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Federal Internet Law & Policy
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IP: Webcasting Royalties Dont be a FOOL; The Law is Not DIY


"In March, the CRB drastically increased royalty rates for webcasters - starting retroactively at $0.0008 per song in 2006 and climbing to $0.0019 per song in 2010. Though it costs only fractions of a penny per song, the change amounts to a 300 percent cost increase for the largest webcasters and up to a 1200 percent increase for smaller operations. "This Titanic rate increase is simply untenable for many Internet radio broadcasters," said Inslee, a member of the House Energy and Commerce Subcommittee on Telecommunications and the Internet. - Lawmakers Hope to Prevent Demise of Internet Radio, Rep Jay Inslee (April 26, 2007)

Webcasters Settlement Act of 2008

The Copyright Arbitration Royalty Panel ( CARP ) had apparently agreed on music royalty rate agreement for webcasters that was a pig, and would have put webcasters in the Poor House. Therefore, Rep. Jay Inslee introduced the Webcaster Settlement Act which overrides the CARP decision, and allows the webcasters and the copyright owners to negotiate a new deal.

This had the support of both sides of the negotiating table - the webcasters and SoundExchange, which represents the copyright owners. But the National Association of Broadcasters opposed it . But after a few smoke filled, back room deals, the NAB relented and the legislation went through unanimously. It was sent to Still-President Bush and was signed into law on October 16, 2008.

Now everyone is happy (more or less):

The law itself is relatively simple. According to the Congressional Reports Summary :

"Webcaster Settlement Act of 2008 - Allows a receiving agent (designated by the Librarian of Congress to collect royalties that ultimately are disbursed to sound recording copyright owners and performers) to enter into agreements with webcasters that establish royalty terms for the performance of sound recordings over the Internet. Provides that such agreements, which may be effective for a period of up to 11 years following January 1, 2005, are to be binding on all copyright owners of sound recordings and other persons entitled to payment, in lieu of any determination of compulsory license rates by the Copyright Royalty Judges.

Terminates the authority to negotiate settlement agreements under this Act on February 15, 2009.

Declares that nothing in this Act (or any agreement entered into under this Act) shall be taken into account by the U.S. Court of Appeals for the District of Columbia Circuit in its review of the May 1, 2007 determination of royalty rates by the Copyright Royalty Judges."

H.R.7084
Title: To amend section 114 of title 17, United States Code, to provide for agreements for the reproduction and performance of sound recordings by webcasters.
Sponsor: Rep Inslee, Jay [WA-1] (introduced 9/25/2008)       Cosponsors (4)
Related Bills: S.3649
Latest Major Action: Became Public Law No: 110-435 [GPO: Text , PDF ]

President Bush Signs H.R. 2095, H.R. 6296, H.R. 6531, and H.R. 7084 , White House (Oct. 16, 2008)

Webcast Proceedings

Docket No. RM 2002-1D Comments Due Nov 24, 2003
Replies Due Dec 22, 2003

WEBCASTING NOTICE AND RECORDKEEPING FOR PAST PERFORMANCES

The Copyright Office is requesting public comment on what regulations it should adopt relating to records of use for past performances of sound recordings performed pursuant to the statutory license for public performances of sound recordings by means of digital audio transmissions (including webcasting) since October 28, 1998. These regulations will relate to performances that have taken place before the adoption of recordkeeping and reporting requirements that will be announced soon. Among other things, the Office wishes to know whether there are any proxies that may be used in lieu of actual reporting of past performances. Initial comments are due November 24, 2003. Reply comments are due December 22, 2003. The notice may be found at http://www.copyright.gov/fedreg/2003/68fr58054.html
http://www.copyright.gov/fedreg/2003/68fr58054.pdf

An original and five copies of any comment or reply comment shall be delivered by hand to: Office of the General Counsel, James Madison Memorial Building, Room LM-403, First and Independence Avenue, SE., Washington, DC 20559-6000; or mailed to: Copyright Arbitration Royalty Panel (CARP), PO Box 70977, Southwest Station, Washington, DC 20024-0977.

David O. Carson, General Counsel, or William J. Roberts, Jr., Senior Attorney, PO Box 70977, Southwest Station, Washington, DC 20024. Telephone: 707-8380; Telefax: 252-3423.
 

Docket No. RM 2000-3


Rulemaking to Determine Whether a Transmission of an AM or FM Radio Signal made over a Digital Communications Network by an FCC-licensed Broadcaster is Exempt from the Digital Performance Right

"The Copyright Office has amended its regulations to clarify that transmissions of an AM/FM broadcast signal over a digital communications network, such as the Internet, are subject to a sound recording copyright owner's exclusive right to perform his or her work publicly by means of digital audio transmissions.  Broadcasters who choose to transmit their radio signals over a digital communications network such as the Internet may do so under a compulsory license  The Office has determined that an FCC-licensed broadcaster is not exempt from a copyright owner's digital performance right for sound recordings under these circumstances.  Section 114(d)(1)(A) of title 17 of the United States Code exempts a noninteractive performance of a sound recording by means of a digital audio transmission from the sound recording copyright owner's exclusive rights when the performance is part of "a nonsubscription broadcast transmission." Section 114(j)(3) defines a broadcast transmission as "a transmission made by a terrestrial broadcast station licensed as such by the Federal Communications Commission. The Office concluded that for purposes of section 114, a "broadcast transmission" includes only over-the-air transmissions made by an FCC-licensed broadcaster under the terms of that license."  Copyright Office Webcast Webpage

 65 FR 77292  December 11, 2000.   PDFText

 
 
Notice Given Comments Due April 17
Replies due May 1
Comment
Appeals

Notice and Recordkeeping Requirements for Digital Transmissions of Sound Recordings under Statutory License (licensing fees for streaming media)

 
Docket No. RM 2000-4B


Denial of a Petition to Initiate a Rulemaking Proceeding

"The Copyright Office has denied a request from the Digital Media Association to initiate a rulemaking proceeding to decide whether a webcasting service becomes interactive when a consumer exerts some influence on the music programming offered by the service.  The Office declined to initiate the rulemaking because there is no discernable dispute on this point.  It did recognize, however, that the amount and type of influence a consumer has on the programming offered by the transmitting entity will affect whether the activity is characterized as interactive or noninteractive.  On this point, the Office determined that it would be unable to fashion a set of criteria or guidelines beyond those already set forth in the law" Copyright Office Webcast Webpage

 65 FR 77330  December 11, 2000. (corrected text)  PDFText
65 FR 78434  December 15, 2000 (notice of correction)  PDFText
Docket No. RM 2000-9 CARP DTRA 1&2.


Request for Notices of Intent to Participate and the Announcement of the Precontroversy Discovery Schedule
"The Copyright Office is engaged in an ongoing rate adjustment proceeding, the purpose of which is to set rates and terms for the section 114 statutory license.  Docket No. 99-6 CARP DTRA.   Because the outcome of the rulemaking on the scope of the exemption for broadcasters would have a significant impacton the identity of the parties to this rate adjustment proceeding, the Officedecided not to adopt a schedule for the precontroversy discovery period forthis proceeding until the rulemaking was concluded.  Order, Docket No. 99-6 CARP DTRA, March 21, 2000.  Now that the issue is resolved, the Copyright Office is requesting additional notices of intent to participate and announcing the schedule for this proceeding in a notice in the Federal Register.."  Copyright Office Webcast Webpage 65 FR 77393   December 11, 2000.  PDFText

 
 
Docket No. RM 2000-9 CARP DTRA 1&2. comments are due September 16, 2002
Decision Appealed

Order Consolidating CARP Proceedings to Determine Rates and Terms for Statutory License for Nonsubscription Digital Transmissions of Performances of Sound Recordings and Setting Schedule for Proceedings
Copyright Office Requests Comments on 1999, 2000, and 2001 Musical Works Funds Controversy and Notices of Intention to Participate in 1999, 2000, and 2001 Distribution of Musical Works Funds. The notices and the comments are due September 16, 2002., 

LOC Final Rule Determination of Reasonable Rates and Terms for the Digital Performance of Sound Recordings and Ephemeral Recordings; Final Rule (July 8, 2002), 

"The Library of Congress has ordered the consolidation of the Copyright Arbitration Royalty Panel (CARP) proceedings to establish rates and terms for (1) October 28, 1998, through December 31, 2000, and (2) January 1, 2001, through December 31, 2002, for the statutory licenses that allow public performances of sound recordings by means of eligible nonsubscription transmissions  (17 U.S.C. §114(f)(2)), and the making of an ephemeral phonorecord of a sound recording in furtherance of making a permitted public performance of the sound recording (17 U.S.C. §112(e).  The order also establishes a schedule for the consolidated proceedings.  All filings in the consolidated proceedings should be filed under the new docket number, Docket No. 2000-9 CARP DTRA 1&2."  Copyright Office Webcast Webpage

 Text

May 21 2002 LOC Must Act on Webcasting Royalties (CARP)

LOC Proceeding Website | LOC Carp Website

CARP Report

Webcasting Comments

Legislation
 

Law

Congress

Legislation

  • HR 2060, Internet Radio Equality Act
  • S.1353 : A bill to nullify the determinations of the Copyright Royalty Judges with respect to webcasting, to modify the basis for making such a determination, and for other purposes. Sponsor: Sen Wyden, Ron [OR] (introduced 5/10/2007)       Cosponsors (5)
    Committees: Senate Judiciary Latest Major Action: 5/10/2007 Referred to Senate committee. Status: Read twice and referred to the Committee on the Judiciary.

    • Hearings

    Government Activity

     
    Copyright Arbitration Royalty Panel (CARP) Information

    "The current CARP system consists of ad hoc arbitration panels that recommend the royalty rates and distribution of royalty fees collected under certain of the statutory licenses and set some of the terms and conditions of some of the statutory licenses. Each CARP is selected for a particular proceeding (examples: a rate adjustment for the cable statutory license; a distribution of digital audio recording technology funds) and has up to 180 days to deliver its recommendation for the rate adjustment or distribution, as the case may be."

    Date General Carp Information
    Dec. 30, 1999 Copyright Arbitration Royalty Panels; Rule and Regulations, Extension of comment period 
    Dec. 18, 1998 Proposed Amendments to Regulations Governing Conduct of CARP Proceedings
    Jun. 17, 1997 Determination of Statutory License Rates and Terms for Certain
    Jun. 2, 1997 Digital Subscriptions...Announcement of the Schedule for the proceeding
    May 16, 1995 Digital Audio Recording Devices and Media—Access to and Confidentiality of Statements of Account ...
    Nov. 29, 1994 Copyright Arbitration Royalty Panels—Rules and Regulations
    Feb. 7, 1995 Copyright Arbitration Royalty Panels; Corrections
    Feb. 7, 1995 Copyright Arbitration Royalty Panels; Corrections
    Jun. 22, 1994 CARP; Rules and Regulations: Final Rule and Corrections
    Apr. 7, 1994 New Post Office Boxes
    Dec. 17, 1993 Copyright Royalty Tribunal; Transfer and Adoption of Regulations
    Dec. 17, 1993 New Copyright Arbitration Royalty Panels Established


    Date Arbitrators
    Feb. 1, 2002 CARP; 2002-2003 List of Arbitrator Names PDF, TEXT
    Jan. 14, 2000 CARP; 2000-2001 List of Arbitrtor Names 
    May 11, 1999 Payment of Arbitrators; Distribution Proceedings 


    Date Reports of Copyright Arbitration Royalty Panels 
    Feb. 20, 2002 Webcasting Rates
    Apr. 16, 2001 Phase II Cable Royalty Distribution Report for 1993, 1994, 1995, 1996, and 1997 Cable Royalty Funds 
    Nov. 17, 2000 Distribution of DART Royalty Funds For 1995, 1996, 1997 and 1998  Version: 

     

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