[Federal Register Volume 79, Number 85 (Friday, May 2, 2014)]
[Rules and Regulations]
[Pages 25009-25010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-09799]



Copyright Royalty Board

37 CFR Part 370

[Docket No. RM 2008-7]

Notice and Recordkeeping for Use of Sound Recordings Under 
Statutory License

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Final rule; Affirmation.


SUMMARY: The Copyright Royalty Judges affirm adoption of the final 
regulation for filing notice of use and the delivery of records of use 
of sound recordings under two statutory licenses of the Copyright Act. 
The purpose of this affirmation is to remove any doubt about the 
effectiveness of the final regulation in light of a ruling by the 
United States Court of Appeals for the District of Columbia Circuit 
regarding the constitutionality of the manner in which the Copyright 
Royalty Judges were appointed.

DATES: Effective Date: May 2, 2014.

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

SUPPLEMENTARY INFORMATION: On October 6, 2006, the Copyright Royalty 
Judges (Judges) issued interim regulations published in the Federal 
Register for the delivery and format of reports of use of sound 
recordings for the statutory licenses set forth in sections 112 and 114 
of the Copyright Act. 71 FR 59010. The goal of those interim 
regulations was to establish format and delivery requirements for 
reports of use so that royalty payments to copyright owners pursuant to 
the section 112 and 114 licenses could be made from April 1, 2004, 
forward based upon actual data on the sound recordings transmitted by 
digital audio services. During the period after the Judges issued the 
interim regulations, the Judges monitored the operation of these 
regulations as well as developments in recordkeeping requirements 
agreed upon by parties to various settlements relating to the use of 
the section 112 and 114 licenses.
    On December 30, 2008, the Judges published a notice of proposed 
rulemaking (NPRM) setting forth proposed revisions to the interim 
regulations adopted in October 2006. 73 FR 79727. The most significant 
revision proposed by the Judges was to expand the reporting period to 
implement year-

[[Page 25010]]

round census reporting. Further, on April 8, 2009, the Judges published 
a notice of inquiry (NOI) to obtain additional information concerning 
the likely costs and benefits stemming from the adoption of the 
proposed census reporting provision as well as information on any 
alternatives to the proposal that might accomplish the same goals as 
the proposal in a less burdensome way, particularly with respect to 
small entities. 74 FR 15901.
    On October 13, 2009, the Judges published a final rule amending the 
interim regulations and establishing requirements for census reporting 
for all but those broadcasters who pay no more than the minimum fee for 
their use of the license. 74 FR 52418. The Judges adopted the 
regulations substantially as proposed in the NPRM with minor 
modifications in response to comments received. The final regulations 
established requirements by which copyright owners may receive 
reasonable notice of the use of their sound recordings and under which 
records of use were to be kept and made available by entities of all 
sizes performing sound recordings. See, e.g., 17 U.S.C. 114 (f)(4)(A). 
As with the interim regulations adopted in 2006, the final regulations 
adopted in 2009 represented baseline requirements. In other words, 
digital audio services remained free to negotiate other formats and 
technical standards for data maintenance and delivery and to use those 
in lieu of regulations adopted by the Judges, upon agreement with the 
Collective. The Judges indicated that they had no intention of 
codifying these negotiated variances in the future unless and until 
they come into such standardized use as to effectively supersede the 
existing regulations.
    On October 28, 2009, College Broadcasters, Inc. (CBI), American 
Council on Education and Intercollegiate Broadcasting Systems, Inc. 
(collectively, Petitioners) made a motion with the Judges for 
clarification with respect to one issue raised by the final regulation. 
Petitioners noted that the final regulation exempted minimum-fee 
webcasters that are FCC-licensed broadcasters from the census reporting 
requirement, but did not appear to exempt minimum-fee educational 
stations that are not FCC-licensed broadcasters from the same 
requirement. Petitioners asked the Judges to ``clarify'' that the 
exemption extended to minimum fee unlicensed educational stations.
    On November 12, 2009, before the Judges ruled on this motion, CBI 
filed a Petition for Review of the final regulation with the United 
States Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) (Appeal No. 09-1276). This appeal was held in abeyance pending 
the outcome of an appeal of the Judges' final determination in Docket 
No. 2009-1 CRB Webcasting III. The D.C. Circuit concluded that appeal 
on July 6, 2012, holding that the manner by which the Judges were 
appointed was unconstitutional, and dictating a statutory remedy. 
Intercollegiate Broad. Sys. v. Copyright Royalty Bd., 684 F.3d 1332, 
1340-41 (D.C. Cir. 2012), cert. denied, 133 S. Ct. 2735 (2013). The 
D.C. Circuit remanded the final determination to the Judges,\1\ and 
also transferred CBI's appeal to the United States District Court for 
the District of Columbia. See Order in Appeal No. 09-1276 (D.C. Cir. 
October 28, 2013).

    \1\ The Judges issued their Initial Determination on Remand in 
the Webcasting III proceeding, see Determination After Remand of 
Rates and Terms for Royalty Years 2011-2015, Docket No. 2009-1 CRB 
Webcasting III (Jan. 9, 2014).

    In light of the foregoing proceedings, the Judges recognize the 
need to clarify the effectiveness of the final regulation. 
Consequently, the Judges performed a de novo review of the comments 
underlying the final regulation and affirm the adoption of this 
regulation as published at 74 FR 52418 on October 11, 2009, in its 
entirety and without change (including the reasons set forth in the 
preamble thereto), thereby removing any doubt as to the effectiveness 
of the final regulation. Such affirmation also ensures the continuous 
effectiveness of the rules concerning notice and recordkeeping for 
users of copyrighted sound recordings.
    On October 21, 2013, the Judges received a petition from 
SoundExchange seeking modifications to the notice and recordkeeping 
final regulation. The Judges will address the Petitioner's motion for 
clarification, as well as SoundExchange's petition, in a separate 
notice also published today in the Federal Register.

List of Subjects in 37 CFR Part 370

    Copyright, Sound recordings.

Final Regulation

    For the reasons set forth in the foregoing preamble, the Copyright 
Royalty Judges affirm adoption of the final rule revising 37 CFR part 
370, which was published at 74 FR 52418 on October 13, 2009, without 

    Dated: February 20, 2014.
Suzanne M. Barnett,
Chief U.S. Copyright Royalty Judge.
James H. Billington,
Librarian of Congress.
[FR Doc. 2014-09799 Filed 5-1-14; 8:45 am]