settling Parties' complete agreement concerning statutory rates and terms. <E T="03">See</E> 17 U.S.C. 801(b)(7)(A). However, as is customary in any litigation settlement, the Settling Parties also agreed on procedures for filing and announcing their settlement, which were set forth in a Public Broadcaster Settlement Agreement entered into between SoundExchange and NPR/CPB as of April 16, 2025 (“Settlement Agreement”).” Joint Response of SoundExchange Inc., National Public Radio, Inc., and the Corporation for Public Broadcasting to Order 46. Docket No. 23-CRB-0012-WR (2026-2030) (“Joint Response”). Each of the Settling Parties certified that “the only other agreement between the Parties related to the Settlement is the Settlement Agreement.” Joint Response at 2. The Settlement Agreement is attached to the Joint Response as Exhibit D and “includes, at Paragraph 20, a merger clause, reflecting that the entirety of the Settling Parties' agreement is encompassed in the Settlement Agreement.” Joint Response at 2. Based upon the Judges' review of the Joint Response, its attachments, and the related submissions referenced therein, the Judges find no reason to doubt that Exhibit D to the Joint Response constitutes “the agreement” for purposes of Section 801(b)(7)(A). Exhibit D may be found on pages 15-43 of the Joint Response (eCRB no. 57679). The Judges hereby publish the Proposed Regulations and request comments from the public. <SU>2</SU> <FTREF/> <FTNT> <SU>2</SU>  The docket for this proceeding, including documents referenced in this document, may be accessed via the Electronic filing system eCRB at <E T="03">https://app.crb.gov</E> and perform a case search for docket 23-CRB-0012-WR (2026-2030). </FTNT> <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 and public broadcasters performing the sound recordings for the license period 2026-2030. <HD SOURCE="HD1">Proposed Adjustments to Rates and Terms</HD> The Settlement continues the structure of previous settlements between the parties, while increasing the payment to be made by CPB. Joint Motion at 3. Because the Settlement applies only to a closed group of licensees, and has only a single payor (CPB), the Settlement is being submitted to the Judges for adoption as a statutory rate and terms only so that it will be binding on all artists and copyright owners, including those that are not members of SoundExchange. Joint Motion at 3. The parties have agreed to continue their prior ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 26k characters. 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