[Federal Register Volume 74, Number 154 (Wednesday, August 12, 2009)]
[Notices]
[Pages 40614-40628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19299]
[[Page 40614]]
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LIBRARY OF CONGRESS
Copyright Office
Notification of Agreements Under the Webcaster Settlement Act of
2009
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of agreements.
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SUMMARY: The Copyright Office is publishing four agreements which set
rates and terms for the reproduction and performance of sound
recordings made by certain webcasters under two statutory licenses.
Webcasters who meet the eligibility requirements may choose to operate
under the statutory licenses in accordance with the rates and terms set
forth in the agreements published herein rather than the rates and
terms of any determination by the Copyright Royalty Judges.
FOR FURTHER INFORMATION CONTACT: Stephen Ruwe, Attorney Advisor, or
Tanya M. Sandros, Deputy General Counsel, Copyright Office, GC/I&R,
P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707-8380.
Telefax: (202) 707-8366. See the final paragraph of the SUPPLEMENTARY
INFORMATION for information on where to direct questions regarding the
rates and terms set forth in the agreement.
SUPPLEMENTARY INFORMATION: On June 30, 2009, President Obama signed
into law the Webcaster Settlement Act of 2009 (``WSA''), Public Law
111-36, which amends section 114 of the Copyright Act, title 17 of the
United States Code, as it relates to webcasters. Section 114(f)(5) as
amended by the WSA allows SoundExchange, the Receiving Agent designated
by the Librarian of Congress in his June 20, 2002, order for collecting
royalty payments made by eligible nonsubscription transmission services
under the section 112 and section 114 statutory licenses, see 67 FR
45239 (July 8, 2002), to enter into agreements on behalf of all
copyright owners and performers to set rates, terms and conditions for
webcasters operating under the section 112 and section 114 statutory
licenses for a period of not more than 11 years beginning on January 1,
2005. The authority to enter into such settlement agreements expired at
11:59 p.m. Eastern time on July 30, 2009, the 30th day after the
enactment of the WSA.
Unless otherwise agreed to by the parties, the rates and terms set
forth in the agreement apply only to the time periods specified in the
agreement and have no precedential value in any proceeding concerned
with the setting of rates and terms for the public performance or
reproduction in ephemeral phonorecords. To make this point clear,
Congress included language expressly addressing the precedential value
of agreements made under the WSA. Specifically, section 114(f)(5)(C),
states that: ``Neither subparagraph (A) nor any provisions of any
agreement entered into pursuant to subparagraph (A), including any rate
structure, fees, terms, conditions, or notice and recordkeeping
requirements set forth therein, shall be admissible as evidence or
otherwise taken into account in any administrative, judicial, or other
government proceeding involving the setting or adjustment of the
royalties payable for the public performance or reproduction in
ephemeral recordings or copies of sound recordings, the determination
of terms or conditions related thereto, or the establishment of notice
and recordkeeping requirements by the Copyright Royalty Judges under
paragraph (4) or section 112(e)(4). It is the intent of Congress that
any royalty rates, rate structure, definitions, terms, conditions, or
notice and recordkeeping requirements, included in such agreements
shall be considered as a compromise motivated by the unique business,
economic and political circumstances of webcasters, copyright owners,
and performers rather than as matters that would have been negotiated
in the marketplace between a willing buyer and a willing seller, or
otherwise meet the objectives set forth in section 801(b). This
subparagraph shall not apply to the extent that the receiving agent and
a webcaster that are party to an agreement entered into pursuant to
subparagraph (A) expressly authorize the submission of the agreement in
a proceeding under this subsection.'' 17 U.S.C. 114(f)(5)(C) (2009).\1\
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\1\ Appendix A (Section 5.3) & Appendix B (Section 6.2)
expressly authorize the submission of the relevant agreements in a
proceeding under 17 U.S.C. 114(f).
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On July 30, 2009, SoundExchange notified the Copyright Office that
it had negotiated four separate agreements for the reproduction and
performance of sound recordings by certain webcasters under the section
112 and section 114 statutory licenses. Thus, in accordance with the
requirement set forth in section 114(f)(5)(B), the Copyright Office is
publishing the submitted agreements, as Appendix A (Agreement with
Sirius XM Radio Inc.); Appendix B (Agreement with College Broadcasters,
Inc.); Appendix C (Agreement with the Corporation for Public
Broadcasting); and Appendix D (Agreement with Northwestern College),
thereby making the rates and terms in the agreements available to any
webcasters meeting the respective eligibility conditions of the
agreements as an alternative to the rates and terms of any
determination by the Copyright Royalty Judges.
The Copyright Office has no responsibility for administering the
rates and terms of the agreements beyond the publication of this
notice. For this reason, questions regarding the rates and terms set
forth in the agreements should be directed to SoundExchange (for
contact information, see http://www.soundexchange.com).
Dated: August 5, 2009.
Marybeth Peters,
Register of Copyrights.
Note: The following Appendix Will Not Be Codified in the Code of
Federal Regulations.
Appendix A--Agreed Rates and Terms for Webcasts by Commercial
Webcasters
Article 1--Definitions
1.1 General. In general, words used in the rates and terms set
forth herein (the ``Rates and Terms'') and defined in 17 U.S.C.
112(e) or 114 or 37 CFR Part 380 shall have the meanings specified
in those provisions as in effect on the date hereof, with such
exceptions or clarifications set forth in Section 1.2.
1.2 Additional Definitions
(a) ``Commercial Webcaster'' shall mean a webcaster as defined
in 17 U.S.C. 114(f)(5)(E)(iii) that (i) has obtained a compulsory
license under 17 U.S.C. 112(e) and 114 and the implementing
regulations therefor to make Eligible Transmissions and related
ephemeral recordings; (ii) complies with all applicable provisions
of Sections 112(e) and 114 and applicable regulations; (iii) is not
a Broadcaster (as defined in Section 1.2(a) of the agreement
published in the Federal Register on March 3, 2009 at 74 FR 9299);
(iv) is not a noncommercial webcaster as defined in 17 U.S.C.
114(f)(5)(E)(i); and (v) has not elected to be subject to any other
rates and terms adopted pursuant to the Webcaster Settlement Act of
2008 or the Webcaster Settlement Act of 2009.
(b) ``Eligible Transmission'' shall mean an eligible
nonsubscription transmission, or a transmission through a new
subscription service, made by a Commercial Webcaster over the
Internet, that is in full compliance with the eligibility and other
requirements of Sections 112(e) and 114 of the Copyright Act and
their implementing regulations, except as expressly modified in
these Rates and Terms, and of a type otherwise subject to the
payment of royalties under 37 CFR Part 380.
(c) ``SoundExchange'' shall mean SoundExchange, Inc. and shall
include its successors and assigns.
Article 2--Agreement Pursuant to Webcaster Settlement Act of 2009
2.1 Availability of Rates and Terms. Pursuant to the Webcaster
Settlement Act of
[[Page 40615]]
2009, and subject to the provisions set forth below, Commercial
Webcasters may elect to be subject to these Rates and Terms in their
entirety, with respect to such Commercial Webcasters' Eligible
Transmissions and related ephemeral recordings, for all of the
period beginning on January 1, 2009, and ending on December 31,
2015, in lieu of other rates and terms from time to time applicable
under 17 U.S.C. 112(e) and 114, by complying with the procedure set
forth in Section 2.2 hereof. Any person or entity that does not
satisfy the eligibility criteria to be a Commercial Webcaster must
comply with otherwise applicable rates and terms.
2.2 Election Process in General. To elect to be subject to these
Rates and Terms, in lieu of any royalty rates and terms that
otherwise might apply under 17 U.S.C. 112(e) and 114, for all of the
period beginning on January 1, 2009, and ending on December 31,
2015, a Commercial Webcaster shall submit to SoundExchange a
completed and signed election form (available on the SoundExchange
Web site at http://www.soundexchange.com) by the later of (i) 15
days after publication of these Rates and Terms in the Federal
Register; or (ii) in the case of a Commercial Webcaster that is not
making Eligible Transmissions as of the publication of these Rates
and Terms in the Federal Register but begins doing so at a later
time, 30 days after the Commercial Webcaster begins making such
Eligible Transmissions. Notwithstanding anything else in these Rates
and Terms, a person or entity otherwise qualifying as a Commercial
Webcaster that is participating in any way in any appeal of the
Final Determination of the Copyright Royalty Judges concerning
royalty rates and terms under Sections 112(e) and 114 of the
Copyright Act for the period January 1, 2006, through December 31,
2010 published in the Federal Register at 72 FR 24084 (May 1, 2007)
(the ``Final Determination''), any proceedings on remand from such
appeal, Docket No. 2009-1 CRB Webcasting III, as noticed in the
Federal Register at 74 FR 318-19 (Jan. 5, 2009), or any other
proceedings to determine royalty rates and terms for Eligible
Transmissions (as defined in Section 1.2(b)) or related ephemeral
phonorecords under Section 112(e) or 114 of the Copyright Act for
all or any part of the period January 1, 2006, through December 31,
2015 shall not have the right to elect to be treated as a Commercial
Webcaster or claim the benefit of these Rates and Terms, unless it
withdraws from such proceedings prior to submitting to SoundExchange
a completed and signed election form as contemplated by this Section
2.2.
2.3 Representation of Compliance and Non-waiver. By electing to
operate pursuant to these Rates and Terms, an entity represents and
warrants that it qualifies as a Commercial Webcaster. By accepting
an election by a transmitting entity or payments or reporting made
pursuant to these Rates and Terms, SoundExchange does not
acknowledge that the transmitting entity qualifies as a Commercial
Webcaster or that it has complied with the eligibility or other
requirements of the statutory licenses under Sections 112(e) and 114
of the Copyright Act (including these Rates and Terms). It is the
responsibility of each transmitting entity to ensure that it is in
full compliance with applicable requirements of the statutory
licenses under Sections 112(e) and 114 of the Copyright Act.
SoundExchange is not in a position to, and does not, make
determinations as to whether each of the many services that rely on
the statutory licenses is eligible for statutory licensing or any
particular royalty payment classification, nor does it continuously
verify that such services are in full compliance with all applicable
requirements. Accordingly, a Commercial Webcaster agrees that
SoundExchange's acceptance of its election, payment or reporting
does not give or imply any acknowledgment that it is in compliance
with the requirements of the statutory licenses (including these
Rates and Terms) and shall not be used as evidence that it is in
compliance with the requirements of the statutory licenses
(including these Rates and Terms). SoundExchange and copyright
owners reserve all their rights to take enforcement action against a
transmitting entity that is not in compliance with all applicable
requirements.
Article 3--Scope
3.1 In General. Commercial Webcasters that have made a timely
election to be subject to these Rates and Terms as provided in
Section 2.2 are entitled to publicly perform sound recordings within
the scope of the statutory license provided by Section 114 by means
of Eligible Transmissions, and to make related ephemeral recordings
for use solely for purposes of such Eligible Transmissions within
the scope of Section 112(e), in accordance with and subject to the
limitations set forth in these Rates and Terms and in strict
conformity with the provisions of 17 U.S.C. 112(e) and 114 and their
implementing regulations, in lieu of other rates and terms from time
to time applicable under 17 U.S.C. 112(e) and 114, for all of the
period beginning on January 1, 2009, and ending on December 31,
2015.
3.2 Applicability to All Eligible Services Operated by or for a
Commercial Webcaster. If a Commercial Webcaster has made a timely
election to be subject to these Rates and Terms as provided in
Section 2.2, these Rates and Terms shall apply to all Eligible
Transmissions made by or for the Commercial Webcaster.
3.3 No Implied Rights. These Rates and Terms extend only to
electing Commercial Webcasters and grant no rights, including by
implication or estoppel, to any other person or except as
specifically provided herein. Without limiting the generality of the
foregoing, these Rates and Terms do not grant (i) any copyright
ownership interest in any sound recording; (ii) any trademark or
trade dress rights; (iii) any rights outside the United States (as
defined in 17 U.S.C. 101); (iv) any rights of publicity or rights to
any endorsement by SoundExchange or any other person; or (v) any
rights with respect to performances or reproductions outside the
scope of these Rates and Terms or the statutory licenses under 17
U.S.C. 112(e) and 114.
Article 4--Royalties
4.1 Minimum Fees. Each Commercial Webcaster will pay an annual,
nonrefundable minimum fee of $500 for each of its individual
channels, including each of its individual side channels, and each
of its individual stations, through which (in each case) it makes
Eligible Transmissions, for each calendar year or part of a calendar
year during 2009-2015 during which the Commercial Webcaster is a
licensee pursuant to licenses under 17 U.S.C. 112(e) and 114,
provided that a Commercial Webcaster shall not be required to pay
more than $50,000 in minimum fees in the aggregate (for 100 or more
channels or stations) in any one year. Upon payment of the minimum
fee, the Commercial Webcaster will receive a credit in the amount of
the minimum fee against any royalties payable for the same calendar
year for the same channel or station.
4.2 Royalty Rates. Royalties for Eligible Transmissions made
pursuant to 17 U.S.C. 114, and the making of related ephemeral
recordings pursuant to 17 U.S.C. 112(e), shall be payable on a per-
performance basis, as follows:
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Rate per
Year performance
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2009.................................................... $0.0016
2010.................................................... 0.0017
2011.................................................... 0.0018
2012.................................................... 0.0020
2013.................................................... 0.0021
2014.................................................... 0.0022
2015.................................................... 0.0024
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4.3 Ephemeral Royalty. The royalty payable under 17 U.S.C.
112(e) for any ephemeral reproductions made by a Commercial
Webcaster and covered hereby is deemed to be included within the
royalty payments set forth above. SoundExchange may allocate
payments hereunder between the statutory licenses under Sections
112(e) and 114 in the same manner as statutory webcasting royalties
for the period 2011-2015.
4.4 Payment. Payments of all amounts specified in these Rates
and Terms shall be made to SoundExchange. Minimum fees shall be paid
by January 31 of each year. Once a Commercial Webcaster's royalty
obligation under Section 4.2 with respect to a channel or station
for a year exceeds the minimum fee it has paid for that channel or
station and year, thereby recouping the credit provided by Section
4.1, the Commercial Webcaster shall make monthly payments at the
per-performance rates provided in Section 4.2 beginning with the
month in which the minimum fee first was recouped.
4.5 Monthly Obligations. Commercial Webcasters must make monthly
payments where required by Section 4.4 and provide statements of
account and reports of use, for each month on the 45th day following
the end of the month in which the Eligible Transmissions subject to
the payments, statements of account, and reports of use were made.
4.6 Past Periods. Notwithstanding Sections 4.4 and 4.5, a
Commercial Webcaster's first monthly payment after
[[Page 40616]]
electing to be subject to these Rates and Terms shall be adjusted to
reflect any differences between (i) the amounts payable under these
Rates and Terms for all of 2009 to the end of the month for which
the payment is made and (ii) the Commercial Webcaster's previous
payments for all of 2009 to the end of the month for which the
payment is made. Late fees under 37 CFR 380.4(e) shall apply to any
payment previously due and not made on time, or to any late payment
hereunder.
Article 5--Additional Provisions
5.1 Applicable Regulations. To the extent not inconsistent with
the Rates and Terms herein, all applicable regulations, including 37
CFR Parts 370 and 380, shall apply to activities subject to these
Rates and Terms.
5.2 Participation in Specified Proceedings. A Commercial
Webcaster that elects to be subject to these Rates and Terms agrees
that it has elected to do so in lieu of any different statutory
rates and terms that may otherwise apply during any part of the
2009-2015 period and in lieu of participating at any time in a
proceeding to set rates and terms for Eligible Transmissions and
related ephemeral recordings for any part of the 2006-2015 period.
Thus, once a Commercial Webcaster has elected to be subject to these
Rates and Terms, it shall not at any time participate as a party,
intervenor, amicus curiae or otherwise, or give evidence or
otherwise support or assist, in Intercollegiate Broadcasting Sys. v.
Copyright Royalty Board (DC Circuit Docket Nos. 07-1123, 07-1168,
07-1172, 07-1173, 07-1174, 07-1177, 07-1178, 07-1179), any
proceedings on remand from such appeal, Digital Performance Right in
Sound Recordings and Ephemeral Recordings (Copyright Royalty Judges'
Docket No. 2009-1 CRB Webcasting III), or any other proceedings to
determine royalty rates and terms for Eligible Transmissions and
reproduction of related ephemeral phonorecords under Section 112(e)
or 114 of the Copyright Act for all or any part of the period 2006-
2015, including any appeal of the foregoing or any proceedings on
remand from such an appeal, unless subpoenaed on petition of a third
party (without any action by a Commercial Webcaster to encourage or
suggest such a subpoena or petition) and ordered to testify or
provide documents in such proceeding.
5.3 Use of Agreement in Future Proceedings. Pursuant to 17
U.S.C. 114(f)(5)(C), submission of these Rates and Terms in a
proceeding under 17 U.S.C. 114(f) is expressly authorized.
5.4 Effect of Direct Licenses. Any copyright owner may enter
into a voluntary agreement with any Commercial Webcaster setting
alternative rates and terms governing the Commercial Webcasters'
transmission of copyrighted works owned by the copyright owner, and
such voluntary agreement may be given effect in lieu of the Rates
and Terms set forth herein.
Article 6--Miscellaneous
6.1 Acknowledgement. The parties acknowledge this agreement was
entered into knowingly and willingly. The parties further
acknowledge that any transmission made by a Commercial Webcaster in
violation of these Rates and Terms or Section 112(e) or 114 or their
implementing regulations (except to the extent such implementing
regulations are inconsistent with these Rates and Terms), outside
the scope of these Rates and Terms or Section 112(e) or 114, or
after the expiration or termination of these Rates and Terms shall
be fully subject to, among other things, the copyright owners'
rights under 17 U.S.C. 106 and the remedies in 17 U.S.C. 501-506,
and all limitations, exceptions and defenses available with respect
thereto.
6.2 Applicable Law and Venue. These Rates and Terms shall be
governed by, and construed in accordance with, the laws of the
District of Columbia (without giving effect to conflicts of law
principles thereof). All actions or proceedings arising directly or
indirectly from or in connection with these Rates and Terms shall be
litigated only in the United States District Court for the District
of Columbia located in Washington, DC. SoundExchange and Commercial
Webcasters consent to the jurisdiction and venue of the foregoing
court, waive any objection thereto on forum non conveniens or
similar grounds, and consent that any process or notice of motion or
other application to said court or a judge thereof may be served
inside or outside the District of Columbia by registered mail,
return receipt requested, directed to the person for which it is
intended at its last known address (and service so made shall be
deemed complete five (5) days after the same has been posted as
aforesaid) or by personal service or in such other manner as may be
permissible under the rules of that court.
6.3 Rights Cumulative. The rights, remedies, limitations, and
exceptions provided in these Rates and Terms and available under
applicable law shall be cumulative and shall not preclude assertion
by any party of any other rights, defenses, limitations, or
exceptions or the seeking of any other remedies against another
party hereto. These Rates and Terms shall not constitute a waiver of
any violation of Section 112 or 114 or their implementing
regulations. No failure to exercise and no delay in exercising any
right, power or privilege shall operate as a waiver of such right,
power or privilege. No single or partial exercise of any right,
power or privilege granted under these Rates and Terms or available
under applicable law shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No
waiver by any party of full performance by another party in any one
or more instances shall be a waiver of the right to require full and
complete performance of these Rates and Terms and of obligations
under applicable law thereafter.
6.4 Entire Agreement. These Rates and Terms represent the entire
and complete agreement between SoundExchange and a Commercial
Webcaster with respect to their subject matter and supersede all
prior and contemporaneous agreements and undertakings of
SoundExchange and a Commercial Webcaster with respect to the subject
matter hereof.
Appendix B--Agreed Rates and Terms for Noncommercial Educational
Webcasters
Article 1--Definitions
1.1 General. In general, words used in the rates and terms set
forth herein (the ``Rates and Terms'') and defined in 17 U.S.C.
112(e) or 114 or 37 CFR Part 380 shall have the meanings specified
in those provisions as in effect on the date hereof, with such
exceptions or clarifications set forth in Section 1.2.
1.2 Additional Definitions
1.2.1 ``Noncommercial Educational Webcaster'' shall mean a
Noncommercial Webcaster (as defined in 17 U.S.C. 114(f)(5)(E)(i))
that (i) has obtained a compulsory license under 17 U.S.C. 112(e)
and 114 and the implementing regulations therefor to make Eligible
Transmissions and related ephemeral recordings; (ii) complies with
all applicable provisions of Sections 112(e) and 114 and applicable
regulations; (iii) is directly operated by, or is affiliated with
and officially sanctioned by, and the digital audio transmission
operations of which are staffed substantially by students enrolled
at, a domestically-accredited primary or secondary school, college,
university or other post-secondary degree-granting educational
institution, and (iv) is not a ``public broadcasting entity'' (as
defined in 17 U.S.C. 118(g)) qualified to receive funding from the
Corporation for Public Broadcasting pursuant to the criteria set
forth in 47 U.S.C. 396.
1.2.2 ``Eligible Transmission'' shall mean an eligible
nonsubscription transmission made by a Noncommercial Educational
Webcaster over the Internet.
1.2.3 ``SoundExchange'' shall mean SoundExchange, Inc. and shall
include its successors and assigns.
1.2.4 ``ATH'' or ``Aggregate Tuning Hours'' shall mean the total
hours of programming that a Noncommercial Educational Webcaster has
transmitted during the relevant period to all listeners within the
United States over all channels and stations that provide audio
programming consisting, in whole or in part, of Eligible
Transmissions, including from any archived programs, less the actual
running time of any sound recordings for which the Noncommercial
Educational Webcaster has obtained direct licenses apart from 17
U.S.C. 114(d)(2) or which do not require a license under United
States copyright law. By way of example, if a Noncommercial
Educational Webcaster transmitted one hour of programming to 10
simultaneous listeners, the Noncommercial Educational Webcaster's
Aggregate Tuning Hours would equal 10. If three minutes of that hour
consisted of transmission of a directly licensed recording, the
Noncommercial Educational Webcaster's Aggregate Tuning Hours would
equal 9 hours and 30 minutes. As an additional example, if one
listener listened to a Noncommercial Educational Webcaster for 10
hours (and none of the recordings transmitted during that time was
directly licensed), the Noncommercial Educational Webcaster's
Aggregate Tuning Hours would equal 10.
[[Page 40617]]
Article 2--Agreement Pursuant to Webcaster Settlement Act of 2009
2.1 Availability of Rates and Terms. Pursuant to the Webcaster
Settlement Act of 2009, and subject to the provisions set forth
below, Noncommercial Educational Webcasters may elect to be subject
to the rates and terms set forth herein in their entirety, with
respect to Eligible Transmissions and related ephemeral recordings,
for all of any one or more calendar years during the period
beginning on January 1, 2011, and ending on December 31, 2015 (the
``Term''), in lieu of other rates and terms from time to time
applicable under 17 U.S.C. 112(e) and 114, by complying with the
procedure set forth in Section 2.2.1 hereof. In addition,
Noncommercial Educational Webcasters may elect to be subject to the
provisions of Article 5 only, for all of the period beginning on
January 1, 2009, and ending on December 31, 2010 (the ``Special
Reporting Term''), in lieu of reporting under 37 CFR Part 370.3, by
complying with the procedure set forth in Section 2.2.3 hereof. Any
person or entity that does not satisfy the eligibility criteria to
be a Noncommercial Educational Webcaster must comply with otherwise
applicable rates and terms.
2.2 Election Process
2.2.1 In General. To elect to be subject to these Rates and
Terms, in their entirety, in lieu of any royalty rates and terms
that otherwise might apply under 17 U.S.C. 112(e) and 114, for any
calendar year during the Term, a Noncommercial Educational Webcaster
shall submit to SoundExchange a completed and signed election form
(available on the SoundExchange Web site at http://www.soundexchange.com) by January 31st of each such calendar year
or, in the case of a Noncommercial Educational Webcaster that has
not made Eligible Transmissions as of January 31st of a calendar
year within the Term but begins doing so at a later time that year
and seeks to be subject to these Rates and Terms for that year, 45
days after the end of the month in which the Noncommercial
Educational Webcaster begins making such Eligible Transmissions.
Even if an entity has once elected to be treated as a Noncommercial
Educational Webcaster, it must make a separate, timely election in
each subsequent calendar year in which it wishes (and is eligible)
to be treated as such. A Noncommercial Educational Webcaster may
instead elect other available rates for which it is eligible.
However, a Noncommercial Educational Webcaster may not elect
different rates for a given calendar year after it has elected to be
subject to these Rates and Terms or for any year in which it has
already paid royalties.
2.2.2 Contents of Election Form. On its election form(s)
pursuant to Section 2.2.1, the Noncommercial Educational Webcaster
must, among other things, provide a certification, signed by an
officer or another duly authorized faculty member or administrator
of the institution with which the Noncommercial Educational
Webcaster is affiliated, on a form provided by SoundExchange, that
the Noncommercial Educational Webcaster (i) qualifies as a
Noncommercial Educational Webcaster for the relevant year, and (ii)
did not exceed 159,140 total ATH in any month of the prior year for
which the Noncommercial Educational Webcaster did not submit a
Statement of Account and pay required Usage Fees. At the same time
the Noncommercial Educational Webcaster must identify all its
stations making Eligible Transmissions. If, subsequent to making an
election, there are changes in the Noncommercial Educational
Webcaster's corporate name or stations making Eligible
Transmissions, or other changes in its corporate structure that
affect the application of these Rates and Terms, the Noncommercial
Educational Webcaster shall promptly notify SoundExchange thereof.
On its election form(s), the Noncommercial Educational Webcaster
must, among other things, identify which of the reporting options
set forth in Section 5.1 it elects for the relevant year (provided
that it must be eligible for the option it elects).
2.2.3 Election for Special Reporting Term. A Noncommercial
Educational Webcaster may elect to be subject to the provisions of
Article 5 only, for all of the Special Reporting Term, in lieu of
reporting under 37 CFR Part 370.3 as it may from time to time exist.
To do so, the Noncommercial Educational Webcaster shall submit to
SoundExchange a completed and signed election form (available on the
SoundExchange Web site at http://www.soundexchange.com), which
SoundExchange may combine with its form of Statement of Account.
Such form must be submitted with timely payment of the Noncommercial
Educational Webcaster's minimum fee for 2010 under 37 CFR 380.4(d)
and the Proxy Fee described in Section 5.1.1 for both 2009 and 2010
if applicable. On any such election form, the Noncommercial
Educational Webcaster must, among other things, provide (i) a
certification, signed by an officer or another duly authorized
faculty member or administrator of the institution with which the
Noncommercial Educational Webcaster is affiliated, that the
Noncommercial Educational Webcaster qualifies as a Noncommercial
Educational Webcaster for the Special Reporting Term, and (ii)
identification of all its stations making Eligible Transmissions and
which of the reporting options set forth in Section 5.1 it elects
for the Special Reporting Term (provided that it must be eligible
for the option it elects for the entire Special Reporting Term).
2.2.4 Participation in Specified Proceedings. Notwithstanding
anything else in these Rates and Terms, a person or entity otherwise
qualifying as a Noncommercial Educational Webcaster that has
participated or is participating in any way in any appeal of the
Final Determination of the Copyright Royalty Judges concerning
royalty rates and terms under Sections 112(e) and 114 of the
Copyright Act for the period January 1, 2006, through December 31,
2010 published in the Federal Register at 72 FR 24084 (May 1, 2007)
(the ``Final Determination''), any proceedings on remand from such
appeal, Digital Performance Right in Sound Recordings and Ephemeral
Recordings (Copyright Royalty Judges' Docket No. 2009-1 CRB
Webcasting III), Digital Performance Right in Sound Recordings and
Ephemeral Recordings for a New Subscription Service (Copyright
Royalty Judges' Docket No. 2009-2 CRB New Subscription II), or any
other proceeding to determine royalty rates or terms under Sections
112(e) or 114 of the Copyright Act for all or any part of the period
January 1, 2006, through December 31, 2015 (all of the foregoing,
including appeals of the proceedings identified above, collectively
``Specified Proceedings'') shall not have the right to elect to be
treated as a Noncommercial Educational Webcaster or claim the
benefit of these Rates and Terms, unless it withdraws from such
proceeding(s) prior to submitting to SoundExchange a completed and
signed election form as contemplated by Section 2.2.1 or 2.2.3, as
applicable. In addition, once a Noncommercial Educational Webcaster
has elected to be subject to these Rates and Terms, either for the
Special Reporting Term or any part of the Term, it shall not at any
time participate as a party, intervenor, amicus curiae or otherwise,
or give evidence or otherwise support or assist, in any Specified
Proceeding, unless subpoenaed on petition of a third party (without
any action by a Noncommercial Educational Webcaster to encourage or
suggest such a subpoena or petition) and ordered to testify or
provide documents in such proceeding.
2.3 Representation of Compliance and Non-Waiver. By electing to
operate pursuant to the Rates and Terms, either for the Special
Reporting Term or any part of the Term, an entity represents and
warrants that it qualifies as a Noncommercial Educational Webcaster
and is eligible for the reporting option set forth in Section 5.1
that it elects. By accepting an election by a transmitting entity
pursuant to these Rates and Terms or any payments or reporting made
by a transmitting entity, SoundExchange does not acknowledge that
the transmitting entity qualifies as a Noncommercial Educational
Webcaster or for a particular reporting option or that it has
complied with the eligibility or other requirements of the statutory
licenses under Sections 112(e) and 114 of the Copyright Act
(including these Rates and Terms). It is the responsibility of each
transmitting entity to ensure that it is eligible for the statutory
licenses under Sections 112(e) and 114 of the Copyright Act and in
full compliance with applicable requirements thereof. SoundExchange
is not in a position to, and does not, make determinations as to
whether each of the many services that rely on the statutory
licenses is eligible for statutory licensing or any particular
royalty payment classification, nor does it continuously verify that
such services are in full compliance with all applicable
requirements. Accordingly, a transmitting entity agrees that
SoundExchange's acceptance of its election, payment or reporting
does not give or imply any acknowledgment that it is in compliance
with the requirements of the statutory licenses (including these
Rates and Terms) and shall not be used as evidence that it is in
compliance with the requirements of the statutory licenses
(including these Rates and Terms). SoundExchange and copyright
[[Page 40618]]
owners reserve all their rights to take enforcement action against a
transmitting entity that is not in compliance with all applicable
requirements that are not inconsistent with these Rates and Terms.
Article 3--Scope
3.1 In General. Noncommercial Educational Webcasters that have
made a timely election to be subject to these Rates and Terms as
provided in Section 2.2.1 are entitled to publicly perform sound
recordings within the scope of the statutory license provided by
Section 114 by means of Eligible Transmissions, and to make related
ephemeral recordings for use solely for purposes of such Eligible
Transmissions within the scope of Section 112(e), in accordance with
and subject to the limitations set forth in these Rates and Terms
and in strict conformity with the provisions of 17 U.S.C. 112(e) and
114 and their implementing regulations (except as otherwise
specifically provided herein), in lieu of other rates and terms from
time to time applicable under 17 U.S.C. 112(e) and 114, for each
calendar year within the Term that they have made a timely election
to be subject to these Rates and Terms.
3.2 Applicable to All Services Operated by or for a
Noncommercial Educational Webcaster. If a Noncommercial Educational
Webcaster has made a timely election to be subject to these Rates
and Terms as provided in Section 2.2.1, these Rates and Terms shall
apply to all Eligible Transmissions made by or for the Noncommercial
Educational Webcaster and related ephemeral recordings. For clarity,
a Noncommercial Educational Webcaster may not rely upon these Rates
and Terms for its Eligible Transmissions of one broadcast channel or
station and upon different Section 112(e) and 114 rates and terms
for its Eligible Transmissions of other broadcast channels or
stations. However, a single educational institution may have more
than one webcasting station making Eligible Transmissions. If so,
each such station may determine individually whether it elects to be
subject to these Rates and Terms as a Noncommercial Educational
Webcaster. It is expressly contemplated that within a single
educational institution, one or more Noncommercial Educational
Webcasters and one or more public broadcasting entities (as defined
in 17 U.S.C. 118(g)) may exist simultaneously, each paying under a
different set of rates and terms.
3.3 No Implied Rights. These Rates and Terms extend only to
electing Noncommercial Educational Webcasters and grant no rights,
including by implication or estoppel, to any other person or entity,
or except as specifically provided herein. Without limiting the
generality of the foregoing, these Rates and Terms do not grant (i)
any copyright ownership interest in any sound recording; (ii) any
trademark or trade dress rights; (iii) any rights outside the United
States (as defined in 17 U.S.C. 101); (iv) any rights of publicity
or rights to any endorsement by SoundExchange or any other person;
or (v) any rights with respect to performances or reproductions
outside the scope of these Rates and Terms or the statutory licenses
under 17 U.S.C. 112(e) and 114.
Article 4--Royalties
4.1 Minimum Fee. Each Noncommercial Educational Webcaster shall
pay an annual, nonrefundable minimum fee of $500 (the ``Minimum
Fee'') for each of its individual channels, including each of its
individual side channels, and each of its individual stations,
through which (in each case) it makes Eligible Transmissions, for
each calendar year it elects to be subject to these Rates and Terms.
For clarity, each individual stream (e.g., HD radio side channels,
different stations owned by a single licensee) will be treated
separately and be subject to a separate minimum. In addition, a
Noncommercial Educational Webcaster electing the reporting waiver
described in Section 5.1.1 shall pay a $100 annual fee (the ``Proxy
Fee'') to SoundExchange.
4.2 Additional Usage Fees. If, in any month, a Noncommercial
Educational Webcaster makes total transmissions in excess of 159,140
Aggregate Tuning Hours (``ATH'') on any individual channel or
station, the Noncommercial Educational Webcaster shall pay
additional usage fees (``Usage Fees'') for the Eligible
Transmissions it makes on that channel or station after exceeding
159,140 total ATH at the following per-performance rates:
------------------------------------------------------------------------
Rate per
Year performance
------------------------------------------------------------------------
2011.................................................... $0.0017
2012.................................................... 0.0020
2013.................................................... 0.0022
2014.................................................... 0.0023
2015.................................................... 0.0025
------------------------------------------------------------------------
For a Noncommercial Educational Webcaster unable to calculate
actual total performances and not required to report ATH or actual
total performances under Section 5.1.3, the Noncommercial
Educational Webcaster may pay Usage Fees on an ATH basis, provided
that the Noncommercial Educational Webcaster shall pay Usage Fees at
the per-performance rates provided above in this Section 4.2 based
on the assumption that the number of sound recordings performed is
12 per hour. SoundExchange may distribute royalties paid on the
basis of ATH hereunder in accordance with its generally-applicable
methodology for distributing royalties paid on such basis.
A Noncommercial Educational Webcaster offering more than one
channel or station shall pay Usage Fees on a per channel or station
basis.
4.3 Ephemeral Royalty. The royalty payable under 17 U.S.C.
112(e) for any ephemeral reproductions made by a Noncommercial
Educational Webcaster and covered hereby is deemed to be included
within the royalty payments set forth above. SoundExchange may
allocate payments hereunder between the statutory licenses under
Sections 112(e) and 114 in the same manner as statutory webcasting
royalties for the period 2011-2015.
4.4 Statements of Account and Payment
4.4.1 Minimum Fee. Noncommercial Educational Webcasters shall
submit the Minimum Fee, and Proxy Fee if applicable, accompanied by
a statement of account in a form available on the SoundExchange Web
site at http://www.soundexchange.com (``Statement of Account'') by
the date specified in Section 2.2.1 for making the Noncommercial
Educational Webcaster's election to be subject to these Rates and
Terms for the applicable calendar year.
4.4.2 Usage Fees. Noncommercial Educational Webcasters required
to pay Usage Fees shall submit a Minimum Fee and Statement of
Account in accordance with Section 4.4.1, and in addition, a
Statement of Account accompanying any Usage Fees owed pursuant to
Section 4.2. Such a Statement of Account and accompanying Usage Fees
shall be due 45 days after the end of the month in which the excess
usage occurred.
4.4.3 Identification of Statements of Account. Noncommercial
Educational Webcasters shall include on each of their Statements of
Account (i) the name of the Noncommercial Educational Webcaster,
exactly as it appears on its notice of use, and (ii) if the
Statement of Account covers a single station only, the call letters
or name of the station.
4.4.4 Payment. Payments of all amounts specified in these Rates
and Terms shall be made to SoundExchange.
4.5 Late Fees. A Noncommercial Educational Webcaster shall pay a
late fee for each instance in which any payment, any Statement of
Account or any Report of Use (as defined in Section 5.1 below) is
not received by SoundExchange in compliance with these Rates and
Terms and applicable regulations by the due date. The amount of the
late fee shall be 1.5% of the late payment, or 1.5% of the payment
associated with a late Statement of Account or Report of Use, per
month, compounded monthly, or the highest lawful rate, whichever is
lower. The late fee shall accrue from the due date of the payment,
Statement of Account or Report of Use until a fully compliant
Payment, Statement of Account or Report of Use (as applicable) is
received by SoundExchange, provided that, in the case of a timely
provided but noncompliant Statement of Account or Report of Use,
SoundExchange has notified the Noncommercial Educational Webcaster
within 90 days regarding any noncompliance that is reasonably
evident to SoundExchange.
Article 5--Reporting
5.1 Provision of Reports of Use. Noncommercial Educational
Webcasters shall have the following three options, as applicable,
with respect to provision of reports of use of sound recordings
(``Reports of Use''):
5.1.1 Reporting Waiver. In light of the unique business and
operational circumstances currently existing with respect to these
services, a Noncommercial Educational Webcaster that did not exceed
55,000 total ATH for any individual channel or station for more than
one calendar month in the immediately preceding calendar year and
that does not expect to exceed 55,000 total ATH for any individual
channel or station for any calendar month during the applicable
calendar year may elect to pay a nonrefundable, annual Proxy Fee of
$100 in
[[Page 40619]]
lieu of providing Reports of Use for the calendar year. In addition,
a Noncommercial Educational Webcaster that unexpectedly exceeded
55,000 total ATH on one or more channels or stations for more than
one month during the immediately preceding calendar year may elect
to pay the Proxy Fee and receive the reporting waiver described in
this Section 5.1.1 during a calendar year, if it implements measures
reasonably calculated to ensure that it will not make Eligible
Transmissions exceeding 55,000 total ATH per month during that
calendar year. SoundExchange shall distribute the aggregate
royalties paid by electing Noncommercial Educational Webcasters
based on proxy usage data in accordance with a methodology adopted
by SoundExchange's Board of Directors. The Proxy Fee is intended to
defray SoundExchange's costs associated with this reporting waiver,
including development of proxy usage data. The Proxy Fee shall be
paid by the date specified in Section 2.2.1 for making the
Noncommercial Educational Webcaster's election to be subject to
these Rates and Terms for the applicable calendar year (or in the
case of the Special Reporting Term, by the date specified in Section
2.2.3) and shall be accompanied by a certification on a form
provided by SoundExchange, signed by an officer or another duly
authorized faculty member or administrator of the applicable
educational institution, stating that the Noncommercial Educational
Webcaster is eligible for the Proxy Fee option because of its past
and expected future usage, and if applicable, measures to ensure
that it will not make excess Eligible Transmissions in the future.
5.1.2 Sample-Basis Reports. A Noncommercial Educational
Webcaster that did not exceed 159,140 total ATH for any individual
channel or station for more than one calendar month in the
immediately preceding calendar year and that does not expect to
exceed 159,140 total ATH for any individual channel or station for
any calendar month during the applicable calendar year may elect (as
described in Section 2.2.2) to provide Reports of Use on a sample
basis (two weeks per calendar quarter) in accordance with the
regulations at 37 CFR 370.3 as they existed at January 1, 2009,
except that notwithstanding 37 CFR 370.3(c)(2)(vi), such an electing
Noncommercial Educational Webcaster shall not be required to include
ATH or actual total performances and may in lieu thereof provide
channel or station name and play frequency (i.e., number of spins).
Notwithstanding the foregoing, a Noncommercial Educational Webcaster
that is able to report ATH or actual total performances is
encouraged to do so. These Reports of Use shall be submitted to
SoundExchange no later than January 31st of the year immediately
following the year to which they pertain.
5.1.3 Census-Basis Reports. If any of the following three
conditions is satisfied, a Noncommercial Webcaster must report
pursuant to this Section 5.1.3: (i) The Noncommercial Educational
Webcaster exceeded 159,140 total ATH for any individual channel or
station for more than one calendar month in the immediately
preceding calendar year, (ii) the Noncommercial Educational
Webcaster expects to exceed 159,140 total ATH for any individual
channel or station for any calendar month in the applicable calendar
year, or (iii) the Noncommercial Educational Webcaster otherwise
does not elect (as described in Section 2.2.2) to be subject to
Section 5.1.1 or 5.1.2. A Noncommercial Educational Webcaster
required to report pursuant to this Section 5.1.3 shall provide
Reports of Use to SoundExchange quarterly on a census reporting
basis (i.e., Reports of Use shall include every sound recording
performed in the relevant quarter), containing information otherwise
complying with applicable regulations (but no less information than
required by 37 CFR 370.3 as of January 1, 2009), except that
notwithstanding 37 CFR 370.3(c)(2)(vi), such a Noncommercial
Educational Webcaster shall not be required to include ATH or actual
total performances, and may in lieu thereof provide channel or
station name and play frequency (i.e., number of spins), during the
first calendar year it is required to report in accordance with this
Section 5.1.3. For the avoidance of doubt, after a Noncommercial
Educational Webcaster has been required to report in accordance with
this Section 5.1.3 for a full calendar year, it must thereafter
include ATH or actual total performances in its Reports of Use. All
Reports of Use under this Section 5.1.3 shall be submitted to
SoundExchange no later than the 45th day after the end of each
calendar quarter.
5.2 Delivery of Reports. Reports of Use submitted by
Noncommercial Educational Webcasters shall conform to the following
additional requirements:
5.2.1 Noncommercial Educational Webcasters shall either submit a
separate Report of Use for each of their stations, or a collective
report of use covering all of their stations but identifying usage
on a station-by-station basis.
5.2.2 Noncommercial Educational Webcasters shall transmit each
Report of Use in a file the name of which includes (i) the name of
the Noncommercial Educational Webcaster, exactly as it appears on
its notice of use, and (ii) if the Report of Use covers a single
station only, the call letters or name of the station.
5.2.3 Noncommercial Educational Webcasters shall submit reports
of use with headers, as such headers are described in 37 CFR
370.3(d)(7).
5.3 Server Logs. To the extent not already required by the
current regulations set forth in 37 CFR Part 380, as they existed on
January 1, 2009, Noncommercial Educational Webcasters shall retain
for a period of at least three full calendar years server logs
sufficient to substantiate all information relevant to eligibility,
rate calculation and reporting hereunder. To the extent that a
third-party web hosting or service provider maintains equipment or
software for a Noncommercial Educational Webcaster and/or such third
party creates, maintains, or can reasonably create such server logs,
the Noncommercial Educational Webcaster shall direct that such
server logs be created and maintained by said third party for a
period of at least three full calendar years and/or that such server
logs be provided to, and maintained by, the Noncommercial
Educational Webcaster.
Article 6--Additional Provisions
6.1 Applicable Regulations. To the extent not inconsistent with
the Rates and Terms herein, all applicable regulations, including 37
CFR Parts 370 and 380, shall apply to activities subject to these
Rates and Terms. Without limiting the foregoing, the provisions of
applicable regulations for the retention of records and verification
of statutory royalty payments (presently 37 CFR 380.4(h) and 380.6)
shall apply hereunder. Noncommercial Educational Webcasters shall
cooperate in good faith with any such verification, and the exercise
by SoundExchange of any right with respect thereto shall not
prejudice any other rights or remedies of SoundExchange or sound
recording copyright owners.
6.2 Use of Agreement in Future Proceedings. Pursuant to 17
U.S.C. 114(f)(5)(C), submission of these Rates and Terms in a
proceeding under 17 U.S.C. 114(f) by any participant in such
proceeding is expressly authorized.
6.3 Effect of Direct Licenses. Any copyright owner may enter
into a voluntary agreement with any Noncommercial Educational
Webcaster setting alternative rates and terms governing the
Noncommercial Educational Webcaster's transmission of copyrighted
works owned by the copyright owner, and such voluntary agreement may
be given effect in lieu of the Rates and Terms set forth herein.
6.4 Default. A Noncommercial Educational Webcaster shall comply
with all the requirements of these Rates and Terms. If it fails to
do so, SoundExchange may give written notice to the Noncommercial
Educational Webcaster that, unless the breach is remedied within 30
days from the date of receipt of notice, the Noncommercial
Educational Webcaster's authorization to make public performances
and ephemeral reproductions under these Rates and Terms may be
terminated by further written notice; provided, however, that such
period shall be 60 (rather than 30) days in the case of any such
notice sent by SoundExchange between May 15 and August 15 or between
December 1 and January 30. No such cure period shall apply before
termination in case of material noncompliance that has been repeated
multiple times so as to constitute a pattern of noncompliance,
provided that SoundExchange has given at least two notices of
noncompliance. Any transmission made by a Noncommercial Educational
Webcaster in violation of these Rates and Terms or Section 112(e) or
114 or their implementing regulations (except to the extent such
implementing regulations are inconsistent with these Rates and
Terms), outside the scope of these Rates and Terms or Section 112(e)
or 114, or after the expiration or termination of these Rates and
Terms shall be fully subject to, among other things, the copyright
owners' rights under 17 U.S.C. 106 and the remedies in 17 U.S.C.
501-506, and all limitations, exceptions and defenses available with
respect thereto.
[[Page 40620]]
Article 7--Miscellaneous
7.1 Acknowledgement. The parties acknowledge these Rates and
Terms were entered into knowingly and willingly.
7.2 Applicable Law and Venue. These Rates and Terms shall be
governed by, and construed in accordance with, the laws of the
District of Columbia (without giving effect to conflicts of law
principles thereof). All actions or proceedings arising directly or
indirectly from or in connection with these Rates and Terms shall be
litigated only in the United States District Court for the District
of Columbia located in Washington, DC. SoundExchange and each
Noncommercial Educational Webcaster consent to the jurisdiction and
venue of the foregoing court and consent that any process or notice
of motion or other application to said court or a judge thereof may
be served inside or outside the District of Columbia by registered
mail, return receipt requested, directed to the person for which it
is intended at its last known address (and service so made shall be
deemed complete five (5) days after the same has been posted as
aforesaid) or by personal service or in such other manner as may be
permissible under the rules of that court.
7.3 Rights Cumulative. The rights, remedies, limitations, and
exceptions provided in these Rates and Terms and available under
applicable law shall be cumulative and shall not preclude assertion
by any party of any other rights, defenses, limitations, or
exceptions or the seeking of any other remedies against another
party hereto. These Rates and Terms shall not constitute a waiver of
any violation of Section 112 or 114 or their implementing
regulations (except to the extent such implementing regulations are
inconsistent with these Rates and Terms). No failure to exercise and
no delay in exercising any right, power or privilege shall operate
as a waiver of such right, power or privilege. No single or partial
exercise of any right, power or privilege granted under these Rates
and Terms or available under applicable law shall preclude any other
or further exercise thereof or the exercise of any other right,
power or privilege. No waiver by any party of full performance by
another party in any one or more instances shall be a waiver of the
right to require full and complete performance of these Rates and
Terms and of obligations under applicable law thereafter.
7.4 Entire Agreement. These Rates and Terms represent the entire
and complete agreement between SoundExchange and any Noncommercial
Educational Webcaster with respect to their subject matter and
supersede all prior and contemporaneous agreements and undertakings
of SoundExchange and a Noncommercial Educational Webcaster with
respect to the subject matter hereof.
Appendix C--Agreement Concerning Rates and Terms for Public Radio
This Agreement Concerning Rates and Terms for Public Radio
(``Agreement''), dated as of July 30, 2009 (``Execution Date''), is
made by and between SoundExchange, Inc. (``SoundExchange'') and the
Corporation for Public Broadcasting (``CPB''), on behalf of all
Covered Entities (SoundExchange, and CPB each a ``Party'' and,
jointly, the ``Parties''). Capitalized terms used herein are defined
in Article 1 below.
Whereas, SoundExchange is the ``receiving agent'' as defined in
17 U.S.C. 114(f)(5)(E)(ii) designated for collecting and
distributing statutory royalties received from Covered Entities for
their Web Site Performances;
Whereas, the Webcaster Settlement Act of 2009 (Pub. L. 111-36;
to be codified at 17 U.S.C. 114(f)(5)) authorizes SoundExchange to
enter into agreements for the reproduction and performance of Sound
Recordings under Sections 112(e) and 114 of the Copyright Act that,
once published in the Federal Register, shall be binding on all
Copyright Owners and Performers, in lieu of any determination by the
Copyright Royalty Judges;
Whereas, in view of the unique business, economic and political
circumstances of CPB, Covered Entities, SoundExchange, Copyright
Owners and Performers at the Execution Date, the Parties have agreed
to the royalty rates and other consideration set forth herein for
the period January 1, 2011 through December 31, 2015;
Now, Therefore, pursuant to 17 U.S.C. 114(f)(5), and in
consideration of the mutual promises contained in this Agreement and
for other good and valuable consideration, the adequacy and
sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
Article 1--Definitions
The following terms shall have the meanings set forth below:
1.1 ``Agreement'' shall have the meaning set forth in the
preamble.
1.2 ``ATH'' or ``Aggregate Tuning Hours'' means the total hours
of programming that Covered Entities have transmitted during the
relevant period to all listeners within the United States from all
Covered Entities that provide audio programming consisting, in whole
or in part, of Web Site Performances, less the actual running time
of any sound recordings for which the Covered Entity has obtained
direct licenses apart from this Agreement. By way of example, if a
Covered Entity transmitted one hour of programming to ten (10)
simultaneous listeners, the Covered Entity's Aggregate Tuning Hours
would equal ten (10). If three (3) minutes of that hour consisted of
transmission of a directly licensed recording, the Covered Entity's
Aggregate Tuning Hours would equal nine (9) hours and thirty (30)
minutes. As an additional example, if one listener listened to a
Covered Entity for ten (10) hours (and none of the recordings
transmitted during that time was directly licensed), the Covered
Entity's Aggregate Tuning Hours would equal 10.
1.3 ``Authorized Web Site'' means any Web Site operated by or on
behalf of any Covered Entity that is accessed by Web Site Users
through a Uniform Resource Locator (``URL'') owned by such Covered
Entity and through which Web Site Performances are made by such
Covered Entity.
1.4 ``CPB'' shall have the meaning set forth in the preamble.
1.5 ``Collective'' shall have the meaning set forth in 37 CFR
380.2(c).
1.6 ``Copyright Owners'' are Sound Recording copyright owners
who are entitled to royalty payments made pursuant to the statutory
licenses under 17 U.S.C. 112(e) and 114(f).
1.7 ``Covered Entities'' means NPR, American Public Media,
Public Radio International, and Public Radio Exchange, and, in
calendar year 2011, up to four-hundred and ninety (490) Originating
Public Radio Stations as named by CPB. CPB shall notify
SoundExchange annually of the eligible Originating Public Radio
Stations to be considered Covered Entities hereunder (subject to the
numerical limitations set forth herein). The number of Originating
Public Radio Stations considered to be Covered Entities is permitted
to grow by no more than 10 Originating Public Radio Stations per
year beginning in calendar year 2012, such that the total number of
Covered Entities at the end of the Term will be less than or equal
to 530. The Parties agree that the number of Originating Public
Radio Stations licensed hereunder as Covered Entities shall not
exceed the maximum number permitted for a given year without
SoundExchange's express written approval, except that CPB shall have
the option to increase the number of Originating Public Radio
Stations that may be considered Covered Entities as provided in
Section 4.4.
1.8 ``Ephemeral Phonorecord'' shall have the meaning set forth
in Section 3.1(b).
1.9 ``Execution Date'' shall have the meaning set forth in the
preamble.
1.10 ``License Fee'' shall have the meaning set forth in Section
4.1.
1.11 ``Music ATH'' means ATH of Web Site Performances of Sound
Recordings of musical works.
1.12 ``NPR'' shall mean National Public Radio, with offices at
635 Massachusetts Avenue, NW., Washington, DC 20001.
1.13 ``Originating Public Radio Stations'' shall mean a
noncommercial terrestrial radio broadcast station that (i) is
licensed as such by the Federal Communications Commission; (ii)
originates programming and is not solely a repeater station; (iii)
is a member or affiliate of NPR, American Public Media, Public Radio
International, or Public Radio Exchange, a member of the National
Federation of Community Broadcasters, or another public radio
station that is qualified to receive funding from the Corporation
for Public Broadcasting pursuant to its criteria; (iv) qualifies as
a ``noncommercial webcaster'' under 17 U.S.C. 114(f)(5)(E)(i); and
(v) either (a) offers Web Site Performances only as part of the
mission that entitles it to be exempt from taxation under section
501 of the Internal Revenue Code of 1986 (26 U.S.C. 501), or (b) in
the case of a governmental entity (including a Native American
Tribal governmental entity), is operated exclusively for public
purposes.
1.14 ``Party'' shall have the meaning set forth in the preamble.
1.15 ``Performers'' means the independent administrators
identified in 17 U.S.C. 114(g)(2)(B) and (C) and the individuals and
entities identified in 17 U.S.C. 114(g)(2)(D).
1.16 ``Person'' means a natural person, a corporation, a limited
liability company, a partnership, a trust, a joint venture, any
governmental authority or any other entity or organization.
[[Page 40621]]
1.17 ``Phonorecords'' shall have the meaning set forth in 17
U.S.C. 101.
1.18 ``Side Channel'' means any Internet-only program available
on an Authorized Web Site or an archived program on such Authorized
Web Site that, in either case, conforms to all applicable
requirements under 17 U.S.C. 114.
1.19 ``SoundExchange'' shall have the meaning set forth in the
preamble and shall include any successors and assigns to the extent
permitted by this Agreement.
1.20 ``Sound Recording'' shall have the meaning set forth in 17
U.S.C. 101.
1.21 ``Term'' shall have the meaning set forth in Section 7.1.
1.22 ``Territory'' means the United States, its territories,
commonwealths and possessions.
1.23 ``URL'' shall have the meaning set forth in Section 1.3.
1.24 ``Web Site'' means a site located on the World Wide Web
that can be located by a Web Site User through a principal URL.
1.25 ``Web Site Performances'' means all public performances by
means of digital audio transmissions of Sound Recordings, including
the transmission of any portion of any Sound Recording, made through
an Authorized Web Site in accordance with all requirements of 17
U.S.C. 114, from servers used by a Covered Entity (provided that the
Covered Entity controls the content of all materials transmitted by
the server), or by a sublicensee authorized pursuant to Section 3.2,
that consist of either (a) the retransmission of a Covered Entity's
over-the-air terrestrial radio programming or (b) the digital
transmission of nonsubscription Side Channels that are programmed
and controlled by the Covered Entity. This term does not include
digital audio transmissions made by any other means.
1.26 ``Web Site Users'' means all those who access or receive
Web Site Performances or who access any Authorized Web Site.
Article 2--Agreement Pursuant to Webcaster Settlement Act of 2009
2.1 General. This Agreement is entered into pursuant to the
Webcaster Settlement Act of 2009 (Pub. L. 111-36; to be codified at
17 U.S.C. 114(f)(5)).
2.2 Eligibility Conditions. The only webcasters (as defined in
17 U.S.C. 114(f)(5)(E)(iii)) eligible to avail themselves of the
terms of this Agreement as contemplated by 17 U.S.C. 114(f)(5)(B)
are the Covered Entities, as expressly set forth herein. The terms
of this Agreement shall apply to the Covered Entities in lieu of
other rates and terms applicable under 17 U.S.C. 112 and 114.
2.3 Agreement Nonprecedential. Consistent with 17 U.S.C.
114(f)(5)(C), this Agreement, including any rate structure, fees,
terms, conditions, and notice and recordkeeping requirements set
forth therein, is nonprecedential and shall not be introduced nor
used by any Person, including the Parties and any Covered Entities,
as evidence or otherwise taken into account in any administrative,
judicial, or other proceeding involving the setting or adjustment of
the royalties payable for the public performance or reproduction in
ephemeral phonorecords or copies of sound recordings, the
determination of terms or conditions related thereto, or the
establishment of notice or recordkeeping requirements by the
Copyright Royalty Judges under 17 U.S.C. 114(f)(4) or 112(e)(4), or
any administrative or judicial proceeding pertaining to rates, terms
or reporting obligations for any yet-to-be-created right to collect
royalties for the performance of Sound Recordings by any technology
now or hereafter known. Any royalty rates, rate structure,
definitions, terms, conditions and notice and recordkeeping
requirements included in this Agreement shall be considered as a
compromise motivated by the unique business, economic and political
circumstances of webcasters, copyright owners, and performers, and
the participation by NPR on behalf of itself and its member stations
in Digital Performance Right in Sound Recordings and Ephemeral
Recordings, Docket No. 2009-1 CRB Webcasting III (the pending
proceeding before the Copyright Royalty Judges to set statutory
rates and terms for 2011-2015), rather than as matters that would
have been negotiated in the marketplace between a willing buyer and
a willing seller, or otherwise meet the objectives set forth in
Section 801(b) of the Copyright Act.
2.4 Reservation of Rights. The Parties agree that the entering
into of this Agreement shall be without prejudice to any of their
respective positions in any proceeding with respect to the rates,
terms or reporting obligations to be established for the making of
Ephemeral Phonorecords or the digital audio transmission of Sound
Recordings after the Term of this Agreement on or by Covered
Entities under 17 U.S.C. 112 and 114 and their implementing
regulations. The Parties further acknowledge and agree that the
entering of this Agreement, the performance of its terms, and the
acceptance of any payments and reporting by SoundExchange (i) do not
express or imply any acknowledgement that CPB, Covered Entities, or
any other persons are eligible for the statutory license of 17
U.S.C. 112 and 114, and (ii) shall not be used as evidence that CPB,
the Covered Entities, or any other persons are acting in compliance
with the provisions of 17 U.S.C. 114(d)(2)(A) or (C) or any other
applicable laws or regulations.
Article 3--Scope of Agreement
3.1 General
(a) Public Performances. In consideration for the payment of the
License Fee by CPB, SoundExchange agrees that Covered Entities that
publicly perform under Section 114 all or any portion of any Sound
Recordings through an Authorized Web Site, within the Territory, by
means of Web Site Performances, may do so in accordance with and
subject to the limitations set forth in this Agreement; provided
that: (i) Such transmissions are made in strict conformity with the
provisions of 17 U.S.C. 114(d)(2)(A) and (C); and (ii) such Covered
Entities comply with all of the terms and conditions of this
Agreement and all applicable copyright laws. For clarity, there is
no limit to the number of Web Site Performances that a Covered
Entity may transmit during the Term under the provisions of this
Section 3.1(a), if such Web Site Performances otherwise satisfy the
requirements of this Agreement.
(b) Ephemeral Phonorecords. In consideration for the payment of
the License Fee by CPB, SoundExchange agrees that Covered Entities
that make and use solely for purposes of transmitting Web Site
Performances as described in Section 3.1(a), within the Territory,
Phonorecords of all or any portion of any Sound Recordings
(``Ephemeral Phonorecords''), may do so in accordance with and
subject to the limitations set forth in this Agreement; provided
that: (i) Such Phonorecords are limited solely to those necessary to
encode Sound Recordings in different formats and at different bit
rates as necessary to facilitate Web Site Performances licensed
hereunder; (ii) such Phonorecords are made in strict conformity with
the provisions set forth in 17 U.S.C. 112(e)(1)(A)-(D); and (iii)
the Covered Entities comply with 17 U.S.C. 112 (a) and (e) and all
of the terms and conditions of this Agreement.
3.2 Limited Right to Sublicense. Rights under this Agreement are
not sublicensable, except that a Covered Entity may employ the
services of a third Person to provide the technical services and
equipment necessary to deliver Web Site Performances on behalf of
such Covered Entity pursuant to Section 3.1, but only through an
Authorized Web Site. Any agreement between a Covered Entity and any
third Person for such services shall (i) contain the substance of
all terms and conditions of this Agreement and obligate such third
Person to provide all such services in accordance with all
applicable terms and conditions of this Agreement, including,
without limitation, Articles 3, 5 and 6; (ii) specify that such
third Person shall have no right to make Web Site Performances or
any other performances or Phonorecords on its own behalf or on
behalf of any Person or entity other than a Covered Entity through
the Covered Entity's Authorized Web Site by virtue of this
Agreement, including in the case of Phonorecords, pre-encoding or
otherwise establishing a library of Sound Recordings that it offers
to a Covered Entity or others for purposes of making performances,
but instead must obtain all necessary licenses from SoundExchange,
the copyright owner or another duly authorized Person, as the case
may be; (iii) specify that such third Person shall have no right to
grant any further sublicenses; and (iv) provide that SoundExchange
is an intended third-party beneficiary of all such obligations with
the right to enforce a breach thereof against such third party.
3.3 Limitations
(a) Reproduction of Sound Recordings. Except as provided in
Section 3.2, nothing in this Agreement grants Covered Entities, or
authorizes Covered Entities to grant to any other Person (including,
without limitation, any Web Site User, any operator of another Web
Site or any authorized sublicensee), the right to reproduce by any
means, method or process whatsoever, now known or hereafter
developed, any Sound Recordings, including, but not limited to,
transferring or
[[Page 40622]]
downloading any such Sound Recordings to a computer hard drive, or
otherwise copying the Sound Recording onto any other storage medium.
(b) No Right of Public Performance. Except as provided in
Section 3.2, nothing in this Agreement authorizes Covered Entities
to grant to any Person the right to perform publicly, by means of
digital transmission or otherwise, any Sound Recordings.
(c) No Implied Rights. The rights granted in this Agreement
extend only to Covered Entities and grant no rights, including by
implication or estoppel, to any other Person, except as expressly
provided in Section 3.2. Without limiting the generality of the
foregoing, this Agreement does not grant to Covered Entities (i) any
copyright ownership interest in any Sound Recording; (ii) any
trademark or trade dress rights; (iii) any rights outside the
Territory; (iv) any rights of publicity or rights to any endorsement
by SoundExchange or any other Person; or (v) any rights outside the
scope of a statutory license under 17 U.S.C. 112(e) and 114.
(d) Territory. The rights granted in this Agreement shall be
limited to the Territory.
(e) No Syndication Rights. Nothing in this Agreement authorizes
any Web Site Performances to be accessed by Web Site Users through
any Web Site other than an Authorized Web Site.
3.4 Effect of Non-Performance by any Covered Entity. In the
event that any Covered Entity breaches or otherwise fails to perform
any of the material terms of this Agreement it is required to
perform (including any obligations applicable under Section 112 or
114), or otherwise materially violates the terms of this Agreement
or Section 112 or 114 or their implementing regulations, the
remedies of SoundExchange shall be specific to that Covered Entity
only, and shall include, without limitation, (i) termination of that
Covered Entity's rights hereunder upon written notice to CPB, and
(ii) the rights of SoundExchange and Copyright owners under
applicable law. SoundExchange's remedies for such a breach or
failure by an individual Covered Entity shall not include
termination of this Agreement in its entirety or termination of the
rights of other Covered Entities, except that if CPB breaches or
otherwise fails to perform any of the material terms of this
Agreement, or such a breach or failure by a Covered Entity results
from CPB's inducement, and CPB does not cure such breach or failure
within thirty (30) days after receiving notice thereof from
SoundExchange, then SoundExchange may terminate this Agreement in
its entirety, and a prorated portion of the License Fee for the
remainder Term shall, after deduction of any damages payable to
SoundExchange by virtue of the breach or failure, be credited to
statutory royalty obligations of Covered Entities to SoundExchange
for the Term as specified by CPB.
Article 4--Consideration
4.1 License Fee. The total license fee for all Web Site
Performances and Ephemeral Phonorecords made during the Term shall
be two million four hundred thousand dollars ($2,400,000) (the
``License Fee''), unless additional payments are required as
described in Section 4.3 or 4.4. CPB shall pay such amount to
SoundExchange in five equal installments of four hundred eighty
thousand dollars ($480,000) each, which shall be due December 31,
2010 and annually thereafter through December 31, 2014.
4.2 Calculation of License Fee. The Parties acknowledge that the
License Fee includes: (i) an annual minimum fee of five hundred
dollars ($500) for each Covered Entity for each year during the
Term; (ii) additional usage fees calculated at a royalty rate equal
to one third the royalty rate applicable to commercial broadcasters
under the Webcaster Settlement Act of 2008 (see 74 FR 9299 (March 3,
2009)); and (iii) a discount that reflects the administrative
convenience to SoundExchange of receiving annual lump sum payments
that cover a large number of separate entities, as well as the
protection from bad debt that arises from being paid in advance.
4.3 Total Music ATH True-Up
(a) If the total Music ATH for all Covered Entities, in the
aggregate for any calendar year during the period 2011-2015, as
reported or estimated in accordance with Attachment 1, is greater
than the Music ATH cap for the year specified in the table below,
CPB shall make an additional payment to SoundExchange for all such
Music ATH in excess of such Music ATH cap for all Covered Entities
in the aggregate on the basis of the per performance rate for the
year specified in the table below, which shall be applied to excess
Music ATH by assuming twelve (12) performances for each hour of
excess Music ATH:
------------------------------------------------------------------------
Per
Year Music ATH cap performance
rate
------------------------------------------------------------------------
2011.................................... 279,500,000 $0.00057
2012.................................... 280,897,500 0.00067
2013.................................... 282,301,988 0.00073
2014.................................... 283,713,497 0.00077
2015.................................... 285,132,065 0.00083
------------------------------------------------------------------------
(b) Payments under Section 4.3(a) shall be due no later than
March 1 of the year following the year to which they pertain.
SoundExchange may distribute royalties paid under Section 4.3(a) in
accordance with its generally-applicable methodology for
distributing royalties paid on the basis of ATH.
(c) Notwithstanding the foregoing provisions of this Section
4.3, CPB shall not be required to make payments under this Section
4.3 exceeding four hundred eighty thousand dollars ($480,000) in the
aggregate during the Term. Because the limitation stated in the
immediately preceding sentence is to be applied in the aggregate
over the Term, CPB shall make all payments otherwise due under this
Section 4.3 for excess Music ATH until such time as such payments,
if any, for the Term reach four hundred eighty thousand dollars
($480,000) in the aggregate, and thereafter CPB shall owe no further
payments under Section 4.3(a) regardless of the amount of excess
Music ATH.
4.4 Station Growth True-Up: If the total number of Originating
Public Radio Stations that wish to make Web Site Performances in any
calendar year exceeds the number of such Originating Public Radio
Stations considered Covered Entities in the relevant year, and the
excess Originating Public Radio Stations do not wish to pay
royalties for such Web Site Performances apart from this Agreement,
CPB may elect by written notice to SoundExchange to increase the
number of Originating Public Radio Stations considered Covered
Entities in the relevant year effective as of the date of the
notice. To the extent of any such elections, CPB shall make an
additional payment to SoundExchange for each calendar year or part
thereof it elects to have an additional Originating Public Radio
Station considered a Covered Entity, in the amount of five hundred
dollars ($500) per Originating Public Radio Station per year. Such
payment shall accompany the notice electing to have an additional
Originating Public Radio Station considered a Covered Entity.
4.5 Late Fee. The Parties hereby agree to the terms set forth in
37 CFR 380.4(e) as if that section (and the applicable definitions
provided in 37 CFR 380.2) were set forth herein.
4.6. Payments to Third Persons
(a) SoundExchange and CPB agree that, except as provided in
Section 4.6(b), all obligations of, inter alia, clearance, payment
or attribution to third Persons, including, by way of example and
not limitation, music publishers and performing rights organizations
(PROs) for use of the musical compositions embodied in Sound
Recordings, shall be solely the responsibility of CPB and the
Covered Entities.
(b) SoundExchange and CPB agree that all obligations of
distribution of the License Fee to Copyright Owners and Performers
in accordance with 37 CFR 380.4(g) shall be solely the
responsibility of SoundExchange. In making such distribution,
SoundExchange has discretion to allocate the License Fee between
Section 112 and 114 in the same manner as the majority of other
webcasting royalties.
Article 5--Reporting, Auditing and Confidentiality
5.1 Reporting. CPB and Covered Entities shall submit reports of
use and other information concerning Web Site Performances as set
forth in Attachments 1 and 2.
5.2 Verification of Information. The Parties hereby agree to the
terms set forth in 37 CFR 380.4(h) and 380.6 as if those sections
(and the applicable definitions provided in 37 CFR 380.2) were set
forth herein. The exercise by SoundExchange of any right under this
Section 5.2 shall not prejudice any other rights or remedies of
SoundExchange.
5.3 Confidentiality. The Parties hereby agree to the terms set
forth in 37 CFR 380.5 as if that section (and the applicable
definitions provided in 37 CFR 380.2) were set forth herein, except
that:
(a) The following shall be added to the end of the first
sentence of Sec. 380.5(b): ``or documents or information that
become publicly known through no fault of
[[Page 40623]]
SoundExchange or are known by SoundExchange when disclosed by CPB'';
(b) the following shall be added at the end of Sec. 380.5(c):
``and enforcement of the terms of this Agreement''; and
(c) the following shall be added at the end of Sec.
380.5(d)(4): ``subject to the provisions of Section 2.3 of this
Agreement''.
Article 6--Non-Participation in Further Proceedings
CPB and any Covered Entity making Web Site Transmissions in
reliance on this Agreement shall not directly or indirectly
participate as a party, amicus curiae or otherwise, or in any manner
give evidence or otherwise support or assist, in any further
proceedings to determine royalty rates and terms for digital audio
transmission or the reproduction of Ephemeral Phonorecords under
Section 112 or 114 of the Copyright Act for all or any part of the
Term, including Digital Performance Right in Sound Recordings and
Ephemeral Recordings, Docket No. 2009-1 CRB Webcasting III, any
appeal of the determination in such case, any proceedings on remand
from such an appeal, or any other related proceedings, unless
subpoenaed on petition of a third party (without any action by CPB
or a Covered Entity to encourage such a petition) and ordered to
testify in such proceeding. Notwithstanding anything to the contrary
herein, any entity that is eligible to be treated as a ``Covered
Entity'' but that that does not elect to be treated as a Covered
Entity may elect to participate in such proceedings.
Article 7--Term and Termination
7.1 Term. The term of this Agreement commences as of January 1,
2011, and ends as of December 31, 2015 (``Term''). Through August
27, 2009, CPB shall have the right to rescind this Agreement in its
entirety by notifying SoundExchange in writing that it wishes to
exercise such right; provided however, that CPB may only exercise
such right in the event that the Board of Directors of CPB fails to
approve CPB's entering into the Agreement. As conditions precedent
to reliance on the terms of this Agreement by any Covered Entity,
(a) CPB must pay the License Fee as and when specified in Section
4.1, and (b) NPR must withdraw from participation in the proceeding
before the Copyright Royalty Judges entitled Digital Performance
Right in Sound Recordings and Ephemeral Recordings, Docket No. 2009-
1 CRB Webcasting III (see 74 FR 318 (Jan. 5, 2009)) by no later than
September 3, 2009 (which NPR has agreed to do if CPB does not
exercise its right of rescission).
7.2 Mutual Termination. This Agreement may be terminated in
writing upon mutual agreement of the Parties.
7.3 Consequences of Termination
(a) Survival of Provisions. In the event of the expiration or
termination of this Agreement for any reason, the terms of this
Agreement shall immediately become null and void, and cannot be
relied upon for making any further Web Site Performances or
Ephemeral Phonorecords, except that (i) Articles 6 and 8 and
Sections 2.3, 2.4, 3.3, 5.2, 5.3 and 7.3 shall remain in full force
and effect; and (ii) Article 4 and Section 5.1 shall remain in
effect after the expiration or termination of this Agreement to the
extent obligations under Article 4 or Section 5.1 accrued prior to
any such termination or expiration.
(b) Applicability of Copyright Law. Any Web Site Performances
made by a Covered Entity or other Originating Public Radio Station
in violation of the terms of this Agreement or Section 112 or 114 or
their implementing regulations (except to the extent such
implementing regulations are inconsistent with this Agreement),
outside the scope of this Agreement, or after the expiration or
termination of this Agreement for any reason shall be fully subject
to, among other things, the copyright owners' rights under 17 U.S.C.
106(6), the remedies in 17 U.S.C. 501 et seq., the provisions of 17
U.S.C. 112(e) and 114, and their implementing regulations unless the
Parties have entered into a new agreement for such Web Site
Performances.
Article 8--Miscellaneous
8.1 Applicable Law and Venue. This Agreement shall be governed
by, and construed in accordance with, the laws of the District of
Columbia (without giving effect to conflicts of law principles
thereof). All actions or proceedings arising directly or indirectly
from or in connection with this Agreement shall be litigated only in
the United States District Court for the District of Columbia
located in Washington, DC, or if it does not have subject matter
jurisdiction, other courts located in the District of Columbia. The
Parties and Covered Entities, to the extent permitted under their
State or Tribal law, consent to the jurisdiction and venue of the
foregoing court and consent that any process or notice of motion or
other application to said court or a judge thereof may be served
inside or outside the District of Columbia by registered mail,
return receipt requested, directed to the Person for which it is
intended at its address set forth in this Agreement (and service so
made shall be deemed complete five (5) days after the same has been
posted as aforesaid) or by personal service or in such other manner
as may be permissible under the rules of that court.
8.2 Rights Cumulative. The remedies provided in this Agreement
and available under applicable law shall be cumulative and shall not
preclude assertion by any Party of any other rights or the seeking
of any other remedies against the other Party hereto. This Agreement
shall not constitute a waiver of any violation of Section 112 or 114
or their implementing regulations (except to the extent such
implementing regulations are inconsistent with this Agreement). No
failure to exercise and no delay in exercising any right, power or
privilege shall operate as a waiver of such right, power or
privilege. Neither this Agreement nor any such failure or delay
shall give rise to any defense in the nature of laches or estoppel.
No single or partial exercise of any right, power or privilege
granted under this Agreement or available under applicable law shall
preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. No waiver by either Party of
full performance by the other Party in any one or more instances
shall be a waiver of the right to require full and complete
performance of this Agreement and of obligations under applicable
law thereafter or of the right to exercise the remedies of
SoundExchange under Section 3.4.
8.3 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective
and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law,
such provisions shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
8.4 Amendment. This Agreement may be modified or amended only by
a writing signed by the Parties.
8.5 Entire Agreement. This Agreement expresses the entire
understanding of the Parties and supersedes all prior and
contemporaneous agreements and undertakings of the Parties with
respect to the subject matter hereof.
8.6 Headings. The titles used in this Agreement are used for
convenience only and are not to be considered in construing or
interpreting this Agreement.
In Witness Whereof, the Parties hereto have executed this
Agreement as of the date first above written.
Attachment 1--Reporting
1. Definitions. The following terms shall have the meaning set
forth below for purposes of this Attachment 1. All other capitalized
terms shall have the meaning set forth in Article 1 of the
Agreement.
(a) ``Content Logs'' shall have the meaning set forth in Section
3(a)(ii) of this Attachment 1.
(b) ``Major Format Group'' shall mean each of the following
format descriptions characterizing the programming offered by
various Covered Entities: (i) Classical; (ii) jazz; (iii) music mix;
(iv) news and information; (v) news/classical; (vi) news/jazz; (vii)
news/music mix; and (viii) adult album alternative. A Covered
Entity's Major Format Group is determined based on the format
description best describing the programming of the principal
broadcast service offered by the Covered Entity and will include all
channels streamed.
(c) ``Reporting Data'' shall mean, for each Sound Recording for
which Reporting Data is to be provided, (1) the relevant Covered
Entity (including call sign and community of license of any
terrestrial broadcast station and any Side Channel(s)); (2) the
title of the song or track performed; (3) the featured recording
artist, group, or orchestra; (4) the title of the commercially
available album or other product on which the Sound Recording is
found; (5) the marketing label of the commercially available album
or other product on which the sound recording is found; and (6) play
frequency.
2. General. All data required to be provided hereunder shall be
provided to SoundExchange electronically in the manner provided in
37 CFR 370.3(d), except to the extent the parties agree otherwise.
CPB shall consult with SoundExchange in advance
[[Page 40624]]
concerning the content and format of all data to be provided
hereunder, and shall provide data that is accurate, to the best of
CPB's and the relevant Covered Entity's knowledge, information and
belief. The methods used to make estimates, predictions and
projections of data shall be subject to SoundExchange's prior
written approval, which shall not be unreasonably withheld.
3. Data Collection and Reporting. CPB shall provide data
regarding Web Site Performances during the Term to SoundExchange,
and Covered Entities shall provide such data to CPB, consistent with
the following terms:
(a) ATH and Content Logs. For each calendar quarter during the
Term:
(i) Music ATH Reporting. CPB shall provide reports (the ``ATH
Reports'') of Music ATH by all Covered Entities. Such ATH reports
shall be accompanied by the Content Logs described in Section
3(a)(ii) for the periods described therein for all Covered Entities.
All ATH Reports and Content Logs for a quarter shall be provided by
CPB together in one single batch, but all data shall be broken out
by Covered Entity and identify each Covered Entity's Major Format
Group. The ATH Reports shall be in a form similar to CPB's Streaming
Census Report dated October 18, 2007, except as otherwise provided
in this Section 3(a)(i).
(ii) Reporting Period and Data. The information about Music ATH
referenced in Section 3(a)(i) shall be collected from Covered
Entities for two 7-consecutive-day reporting periods per quarter.
The ATH Reports shall be provided within thirty (30) days of the end
of each calendar quarter. During these reporting periods, Covered
Entities shall prepare logs containing Reporting Data for all their
Web Site Performances (``Content Logs''). These Content Logs shall
be compared with server-based logs of Music ATH throughout the
reporting period before the ATH Report is submitted to
SoundExchange.
(iii) Additional Data Reporting. Each quarter, CPB shall, for
Covered Entities representing the highest 30% of reported Music ATH,
provide SoundExchange Reporting Data collected continuously during
each 24 hour period for the majority of their Web Site Performances,
along with the Covered Entity's Music ATH, for the relevant quarter.
If during any calendar quarter of the Term, additional Covered
Entities, in the ordinary course of business, collect Reporting Data
continuously during each 24 hour period for the majority of their
Web Site Performances, CPB shall provide SoundExchange such data,
along with each such Covered Entity's Music ATH, for the relevant
quarter.
(b) ATH and Format Surveys. CPB shall semiannually survey all
Covered Entities to ascertain the number, format and Music ATH of
all channels (including but not limited to Side Channels) over which
such Covered Entities make Web Site Performances. CPB shall provide
the results of such survey to SoundExchange within sixty (60) days
after the end of the semiannual period to which it pertains.
(c) Consolidated Reporting. Each quarter, CPB shall provide the
information required by this Section 3 in one delivery to
SoundExchange, with a list of all Covered Entities indicating
whether any are not reporting for such quarter.
(d) Timing. Except as otherwise provided above, all information
required to be provided to SoundExchange under this Section 3 shall
be provided as soon as practicable, and in any event by no later
than sixty (60) days after the end of the quarter to which it
pertains. Such data shall be provided in a format consistent with
Attachment 2.
Attachment 2--Reporting Format
1. Format for Reporting Data. All Reporting Data provided under
Attachment 1, Section 3(a)(ii) shall be delivered to SoundExchange
in accordance with the following format:
Column 1 Station or Side Channel
Column 2 Sound Recording Title
Column 3 Featured Artist, Group or Orchestra
Column 4 Album
Column 5 Marketing Label
Column 6 Play Frequency
2. Format for Music ATH. All Music ATH reporting by Covered
Entities under Attachment 1 shall be delivered to SoundExchange in
accordance with the following format:
Column 1 Station or Side Channel
Column 2 Major Format Group
Column 3 ATH
Column 4 Reporting Period
3. Major Format Groups. All requirements to provide ``Major
Format Group'' as that term is defined in Attachment 1, Section
1(b), shall correspond with one of the following:
Major Format Groups
Classical
Jazz
Music Mix
News and Information
News/Classical
News/Jazz
News/Music Mix
Adult Album Alternative
Appendix D--Agreed Rates and Terms for Noncommercial Webcasters
Article 1--Definitions
1.1 General. In general, words used in the rates and terms set
forth herein (the ``Rates and Terms'') and defined in 17 U.S.C.
112(e) or 114 or 37 CFR Part 380 shall have the meanings specified
in those provisions as in effect on the date hereof, with such
exceptions or clarifications set forth in Section 1.2.
1.2 Additional Definitions
(a) ``Aggregate Tuning Hour'' or ``ATH'' shall have the same
meaning as set forth in the applicable regulations at 37 CFR
380.2(a) as it existed on July 30, 2009.
(b) ``Broadcast Retransmissions'' shall mean Eligible
Transmissions that are retransmissions of terrestrial over-the-air
broadcast programming transmitted by the Noncommercial Webcaster
through its AM or FM radio station, including ones with substitute
advertisements or other programming occasionally substituted for
programming for which requisite licenses or clearances to transmit
over the Internet have not been obtained. For the avoidance of
doubt, a Broadcast Retransmission does not include programming
transmitted on an Internet-only side channel.
(c) ``Eligible Transmission'' shall mean an eligible
nonsubscription transmission made by a Noncommercial Webcaster over
the Internet.
(d) ``Noncommercial Microcaster'' shall mean a Noncommercial
Webcaster that for any of its channels or stations over which it
transmits Broadcast Retransmissions, and for all of its channels and
stations over which it transmits other Eligible Transmissions in the
aggregate, in any calendar year in which it is to be considered a
Noncommercial Microcaster, meets the following additional
eligibility criteria: (i) During the prior year did not make
eligible nonsubscription transmissions exceeding 44,000 aggregate
tuning hours; and (ii) during the applicable year reasonably does
not expect to make eligible nonsubscription transmissions exceeding
44,000 aggregate tuning hours; provided that, one time during the
period 2006-2015, a Noncommercial Webcaster that qualified as a
Noncommercial Microcaster under the foregoing definition as of
January 31 of one year, elected Noncommercial Microcaster status for
that year, and unexpectedly made Eligible Transmissions on one or
more channels or stations in excess of 44,000 aggregate tuning hours
during that year, may choose to be treated as a Noncommercial
Microcaster during the following year notwithstanding clause (i)
above if it implements measures reasonably calculated to ensure that
it will not make Eligible Transmissions exceeding 44,000 aggregate
tuning hours during that following year. Without limitation, as to
channels or stations over which a Noncommercial Webcaster transmits
Broadcast Retransmissions, the Noncommercial Webcaster may elect
Noncommercial Microcaster status only with respect to its channels
or stations that meet both of the foregoing criteria.
(e) ``Noncommercial Webcaster'' shall mean a noncommercial
webcaster as defined in 17 U.S.C. 114(f)(5)(E)(i). A Noncommercial
Webcaster that owns or operates multiple terrestrial AM or FM radio
stations may elect to treat each such terrestrial AM or FM radio
station as a separate Noncommercial Webcaster.
(f) ``SoundExchange'' shall mean SoundExchange, Inc. and shall
include its successors and assigns.
Article 2--Agreement Pursuant to Webcaster Settlement Act of 2009
2.1 Availability of Rates and Terms. Pursuant to the Webcaster
Settlement Act of 2009, and subject to the provisions set forth
below, a Noncommercial Webcaster may elect to be subject to the
rates and terms set forth herein (the ``Rates and Terms'') in their
entirety, with respect to such Noncommercial Webcaster's Eligible
Transmissions and related ephemeral recordings, for any calendar
year that it qualifies as a Noncommercial Webcaster during the
period beginning on January 1, 2006, and ending on December 31,
2015, in lieu of other rates and
[[Page 40625]]
terms from time to time applicable under 17 U.S.C. 112(e) and 114,
by complying with the procedure set forth in Section 2.2 hereof. Any
person or entity that does not satisfy the eligibility criteria to
be a Noncommercial Webcaster and make a timely election pursuant to
Section 2.2 must comply with otherwise applicable rates and terms.
2.2 Election Process in General. A Noncommercial Webcaster that
wishes to elect to be subject to these Rates and Terms, in lieu of
any royalty rates and terms that otherwise might apply under 17
U.S.C. 112(e) and 114, for any calendar year that it qualifies as a
Noncommercial Webcaster during the period beginning on January 1,
2006, and ending on December 31, 2015, shall submit to SoundExchange
a completed and signed election form (available on the SoundExchange
Web site at http://www.soundexchange.com) by no later than January
31 of the applicable year, except that election forms for 2006-2009
shall be due by no later than September 15, 2009. Notwithstanding
the immediately preceding sentence, if a Noncommercial Webcaster has
not previously made digital audio transmissions of sound recordings
under the section 114 statutory license, the Noncommercial Webcaster
may make its election by no later than 30 days after the
Noncommercial Webcaster begins making such transmissions under the
section 114 statutory license. On any such election form, the
Noncommercial Webcaster must, among other things, certify that it
qualifies as a Noncommercial Webcaster, and SoundExchange shall
require only such information on that form as is reasonably
necessary to determine the Noncommercial Webcaster's election. If a
Noncommercial Webcaster has elected to be treated as a Noncommercial
Webcaster in any calendar year, that election shall apply to
subsequent calendar years unless the Noncommercial Webcaster
notifies SoundExchange by January 31 of the relevant year that it is
revoking that election in favor of otherwise applicable rates.
Notwithstanding anything else in these Rates and Terms, a person or
entity otherwise qualifying as a Noncommercial Webcaster that has
participated in any way in the appeal of the Final Determination of
the Copyright Royalty Judges concerning royalty rates and terms
under Sections 112(e) and 114 of the Copyright Act for the period
January 1, 2006, through December 31, 2010 published in the Federal
Register at 72 FR 24084 (May 1, 2007) (the ``Final Determination''),
any proceedings before the Copyright Royalty Judges on remand from
such appeal, or any proceeding before the Copyright Royalty Judges
to determine royalty rates and terms under Sections 112(e) and 114
of the Copyright Act for the period January 1, 2011, through
December 31, 2015 (including Docket No. 2009-1 CRB Webcasting III
and Docket No. 2009-2 CRB New Subscription II, as noticed in the
Federal Register at 74 FR 318-20 (Jan. 5, 2009)) shall not have the
right to elect to be treated as a Noncommercial Webcaster or claim
the benefit of these Rates and Terms, unless, prior to submitting to
SoundExchange a completed and signed election form as contemplated
by this Section 2.2, it withdraws from (a) any such proceedings
before the Copyright Royalty Judges and (b) the appeal of the Final
Determination if the U.S. Court of Appeals of the DC Circuit still
retains jurisdiction over that appeal at the time such election is
made.
2.3 Election of Noncommercial Microcaster Status. A
Noncommercial Webcaster that elects to be subject to these Rates and
Terms and qualifies as a Noncommercial Microcaster may elect to be
treated as a Noncommercial Microcaster for any one or more calendar
years that it qualifies as a Noncommercial Microcaster. To do so,
the Noncommercial Webcaster shall submit to SoundExchange a
completed and signed election form (available on the SoundExchange
Web site at http://www.soundexchange.com) by no later than January
31 of the applicable year, except that election forms for 2006-2009
shall be due by no later than September 15, 2009. Notwithstanding
the immediately preceding sentence, if a Noncommercial Webcaster has
not previously made digital audio transmissions of sound recordings
under the section 114 statutory license, the Noncommercial Webcaster
may make its election to be treated as a Noncommercial Microcaster
by no later than 30 days after the Noncommercial Webcaster begins
making such transmissions under the section 114 statutory license.
On any such election form, the Noncommercial Webcaster must, among
other things, certify that it qualifies as a Noncommercial
Microcaster; provide information about its prior year aggregate
tuning hours and the genres of music it uses; and use commercially
reasonable efforts to provide such other information as may be
reasonably requested by SoundExchange for use in creating a royalty
distribution proxy. Even if a Noncommercial Webcaster has once
elected to be treated as a Noncommercial Microcaster, it must make a
separate, timely election in each subsequent year in which it wishes
to be treated as a Noncommercial Microcaster.
2.4 Representation of Compliance and Non-waiver. By accepting an
election by a transmitting entity or payments or reporting made
pursuant to these Rates and Terms, SoundExchange does not
acknowledge that the transmitting entity qualifies as a
Noncommercial Webcaster or Noncommercial Microcaster or that it has
complied with the eligibility or other requirements of the statutory
licenses under Sections 112(e) and 114 of the Copyright Act
(including these Rates and Terms). SoundExchange is not in a
position to, and does not, make determinations as to whether each of
the many services that rely on the statutory licenses is eligible
for statutory licensing or any particular royalty payment
classification, nor does it continuously verify that such services
are in full compliance with all applicable requirements.
Accordingly, a transmitting entity agrees that SoundExchange's
acceptance of its election, payment or reporting does not give or
imply any acknowledgment that it is in compliance with the
requirements of the statutory licenses (including these Rates and
Terms). SoundExchange and copyright owners reserve all their rights
to take enforcement action against a transmitting entity that is not
in compliance with those requirements.
Article 3--Scope
3.1 In General. In consideration for the payment of royalties
pursuant to Article 4 and such other consideration specified herein,
Noncommercial Webcasters that have made a timely election to be
subject to these Rates and Terms as provided in Section 2.2 are
entitled to publicly perform sound recordings within the scope of
the statutory license provided by Section 114 by means of Eligible
Transmissions, and to make related ephemeral recordings for use
solely for purposes of such Eligible Transmissions within the scope
of Section 112(e), in accordance with and subject to the limitations
set forth in these Rates and Terms and with the provisions of 17
U.S.C. 112(e) and 114 and their implementing regulations (except as
otherwise specifically provided herein), in lieu of other rates and
terms from time to time applicable under 17 U.S.C. 112(e) and 114,
for any calendar year that they qualify as a Noncommercial
Webcaster, and have made such an election, during the period
beginning on January 1, 2006, and ending on December 31, 2015.
3.2 Applicability to All Eligible Services Operated by or for a
Noncommercial Webcaster. If a Noncommercial Webcaster has made a
timely election to be subject to these Rates and Terms as provided
in Section 2.2, these Rates and Terms shall apply to all Eligible
Transmissions made by or for the Noncommercial Webcaster that
qualify as Performances under 37 CFR 380.2(i), and related ephemeral
recordings. For the avoidance of doubt, a Noncommercial Webcaster
may not rely upon these Rates and Terms for its Eligible
Transmissions of one broadcast channel or station and upon different
Section 114 rates and terms for its Eligible Transmissions of other
broadcast channels or stations.
3.3 No Implied Rights. These Rates and Terms extend only to
electing Noncommercial Webcasters and grant no rights, including by
implication or estoppel, to any other person or except as
specifically provided herein. Without limiting the generality of the
foregoing, these Rates and Terms do not grant (i) any copyright
ownership interest in any sound recording; (ii) any trademark or
trade dress rights; (iii) any rights outside the United States (as
defined in 17 U.S.C. 101); (iv) any rights of publicity or rights to
any endorsement by SoundExchange or any other person; or (v) any
rights with respect to performances or reproductions outside the
scope of these Rates and Terms or the statutory licenses under 17
U.S.C. 112(e) and 114.
Article 4--Royalties
4.1 Minimum Fees. Each Noncommercial Webcaster shall pay
SoundExchange an annual, nonrefundable minimum fee of $500 for each
of its individual channels or stations over which it makes Eligible
Transmissions, including each of its individual side channels and
each of its individual Broadcast Retransmission stations, for each
calendar year or part of a calendar year during 2006-2015 during
which the Noncommercial
[[Page 40626]]
Webcaster is a licensee pursuant to licenses under 17 U.S.C. 112(e)
and 114. Upon payment of the minimum fee, the Noncommercial
Webcaster will receive a credit in the amount of the minimum fee
against any royalties payable hereunder for the same calendar year
for the same channel or station. In addition, an electing
Noncommercial Microcaster also shall pay a $100 annual fee (the
``Proxy Fee'') to SoundExchange for the reporting waiver discussed
in Section 5.1. Minimum fees and, where applicable, the Proxy Fee
shall be paid by January 31 of each year.
4.2 Royalty Rates
(a) The nonrefundable minimum fee payable under Section 4.1
shall constitute full payment for Eligible Transmissions totaling
not more than 159,140 aggregate tuning hours per month on the
relevant channel or station. If, in any month, a Noncommercial
Webcaster makes Eligible Transmissions on a channel or station in
excess of 159,140 aggregate tuning hours, the Noncommercial
Webcaster shall pay SoundExchange additional royalties for those
Eligible Transmissions in excess of 159,140 aggregate tuning hours
at the following rates, subject to an election as provided in
Section 4.3:
(i) 2006-2010:
(a) $0.0002176 per performance; or
(b) $0.00251 per ATH, except in the case of channels or stations
where substantially all of the programming is reasonably classified
as news, talk, sports or business programming, in which case the
royalty rate shall be $.0002 (.02[cent]) per aggregate tuning hour;
(ii) 2011-2015:
------------------------------------------------------------------------
Per
Year performance
rate
------------------------------------------------------------------------
2011.................................................... $0.00057
2012.................................................... 0.00067
2013.................................................... 0.00073
2014.................................................... 0.00077
2015.................................................... 0.00083
------------------------------------------------------------------------
(b) For a transitional period, to enable Noncommercial
Webcasters to implement systems that enable payment on a per
performance basis, for years 2011-2013, the Noncommercial Webcaster
may pay for those Eligible Transmissions in excess of 159,140
aggregate tuning hours on an ATH basis, assuming 12 performances per
hour, except in the case of channels or stations where substantially
all of the programming is reasonably classified as news, talk,
sports or business programming, in which case the Noncommercial
Webcaster may assume one performance per hour, and calculate its
payment based on the per performance rates in Section 4.2(a) above.
In addition, in years 2014-2015, for a Noncommercial Webcaster
unable to calculate actual total performances and not required to
report ATH or actual total performances under Section 5.3, the
Noncommercial Webcaster may pay for those Eligible Transmissions in
excess of 159,140 aggregate tuning hours on an ATH basis using the
estimates set forth in this provision and calculating its payment
based on the per performance rates in Section 4.2(a) above.
SoundExchange may distribute royalties paid on the basis of ATH
hereunder in accordance with its generally applicable methodology
for distributing royalties paid on such basis.
(c) For the avoidance of doubt, a Noncommercial Webcaster shall
calculate its aggregate tuning hours of Eligible Transmissions on
each channel or station each month and shall pay any additional
royalties owed for such month as provided above in this Section 4.2,
but the Noncommercial Webcaster shall not owe any additional
royalties for any subsequent months until such time as the
Noncommercial Webcaster again exceeds the 159,140 aggregate tuning
hour threshold on any channel or station during a given month.
4.3 Election of Per Performance or Aggregate Tuning Hour Rate. A
Noncommercial Webcaster must consistently pay any additional
royalties hereunder based on either the per performance royalties or
the aggregate tuning hour royalties set forth in Section 4.2 for all
of its channels and stations within any calendar year. The first
time each year a Noncommercial Webcaster is required to pay
additional royalties under Section 4.2, the Noncommercial Webcaster
shall elect to pay all of its additional royalties under Section 4.2
for all of its channels and stations during the remainder of the
year based on either the per performance royalties or the aggregate
tuning hour royalties set forth in Section 4.2. Thus, for example, a
Noncommercial Webcaster may not in one month when its Eligible
Transmissions exceed 159,140 aggregate tuning hours calculate its
additional royalties based on the per performance royalty and in
another month calculate its additional royalties based on the
aggregate tuning hour royalty.
4.4 Ephemeral Royalty. The royalty payable under 17 U.S.C.
112(e) for any ephemeral reproductions made by a Noncommercial
Webcaster and covered hereby is deemed to be included within the
royalty payments set forth above. SoundExchange may allocate
payments hereunder between the statutory licenses under Sections
112(e) and 114 in the same manner as statutory webcasting royalties
for the period 2011-2015.
4.5 Statements of Account. A Noncommercial Webcaster shall
submit to SoundExchange a monthly statement of account identifying
its aggregate tuning hours of Eligible Transmissions for the month,
regardless of whether the Noncommercial Webcaster is obligated to
pay additional royalties under Section 4.2. Statements of Account,
together with any payments required by Section 4.2, shall be due by
the 45th day after the end of each month. Each statement of account
shall identify (i) the name of the Noncommercial Webcaster, exactly
as it appears on its notice of use, and (ii) if the statement covers
a single AM or FM radio station only, the call letters of the
station.
4.6 Past Periods. Notwithstanding anything else in this
Agreement, to the extent that a Noncommercial Webcaster that elects
to be subject to these Rates and Terms has not paid royalties for
all or any part of the period beginning on January 1, 2006, and
ending on July 31, 2009, any amounts payable under these Rates and
Terms for Eligible Transmissions during such period for which
payment has not previously been made shall be paid by no later than
September 15, 2009, and for purposes of Section 4.7, any such
outstanding payments shall be considered due no earlier than July
30, 2009. If a Noncommercial Webcaster has paid royalties to
SoundExchange under the 17 U.S.C. 112(e) and 114 statutory licenses
that exceed the amount due under these Rates and Terms,
SoundExchange shall credit the amount of such overpayment against
anticipated future royalties owed by that Noncommercial Webcaster
under these Rates and Terms. If the Noncommercial Webcaster
reasonably anticipates that it will not incur royalty payment
obligations under these Rates and Terms that exceed the amount of
such overpayment on or before December 31, 2010, SoundExchange shall
return any excess amounts previously paid by that Noncommercial
Webcaster.
4.7 Late Fees. A Noncommercial Webcaster shall pay a late fee
for each instance in which any payment, any Statement of Account or
any report of use is not received by SoundExchange in compliance
with these Rates and Terms and applicable regulations by the due
date. The amount of the late fee shall be 1.5% of the late payment,
or 1.5% of the payment associated with a late Statement of Account
or report of use, per month, compounded monthly, or the highest
lawful rate, whichever is lower. The late fee shall accrue from the
due date of the payment, statement of account or report of use until
a fully-compliant payment, statement of account or report of use is
received by SoundExchange, provided that, in the case of a timely
provided but noncompliant statement of account or report of use,
SoundExchange has notified the Noncommercial Webcaster within 90
days regarding any noncompliance that is reasonably evident to
SoundExchange.
Article 5--Reporting
5.1 In General. On an experimental basis, for purposes of these
Rates and Terms only, and in light of the unique business and
operational circumstances currently existing with respect to these
Noncommercial Webcasters, these Rates and Terms require less than
census reporting in certain circumstances and require full census
reporting in other circumstances. SoundExchange hopes that offering
graduated reporting options to electing Noncommercial Webcasters
will promote compliance with statutory license obligations and
thereby increase the pool of royalties available to be distributed
to copyright owners and performers.
5.2 Noncommercial Microcasters. Electing Noncommercial
Microcasters shall not be required to provide reports of their use
of sound recordings for Eligible Transmissions and related ephemeral
recordings. The immediately preceding sentence applies even if the
Noncommercial Microcaster actually makes Eligible Transmissions for
the year exceeding 44,000 aggregate tuning hours, so long as it
qualified
[[Page 40627]]
as a Noncommercial Microcaster at the time of its election for that
year. Instead, SoundExchange shall distribute the aggregate
royalties paid by electing Noncommercial Microcasters based on proxy
usage data in accordance with a methodology adopted by
SoundExchange's Board of Directors. In addition to minimum royalties
hereunder, electing Noncommercial Microcasters shall pay to
SoundExchange a $100 Proxy Fee to defray costs associated with this
reporting waiver, including development of proxy usage data.
SoundExchange hopes that selection of a proxy believed by
SoundExchange to represent fairly the playlists of the smallest
webcasters will allow payment to more copyright owners and
performers than would be possible with any other reasonably
available option. If it is practicable for a Noncommercial Webcaster
to report its usage pursuant to Section 5.4, it may wish not to
elect Noncommercial Microcaster status.
5.3 Census Reporting for Services Paying Usage-Based Additional
Royalties for 2011-2015. Beginning in 2011, a Noncommercial
Webcaster must report its usage as provided in this Section 5.3 in
the year following any year in which its average monthly Eligible
Transmissions exceeds 159,140 aggregate tuning hours (i) on any
channel or station over which it transmits Broadcast
Retransmissions, or (ii) for all of its channels and stations over
which it transmits other Eligible Transmissions in the aggregate.
Such Noncommercial Webcasters shall submit reports of use in full
compliance with then-applicable regulations (presently 37 CFR
370.3), except that notwithstanding the provisions of applicable
regulations from time to time in effect, Noncommercial Webcasters
shall submit reports of use on a census reporting basis (i.e.,
reports of use shall include every sound recording performed in the
relevant quarter and the number of plays thereof) and may report on
an aggregate tuning hour basis as set forth in 5.4(a) below, and the
provisions of Section 5.5 shall apply. Such reports must be
submitted for any such channel or station over which it transmits
Broadcast Retransmissions, and for all of its channels and stations
over which it transmits other Eligible Transmissions in the
aggregate, if the same had average monthly Eligible Transmissions
exceeding 159,140 aggregate tuning hours. For the avoidance of
doubt, if a Noncommercial Webcaster providing reports on a census
basis pursuant to this provision does not make average monthly
Eligible Transmissions exceeding 159,140 aggregate tuning hours on a
channel or station for which it is submitting census reports
pursuant to this section in a given calendar year, the Noncommercial
Webcaster is entitled to revert to providing reports on a sample
basis in accordance with Section 5.4(b) (i.e., two weeks per
calendar quarter) beginning in the following calendar year.
5.4 Other Reporting by Noncommercial Webcasters. A Noncommercial
Webcaster that is not a Noncommercial Microcaster and is not
required to report its usage under Section 5.3 must report its usage
as provided in this Section 5.4. Such Noncommercial Webcasters shall
submit reports of use in compliance with then-applicable regulations
(presently 37 CFR 370.3), except that notwithstanding the provisions
of applicable regulations from time to time in effect:
(a) Such Noncommercial Webcasters may report on an aggregate
tuning hour basis (i.e., reporting their total ATH on a channel,
program or station) in lieu of providing actual total performances.
(b) Such Noncommercial Webcasters may report on a sample basis
as presently provided in 37 CFR 370.3(c)(3) (i.e., reporting their
usage for two weeks per calendar quarter).
(c) The provisions of Section 5.5 shall apply.
5.5 Detailed Requirements for Reports of Use. Notwithstanding
the provisions of applicable regulations from time to time in
effect, the following provisions shall apply to all reports of use
required hereunder:
(a) Noncommercial Webcasters shall submit reports of use to
SoundExchange on a quarterly basis.
(b) Noncommercial Webcasters shall submit reports of use by no
later than the 45th day following the last day of the quarter to
which they pertain.
(c) Noncommercial Webcasters that are broadcasters transmitting
Broadcast Retransmissions shall either submit a separate report of
use for each of their stations transmitting Broadcast
Retransmissions, or a collective report of use covering all of their
stations but identifying usage on a station-by-station basis.
(d) Noncommercial Webcasters shall transmit each report of use
in a file the name of which includes (i) the name of the
Noncommercial Webcaster, exactly as it appears on its notice of use,
and (ii) if the report covers a single AM or FM radio station only,
the call letters of the station.
Article 6--Additional Provisions
6.1 Applicable Regulations. To the extent not inconsistent with
the terms herein, use of sound recordings by Noncommercial
Webcasters shall be governed by, and Noncommercial Webcasters shall
comply with, applicable regulations, including 37 CFR Parts 370 and
380. Without limiting the foregoing, the provisions of applicable
regulations for the retention of records and verification of
statutory royalty payments (presently 37 CFR 380.4(h) and 380.6)
shall apply hereunder. Noncommercial Webcasters shall cooperate in
good faith with any such verification, and the exercise by
SoundExchange of any right with respect thereto shall not prejudice
any other rights or remedies of SoundExchange or sound recording
copyright owners.
6.2 Participation in Proceedings. A Noncommercial Webcaster that
elects to be subject to these Rates and Terms agrees that it has
elected to do so in lieu of any different statutory rates and terms
that may otherwise apply during any part of the 2006-2015 period and
in lieu of participating at any time in a proceeding to set rates
and terms for any part of the 2006-2015 period. Thus, once a
Noncommercial Webcaster has elected to be subject to these Rates and
Terms, it shall not at any time directly or indirectly participate
as a party, intervenor, amicus curiae or otherwise, or in any manner
give evidence or otherwise support or assist except pursuant to a
subpoena or other formal discovery request, in any further
proceedings to determine royalty rates and terms for reproduction of
ephemeral phonorecords or digital audio transmission under Section
112(e) or 114 of the Copyright Act for all or any part of the period
2006-2015, including any appeal of the Final Determination, any
proceedings on remand from such an appeal, any proceeding before the
Copyright Royalty Judges to determine royalty rates and terms
applicable to the statutory licenses under Sections 112(e) and 114
of the Copyright Act for the period 2011-2015, any appeal of such
proceeding, or any other related proceedings.
6.3 Use of Agreement in Future Proceedings. Noncommercial
Webcasters and SoundExchange agree that neither the Webcaster
Settlement Act nor any provisions of these Rates and Terms shall be
admissible as evidence or otherwise taken into account in any
administrative, judicial, or other government proceeding involving
the setting or adjustment of the royalties payable for the public
performance or reproduction in ephemeral phonorecords or copies of
sound recordings, the determination of terms or conditions related
thereto, or the establishment of notice or recordkeeping
requirements by the Copyright Royalty Judges. These Rates and Terms
shall be considered as a compromise motivated by the unique
business, economic and political circumstances of Noncommercial
Webcasters, copyright owners and performers rather than as matters
that would have been negotiated in the marketplace between a willing
buyer and a willing seller. No person or entity may, in any way,
seek to use in any way these Rates and Terms in any such proceeding.
6.4 Effect of Direct Licenses. Any copyright owner may enter
into a voluntary agreement with any Noncommercial Webcaster setting
alternative rates and terms governing the Noncommercial Webcasters'
transmission of copyrighted works owned by the copyright owner, and
such voluntary agreement may be given effect in lieu of the Rates
and Terms set forth herein.
6.5 Default. A Noncommercial Webcaster shall comply with all the
requirements of these Rates and Terms. If it fails to comply in all
material respects with the requirements of these Rates and Terms,
SoundExchange may give written notice to the Noncommercial Webcaster
that, unless the breach is remedied within 30 days from the date of
receipt of notice, the Noncommercial Webcaster's authorization to
make public performances and ephemeral reproductions under these
Rates and Terms may be terminated upon further written notice. No
such cure period shall apply before termination in case of material
noncompliance that has been repeated multiple times so as to
constitute a pattern of noncompliance, provided that SoundExchange
has given repeated notices of noncompliance. Any transmission made
by a Noncommercial Webcaster outside the scope of Section 112(e) or
114 or these Rates and Terms, or after the expiration or termination
of these Rates and Terms shall be fully
[[Page 40628]]
subject to, among other things, the copyright owners' rights under
17 U.S.C. 106 and the remedies in 17 U.S.C. 501-506, and all
limitations, exceptions and defenses available with respect thereto.
Article 7--Miscellaneous
7.1 Applicable Law. These Rates and Terms shall be governed by,
and construed in accordance with, the laws of the District of
Columbia (without giving effect to conflicts of law principles
thereof). All actions or proceedings arising under these Rates and
Terms shall be litigated only in the United States District Court
for the District of Columbia located in Washington, DC, or if it
does not have subject matter jurisdiction, in other courts located
in Washington, DC. SoundExchange and Noncommercial Webcasters
consent to the jurisdiction and venue of the foregoing courts and
consent that any process or notice of motion or other application to
said courts or a judge thereof may be served inside or outside the
District of Columbia by registered mail, return receipt requested,
directed to the person for which it is intended at its last known
address (and service so made shall be deemed complete five (5) days
after the same has been posted as aforesaid) or by personal service
or in such other manner as may be permissible under the rules of
that court.
7.2 Rights Cumulative. The remedies provided in these Rates and
Terms and available under applicable law shall be cumulative and
shall not preclude assertion by any party of any other rights or the
seeking of any other remedies against another party hereto. These
Rates and Terms shall not constitute a waiver of any violation of
Section 112(e) or 114 or their implementing regulations (except to
the extent such implementing regulations are inconsistent with these
Rates and Terms). No failure to exercise and no delay in exercising
any right, power or privilege shall operate as a waiver of such
right, power or privilege. Neither these Rates and Terms nor any
such failure or delay shall give rise to any defense in the nature
of laches or estoppel. No single or partial exercise of any right,
power or privilege granted under these Rates and Terms or available
under applicable law shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No
waiver by any party of full performance by another party in any one
or more instances shall be a waiver of the right to require full and
complete performance of these Rates and Terms and of obligations
under applicable law thereafter.
7.3 Entire Agreement. These Rates and Terms represent the entire
and complete agreement between SoundExchange and a Noncommercial
Webcaster with respect to their subject matter and supersede all
prior and contemporaneous agreements and undertakings of
SoundExchange and a Noncommercial Webcaster with respect to the
subject matter hereof.
[FR Doc. E9-19299 Filed 8-11-09; 8:45 am]
BILLING CODE 1410-30-P