[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: 37CFR382.11]

[Page 746-747]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
        CHAPTER III--COPYRIGHT ROYALTY BOARD, LIBRARY OF CONGRESS
 
  PART 382_RATES AND TERMS FOR DIGITAL TRANSMISSIONS OF SOUND RECORDINGS AND THE REPRODUCTION OF EPHEMERAL RECORDINGS BY PREEXISTING SUBSCRIPTION SERVICES AND 
PREEXISTING SATELLITE DIGITAL AUDIO RADIO SERVICES--Table of Contents
 
      Subpart B_Preexisting Satellite Digital Audio Radio Services
 
Sec. 382.11  Definitions.

    For purposes of this subpart, the following definitions shall apply:
    Collective is the collection and distribution organization that is 
designated by the Copyright Royalty Judges. For the 2007-2012 license 
period, the Collective is SoundExchange, Inc.
    Copyright Owners are sound recording copyright owners who are 
entitled to royalty payments made under this subpart pursuant to the 
statutory licenses under 17 U.S.C. 112(e) and 114(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).
    GAAP shall mean generally accepted accounting principles in effect 
from time to time in the United States.
    Gross Revenues. (1) Gross Revenues shall mean revenue recognized by 
the Licensee in accordance with GAAP from the operation of an SDARS, and 
shall be comprised of the following:
    (i) Subscription revenue recognized by Licensee directly from 
residential U.S. subscribers for Licensee's SDARS; and
    (ii) Licensee's advertising revenues, or other monies received from 
sponsors, if any, attributable to advertising on channels other than 
those that use

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only incidental performances of sound recordings, less advertising 
agency and sales commissions.
    (2) Gross Revenues shall include such payments as set forth in 
paragraphs (1)(i) and (ii) of the definition of ``Gross Revenues'' to 
which Licensee is entitled but which are paid to a parent, wholly-owned 
subsidiary or division of Licensee.
    (3) Gross Revenues shall exclude:
    (i) Monies or other consideration attributable to the sale and/or 
license of equipment and/or other technology, including but not limited 
to bandwidth, sales of devices that receive the Licensee's SDARS and any 
taxes, shipping and handling fees therefor;
    (ii) Royalties paid to Licensee for intellectual property rights;
    (iii) Monies or other consideration received by Licensee from the 
sale of phonorecords and digital phonorecord deliveries;
    (iv) Sales and use taxes, shipping and handling, credit card, 
invoice, and fulfillment service fees;
    (v) Bad debt expense, and
    (vi) Revenues recognized by Licensee for the provision of
    (A) Current and future data services offered for a separate charge 
(e.g., weather, traffic, destination information, messaging, sports 
scores, stock ticker information, extended program associated data, 
video and photographic images, and such other telematics and/or data 
services as may exist from time to time);
    (B) Channels, programming, products and/or other services offered 
for a separate charge where such channels use only incidental 
performances of sound recordings;
    (C) Channels, programming, products and/or other services provided 
outside of the United States; and
    (D) Channels, programming, products and/or other services for which 
the performance of sound recordings and/or the making of ephemeral 
recordings is exempt from any license requirement or is separately 
licensed, including by a statutory license and, for the avoidance of 
doubt, webcasting, audio services bundled with television programming, 
interactive services, and transmissions to business establishments.
    Licensee is a person that has obtained a statutory license under 17 
U.S.C. 114, and the implementing regulations, to make transmissions over 
a preexisting satellite digital audio radio service, and 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.
    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).
    Qualified Auditor is a Certified Public Accountant.
    Residential means, with respect to a service, a service that may be 
licensed under the provisions of 17 U.S.C. 114(d)(2)(B); and, with 
respect to subscribers, subscribers to such a service.
    SDARS means the preexisting satellite digital audio radio services 
as defined in 17 U.S.C. 114(j)(10).
    Term means the period commencing January 1, 2007, and continuing 
through December 31, 2012.