Determination of Rates and Terms for Public Broadcasting (PB III)

AGENCY:

Copyright Royalty Board (CRB), Library of Congress.

ACTION:

Final rule.

SUMMARY:

The Copyright Royalty Judges publish this final rule regarding rates and terms for use of certain works in connection with noncommercial broadcasting for the period commencing January 1, 2018, and ending on December 31, 2022.

DATES:

Effective date: This rule is effective on January 19, 2018.

Applicability dates: This rule applies to the license period January 1, 2018, through December 31, 2022.

ADDRESSES:

Docket: For access to the docket to read background documents or comments received, go to eCRB, the Copyright Royalty Board's electronic filing and case management system, at https://app.crb.gov/ and search for docket number 16-CRB-0002-PBR (2018-2022). For documents not yet uploaded to eCRB (because it is a new system), go to the agency website at https://www.crb.gov/ or contact the CRB Program Specialist.

FOR FURTHER INFORMATION CONTACT:

Anita Blaine, CRB Program Specialist, by telephone at (202) 707-7658 or email at crb@loc.gov.

SUPPLEMENTARY INFORMATION:

Background

Section 118 of the Copyright Act, title 17 of the United States Code, establishes a statutory license for the use of certain copyrighted works in connection with noncommercial television and radio broadcasting. 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 section 118 license. 17 U.S.C. 801(b)(1), 804(b)(6). In accordance with section 804(b)(6), on January 5, 2016, the Judges commenced the proceeding to set rates and terms for the period 2018 through 2022. 77 FR 71104.

Copyright owners and public broadcasting entities may negotiate rates and terms under the section 118 license for categories of copyrighted works and uses that would be binding on all owners and entities using the same license and submit them to the Judges for approval. 17 U.S.C. 801(b)(7)(A). The participants in the proceeding settled and submitted to the Judges proposed rates for the relevant categories and uses, which the Judges published in the Federal Register for comment on November 3, 2017. 82 FR 51589.

The Judges received two comments, a joint comment from participants ASCAP, BMI, NPR, PBS, and SESAC, and a comment from non-participant Global Music Rights, LLC (“GMR”).

The joint comment from participants proposed a revision to § 381.4(b) to conform it to §§ 381.5 and 381.6 by making explicit that the rates only apply to compositions not in the repertories of ASCAP, BMI, and SESAC. This change would ensure that, were a voluntary agreement to terminate within the license period, the statutory rate would not apply to compositions in the repertories of ASCAP, BMI, and SESAC. The Judges find the proposed revision is too late and they reject it for several reasons, including:

1. The proposed language was not sought by any party before the proposed regulations were published for public comment.

2. The proposed language is not in the current regulations.

3. The proposed regulation includes a rate for licenses that are not subject to a voluntary, negotiated agreement.

4. Extension, renewal, or renegotiation of any negotiated agreement to avoid the statutory rate is within the control of ASCAP, BMI, and SESAC.

Notwithstanding the agreement of all parties who allegedly might be affected by this late-proposed change, making this change would alter the proposed regulation without affording interested parties an opportunity for review and comment or objection.

The comment from GMR raised two concerns. GMR objects to a decrease in the § 381.4 rate for non-participants and requests the Judges keep the current rates and add a one-time cost of living adjustment. It also objects to leaving the §§ 381.5 and 381.6 rates for non-participants at the current level and requests the Judges revise it to match the increase in the SESAC rate.

GMR did not file a Petition to Participate in the proceeding. It is allowed to comment, but the Judges need not accept its comments as an “objection” to be weighed. The Judges respectfully acknowledge GMR's concerns, but those concerns cannot be a basis for the Judges to find that there is a reasonable objection to adoption of the rules. The Judges' ability to reject an agreement on the reasonableness of the rates and terms proposed therein is constrained by statute. Specifically, section 801(b)(7)(A)(ii) directs the Judges to adopt proposed agreed rates and terms unless a participant to the proceeding objects. The entity objecting to the proposed rates and terms at issue, GMR, did not file a timely petition to participate in this proceeding, and it does not qualify as a participant to the proceeding. Therefore, having received no objections to the reasonableness of the proposed rates and terms from a participant in this proceeding, the Copyright Royalty Judges adopt with one minor revision the final regulations as published on November 3, 2017, which set the rates and terms for the section 118 statutory license for the period 2018 through 2022.

List of Subjects in 37 CFR Part 381

• Copyright
• Music
• Radio
• Television
• Rates

Final Regulations

For the reasons set forth in the preamble, the Copyright Royalty Judges amend part 381 to chapter III of title 37 of the Code of Federal Regulations as set forth below:

PART 381—USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH NONCOMMERCIAL EDUCATIONAL BROADCASTING

1. The authority citation for part 381 continues to read as follows:

Authority: 17 U.S.C. 118, 801(b)(1) and 803.

2. In § 381.1, remove “2013” and in its place add “2018” and remove “2017” and in its place add “2022”.

3. Amend § 381.4 as follows:

a. Remove the introductory text;

b. Add introductory text to paragraph (a);

c. In paragraph (c), remove “2013” and in its place add “2018” and remove “2017” and in its place add “2022”; and

d. Remove paragraph (d).

The revision reads as follows:

4. Amend § 381.5 by revising paragraph (c) to read as follows:

5. Amend § 381.6 as follows:

a. Remove from the first sentence of paragraph (a) the words “which are”; and

b. Revise paragraph (d).

The revision reads as follows:

6. Amend § 381.7 as follows:

a. Revise paragraphs (b)(1)(i)(A) through (D) and (b)(1)(ii)(A) through (D);

b. Revise paragraph (b)(2)(i) through (iv); and

c. Revise paragraph (b)(4)(i) through (iii).

The revisions read as follows:

7. Amend § 381.10 as follows:

a. In paragraph (a), remove “2013” everywhere it appears and in its place add “2018” and remove “2012” and in its place add “2017”; and

b. Revise paragraph (b).

The revision reads as follows: