[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR261.5]

[Page 657-658]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
                                CONGRESS
 
PART 261_RATES AND TERMS FOR ELIGIBLE NONSUBSCRIPTION TRANSMISSIONS AND THE MAKING OF EPHEMERAL REPRODUCTIONS--Table of Contents
 
Sec. 261.5  Confidential information.

    (a) For purposes of this part, ``Confidential Information'' shall 
include the statements of account, any information contained therein, 
including the amount of royalty payments, and any information pertaining 
to the statements of account reasonably designated as confidential by 
the Licensee submitting the statement.
    (b) Confidential Information shall not include documents or 
information

[[Page 658]]

that at the time of delivery to the Receiving Agent or a Designated 
Agent are public knowledge. The Receiving Agent or a Designated Agent 
that claims the benefit of this provision shall have the burden of 
proving that the disclosed information was public knowledge.
    (c) In no event shall the Receiving Agent or Designated Agent(s) use 
any Confidential Information for any purpose other than royalty 
collection and distribution and activities directly related thereto; 
Provided, however, that the Designated Agent may report Confidential 
Information provided on statements of account under this part in 
aggregated form, so long as Confidential Information pertaining to any 
Licensee or group of Licensees cannot directly or indirectly be 
ascertained or reasonably approximated. All reported aggregated 
Confidential Information from Licensees within a class of Licensees 
shall concurrently be made available to all Licensees then in such 
class. As used in this paragraph, the phrase ``class of Licensees'' 
means all Licensees paying fees pursuant to Sec. 261.4(a).
    (d) Except as provided in paragraph (c) of this section and as 
required by law, access to Confidential Information shall be limited to, 
and in the case of paragraphs (d)(3) and (d)(4) of this section shall be 
provided upon request, subject to resolution of any relevance or 
burdensomeness concerns and reimbursement of reasonable costs directly 
incurred in responding to such request, to:
    (1) Those employees, agents, consultants and independent contractors 
of the Receiving Agent or a Designated Agent, subject to an appropriate 
confidentiality agreement, who are engaged in the collection and 
distribution of royalty payments hereunder and activities directly 
related thereto, who are not also employees or officers of a Copyright 
Owner or Performer, and who, for the purpose of performing such duties 
during the ordinary course of employment, require access to the records;
    (2) An independent and qualified auditor, subject to an appropriate 
confidentiality agreement, who is authorized to act on behalf of the 
Receiving Agent or a Designated Agent with respect to the verification 
of a Licensee's statement of account pursuant to Sec. 261.6 or on 
behalf of a Copyright Owner or Performer with respect to the 
verification of royalty payments pursuant to Sec. 261.7;
    (3) In connection with future Copyright Arbitration Royalty Panel 
proceedings under 17 U.S.C. 114(f)(2) and 112(e), under an appropriate 
protective order, attorneys, consultants and other authorized agents of 
the parties to the proceedings, Copyright Arbitration Royalty Panels, 
the Copyright Office or the courts; and
    (4) In connection with bona fide royalty disputes or claims by or 
among Licensees, the Receiving Agent, Copyright Owners, Performers or 
the Designated Agent(s), under an appropriate confidentiality agreement 
or protective order, attorneys, consultants and other authorized agents 
of the parties to the dispute, arbitration panels or the courts.
    (e) The Receiving Agent or Designated Agent(s) and any person 
identified in paragraph (d) of this section shall implement procedures 
to safeguard all Confidential Information using a reasonable standard of 
care, but no less than the same degree of security used to protect 
Confidential Information or similarly sensitive information belonging to 
such Receiving Agent or Designated Agent(s) or person.
    (f) Books and records of a Licensee, the Receiving Agent and of a 
Designated Agent relating to the payment, collection, and distribution 
of royalty payments shall be kept for a period of not less than three 
(3) years.