[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: 37CFR380.2]

[Page 728-729]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
        CHAPTER III--COPYRIGHT ROYALTY BOARD, LIBRARY OF CONGRESS
 
PART 380_RATES AND TERMS FOR CERTAIN ELIGIBLE NONSUBSCRIPTION TRANSMISSIONS, NEW SUBSCRIPTION SERVICES AND THE MAKING OF EPHEMERAL REPRODUCTIONS--Table of Contents
 
Sec. 380.2  Definitions.

    For purposes of this part, the following definitions shall apply:
    (a) Aggregate Tuning Hours (ATH) means the total hours of 
programming that the Licensee has transmitted during the relevant period 
to all Listeners within the United States from all channels and stations 
that provide audio programming consisting, in whole or in part, of 
eligible nonsubscription transmissions or noninteractive digital audio 
transmissions as part of a new subscription service, less the actual 
running time of any sound recordings for which the Licensee 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 
service transmitted one hour of programming to 10 simultaneous 
Listeners, the service's Aggregate Tuning Hours would equal 10. If 3 
minutes of that hour consisted of transmission of a directly licensed 
recording, the service's Aggregate Tuning Hours would equal 9 hours and 
30 minutes. As an additional example, if one Listener listened to a 
service for 10 hours (and none of the recordings transmitted during that 
time was directly licensed), the service's Aggregate Tuning Hours would 
equal 10.
    (b) Broadcaster is a type of Commercial Webcaster or Noncommercial 
Webcaster that owns and operates a terrestial AM or FM radio station 
that is licensed by the Federal Communications Commission.
    (c) Collective is the collection and distribution organization that 
is designated by the Copyright Royalty Judges. For the 2006-2010 license 
period, the Collective is SoundExchange, Inc.
    (d) Commercial Webcaster is a Licensee, other than a Noncommercial 
Webcaster, that makes eligible digital audio transmissions.
    (e) Copyright Owners are sound recording copyright owners who are 
entitled to royalty payments made under this part pursuant to the 
statutory licenses under 17 U.S.C. 112(e) and 114(f).

[[Page 729]]

    (f) Ephemeral Recording is a phonorecord created for the purpose of 
facilitating a transmission of a public performance of a sound recording 
under a statutory license in accordance with 17 U.S.C. 114(f), and 
subject to the limitations specified in 17 U.S.C.112(e).
    (g) Licensee is a person that has obtained a statutory license under 
17 U.S.C. 114, and the implementing regulations, to make eligible 
nonsubscription transmissions, or noninteractive digital audio 
transmissions as part of a new subscription service (as defined in 17 
U.S.C. 114(j)(8)), or that has obtained a statutory license under 17 
U.S.C. 112(e), and the implementing regulations, to make Ephemeral 
Recordings for use in facilitating such transmissions.
    (h) Noncommercial Webcaster is a Licensee that makes eligible 
digital audio transmissions and:
    (1) Is exempt from taxation under section 501 of the Internal 
Revenue Code of 1986 (26 U.S.C. 501),
    (2) Has applied in good faith to the Internal Revenue Service for 
exemption from taxation under section 501 of the Internal Revenue Code 
and has a commercially reasonable expectation that such exemption shall 
be granted, or
    (3) Is operated by a State or possession or any governmental entity 
or subordinate thereof, or by the United States or District of Columbia, 
for exclusively public purposes.
    (i) Performance is each instance in which any portion of a sound 
recording is publicly performed to a Listener by means of a digital 
audio transmission (e.g., the delivery of any portion of a single track 
from a compact disc to one Listener) but excluding the following:
    (1) A performance of a sound recording that does not require a 
license (e.g., a sound recording that is not copyrighted);
    (2) A performance of a sound recording for which the service has 
previously obtained a license from the Copyright Owner of such sound 
recording; and
    (3) An incidental performance that both:
    (i) Makes no more than incidental use of sound recordings including, 
but not limited to, brief musical transitions in and out of commercials 
or program segments, brief performances during news, talk and sports 
programming, brief background performances during disk jockey 
announcements, brief performances during commercials of sixty seconds or 
less in duration, or brief performances during sporting or other public 
events and
    (ii) Other than ambient music that is background at a public event, 
does not contain an entire sound recording and does not feature a 
particular sound recording of more than thirty seconds (as in the case 
of a sound recording used as a theme song).
    (j) Performers means the independent administrators identified in 17 
U.S.C. 114(g)(2)(B) and (C) and the parties identified in 17 U.S.C. 
114(g)(2)(D).
    (k) Qualified Auditor is a Certified Public Accountant.
    (l) Side Channel is a channel on the website of a broadcaster which 
channel transmits eligible transmissions that are not simultaneously 
transmitted over the air by the broadcaster.