FR Doc E7-7067

[Federal Register: April 17, 2007 (Volume 72, Number 73)]
[Proposed Rules]
[Page 19138-19144]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ap07-16]

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LIBRARY OF CONGRESS

37 CFR Part 381

[Docket No. 2006-2 CRB NCBRA]

Noncommercial Educational Broadcasting Statutory License

AGENCY: Copyright Royalty Board, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Copyright Royalty Judges are publishing for comment
certain royalty rates, proposed by the parties in the proceeding to
determine the rates and terms for the noncommercial educational
broadcasting statutory license contained in the Copyright Act.

DATES: Comments and objections, if any, are due on or before May 17,
2007.

ADDRESSES: An original, five paper copies, and one electronic copy in
Portable Document Format (PDF) on compact disk (an optical data storage
medium such as a CD-ROM, CD-R or CD-RW) or floppy diskette of a comment
or objection must be delivered to the Copyright Royalty Board in one of
the following ways: If hand delivered by a private party, the comment
or objection should be brought to the Copyright Office Public
Information Office in the James Madison Memorial Building, Room LM-401,
101 Independence Avenue, SE., Monday through Friday, between 8:30 a.m.
and 5 p.m., and the envelope must be addressed as follows: Copyright
Royalty Board, Library of Congress, James Madison Memorial Building,
101 Independence Avenue, SE., Washington, DC 20559-6000. If delivered
by a commercial courier (excluding overnight delivery services such as
Federal Express, United Parcel Service and similar overnight delivery
services), the comment or objection must be delivered to the
Congressional Courier Acceptance Site (CCAS) located at 2nd and D
Street, NE., Monday through Friday, between 8:30 a.m. and 4 p.m., and
the envelope must be addressed as follows: Copyright Royalty Board,
Library of Congress, James Madison Memorial Building, 101 Independence
Avenue, SE., Washington, DC 20559-6000. If a comment or objection is
sent by mail (including overnight delivery using United States Postal
Service Express Mail), the envelope must be addressed to: Copyright
Royalty Board, P.O. Box 70977, Southwest Station, Washington, DC 20024-
0977. Comments and objections may not be delivered by means of
overnight delivery services such as Federal Express, United Parcel
Service, etc., due to delays in processing receipt of such deliveries.

FOR FURTHER INFORMATION CONTACT: Gina Giuffreda, Attorney-Advisor.
Telephone (202) 707-7658. Telefax (202) 252-3423.

SUPPLEMENTARY INFORMATION:

Background

Section 118 of the Copyright Act, title 17 of the United States
Code, establishes a statutory license for the use of certain
copyrighted works in connection with noncommercial television and radio
broadcasting. The terms and rates for this statutory license have been
adjusted periodically by the Librarian of Congress and appear in 37 CFR
Part 253. However, the Copyright Royalty and Distribution Reform Act of
2004, Pub. L. No. 108-419, transferred jurisdiction over these rates
and terms to the Copyright Royalty Judges. 17 U.S.C. 801(b)(1). This is
a window year for the establishment of new rates and terms for the
2008-2012 license period.
On January 9, 2006, pursuant to 17 U.S.C. 803(b)(1)(A)(i)(V), the
Copyright Royalty Judges published a notice in the Federal Register
announcing commencement of proceedings under 17 U.S.C. 118 and
requesting interested parties to submit their petitions to participate.
71 FR 1453 (January 9, 2006). Petitions to participate were received
from: the American Council on Education (``ACE''); the National Music
Publishers Association, Inc. (``NMPA''); the Harry Fox Agency
(``HFA''); the National Religious Broadcasters Noncommercial Music
License Committee (``NRBNMLC''); Royalty Logic, Inc.; the American
Society of Composers, Authors and Publishers (``ASCAP''); Broadcast
Music, Inc. (``BMI''); SESAC, Inc.; National Public Radio (``NPR'');
the Corporation for Public Broadcasting (``CPB''); the Public
Broadcasting Service (``PBS''); and the Church Music Publishers
Association, Inc. The Judges set the timetable for the three-month
negotiation period, see 17 U.S.C. 803(b)(3), and directed the

[[Page 19139]]

participants to submit their written direct statements no later than
January 30, 2007. Instead of written direct statements, the parties
submitted notification of settlements and proposed rates and terms for
the Copyright Royalty Judges to adopt.
There are two ways that copyright owners and public broadcasting
entities \1\ may negotiate rates and terms under the section 118
statutory license. First, copyright owners may negotiate rates and
terms with specific public broadcasting entities for the use of all of
the copyright owners' works covered by the license. Section 118(b)(2)
provides that such license agreements ``shall be given effect in lieu
of any determination by the * * * Copyright Royalty Judges,'' provided
that copies of the agreements are submitted to the Copyright Royalty
Board ``within 30 days of execution.'' 17 U.S.C. 118(b)(2). The
Copyright Royalty Judges received notification of several agreements in
this category for which no further action is required.
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\1\ A ``public broadcasting entity'' is defined as a
``noncommercial educational broadcast station as defined in section
397 of title 47 and any nonprofit institution or organization
engaged in the activities described in paragraph (2) of subsection
(c)'' of section 118.
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Second, copyright owners and public broadcasting entities may
negotiate rates and terms for categories of copyrighted works and uses,
that would be binding on all owners and entities, and submit them to
the Copyright Royalty Judges for approval. Section 801(b)(7)(A)
provides that in such event:

(i) the Copyright Royalty Judges shall provide to those that
would be bound by the terms, rates, or other determination set by
any agreement in a proceeding to determine royalty rates an
opportunity to comment on the agreement and shall provide to
participants in the proceeding under section 803(b)(2) that would be
bound by the terms, rates, or other determination set by the
agreement to comment on the agreement and object to its adoption as
a basis for statutory terms and rates; and
(ii) the Copyright Royalty Judges may decline to adopt the
agreement as a basis for statutory terms and rates for participants
that are not parties to the agreement, if any participant described
in clause (i) objects to the agreement and the Copyright Royalty
Judges conclude, based on the record before them if one exists, that
the agreement does not provide a reasonable basis for setting
statutory terms or rates.

17 U.S.C. 801(b)(7)(A). The Copyright Royalty Judges received seven
proposals within this category: (1) A joint proposal of BMI and the
NRBNMLC; (2) a joint proposal of ASCAP and ACE; (3) a joint proposal of
SESAC and ACE; (4) a joint proposal of HFA, NMPA and the NRBNMLC; (5) a
joint proposal of SESAC and the NRBNMLC; (6) a joint proposal of ASCAP
and the NRBNMLC; and (7) a joint proposal of BMI and ACE. After
reviewing the proposals, the Copyright Royalty Judges determined that
they were insufficient on their face.\2\ By Order dated February 22,
2007, the Judges directed the parties to amend their proposals. On
March 15, 2007, ACE, ASCAP, BMI, HFA, NMPA, NPR, NRBNMLC, PBS and SESAC
submitted a joint proposal for section 118 rates and terms. It is this
proposal that the Judges are publishing today for comment.\3\
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\2\ The reason for the insufficiency was the parties' incorrect
assumption that the Copyright Royalty Judges would be amending part
253 of title 37 of the Code of Federal Regulations-the Copyright
Office's rules-rather than our own rules. As a result, the parties
only proposed amendments rather than a complete text of regulations.
\3\ Part 381, which we propose today, will be part of a new
Subchapter E which will contain the rates and terms for the various
statutory licenses. This new subchapter will be established upon the
publication of the final determination of the rates and terms for
the section 112 and 114 statutory licenses, Docket No. 2005-1 CRB
DTRA, and will contain Part 380.
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As part of this notice of proposed rulemaking (``NPRM''), the
Copyright Royalty Judges are modifying three aspects of the joint
proposal. First, the proposed regulations for terms governing the
recording of nondramatic performances and displays of musical works and
the terms for the use of published pictorial, graphic and sculptural
works require the deposit with the Copyright Office of cue sheets (for
musical works) and standard lists (for pictorial, graphic and
sculptural works) in hard copy format. We are changing these provisions
to require submission of cue sheets and standard lists in electronic
disk format only (due to space limitations) and requiring that they be
submitted to the offices of the Copyright Royalty Board rather than the
Copyright Office.
Second, the joint proposal requires public broadcasting entities to
make information concerning fees deposited in trust funds for unknown
copyright owners available upon request to the Copyright Office. We are
changing the provision to make the information available to the
Copyright Royalty Judges instead of the Copyright Office.
Third, the parties have included a provision in their proposal
governing the rates and terms applicable to certain public broadcasting
entities that states that such rates and terms are experimental,
without precedential effect, and may not be introduced or relied upon
in any governmental, administrative or judicial proceeding. The
Copyright Royalty Judges decline to include such a provision within our
regulations. Our task, as set forth in section 118 and chapter 8 of the
Copyright Act, is to adopt rates and terms for the noncommercial
broadcasting license. It is not our task to offer evaluations,
limitations or characterizations of the rates and terms, or make
statements about their use or value in proceedings other than this one.
As discussed above, the public may comment and object to any or all
of the proposed regulations contained in this NPRM. Those who do
comment and object, however, must be prepared to participate in further
proceedings in this docket to establish rates and terms for the section
118 license.

List of Subjects in 37 CFR Part 381

Proposed Regulations

For the reasons set forth in the preamble, the Copyright Royalty
Judges propose to add Part 381 to Chapter III of title 37 of the Code
of Federal Regulations to read as follows:

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

Sec.
381.1 General.
381.2 Definition of public broadcasting entity.
381.3 [Reserved]
381.4 Performance of musical compositions by PBS, NPR and other
public broadcasting entities engaged in the activities set forth in
17 U.S.C. 118(c).
381.5 Performance of musical compositions by public broadcasting
entities licensed to colleges and universities.
381.6 Performance of musical compositions by other public
broadcasting entities.
381.7 Recording rights, rates and terms.
381.8 Terms and rates of royalty payments for the use of published
pictorial, graphic and sculptural works.
381.9 Unknown copyright owners.
381.10 Cost of living adjustment.
381.11 Notice of restrictions on use of reproductions of
transmission programs.

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

Sec. 381.1 General.

This part establishes terms and rates of royalty payments for
certain activities using published nondramatic musical works and
published pictorial, graphic and sculptural works during a period
beginning on January 1, 2008, and ending on December 31, 2012. Upon
compliance with 17 U.S.C. 118, and the terms and rates of this part, a
public broadcasting entity may engage in the

[[Page 19140]]

activities with respect to such works set forth in 17 U.S.C. 118(c).

Sec. 381.2 Definition of public broadcasting entity.

As used in this part, the term public broadcasting entity means a
noncommercial educational broadcast station as defined in section 397
of title 47 and any nonprofit institution organization engaged in the
activities described in 17 U.S.C. 118(c).

Sec. 381.3 [Reserved]

Sec. 381.4 Performance of musical compositions by PBS, NPR and other
public broadcasting entities engaged in the activities set forth in 17
U.S.C. 118(c).

The following schedule of rates and terms shall apply to the
performance by PBS, NPR and other public broadcasting entities engaged
in activities set forth in 17 U.S.C. 118(c) of copyrighted published
nondramatic musical compositions, except for public broadcasting
entities covered by Sec. Sec. 381.5 and 381.6, and except for
compositions which are the subject of voluntary license agreements.
(a) Determination of royalty rate. (1) For performance of such work
in a feature presentation of PBS:

2008-2012................................................... $227.58

(2) For performance of such a work as background or theme music in
a PBS program:

2008-2012................................................... $57.66

(3) For performance of such a work in a feature presentation of a
station of PBS:

2008-2012................................................... $19.45

(4) For performance of such a work as background or theme music in
a program of a station of PBS:

2008-2012................................................... $4.10

(5) For the performance of such a work in a feature presentation of
NPR:

2008-2012................................................... $23.07

(6) For the performance of such a work as background or theme music
in an NPR program:

2008-2012................................................... $5.59

(7) For the performance of such a work in a feature presentation of
a station of NPR:

2008-2012................................................... $1.63

(8) For the performance of such a work as background or theme music
in a program of a station of NPR:

2008-2012................................................... $.58

(9) For purposes of this schedule the rate for the performance of
theme music in an entire series shall be double the single program
theme rate.
(10) In the event the work is first performed in a program of a
station of PBS or NPR, and such program is subsequently distributed by
PBS or NPR, an additional royalty payment shall be made equal to the
difference between the rate specified in this section for a program of
a station of PBS or NPR, respectively, and the rate specified in this
section for a PBS or NPR program, respectively.
(b) Payment of royalty rate. The required royalty rate shall be
paid to each known copyright owner not later than July 31 of each
calendar year for uses during the first six months of that calendar
year, and not later than January 31 for uses during the last six months
of the preceding calendar year.
(c) Records of use. PBS and NPR shall, upon the request of a
copyright owner of a published musical work who believes a musical
composition of such owner has been performed under the terms of this
schedule, permit such copyright owner a reasonable opportunity to
examine their standard cue sheets listing the nondramatic performances
of musical compositions on PBS and NPR programs. Any local PBS and NPR
station that shall be required by the provisions of any voluntary
license agreement with ASCAP, BMI or SESAC covering the license period
January 1, 2008, to December 31, 2012, to provide a music use report
shall, upon request of a copyright owner who believes a musical
composition of such owner has been performed under the terms of this
schedule, permit such copyright owner to examine the report.
(d) Terms of use. The fees provided in this schedule for the
performance of a musical work in a program shall cover performances of
such work in such program for a period of four years following the
first performance.

Sec. 381.5 Performance of musical compositions by public broadcasting
entities licensed to colleges and universities.

(a) Scope. This section applies to the performance of copyrighted
published nondramatic musical compositions by noncommercial radio
stations which are licensed to accredited colleges, accredited
universities, or other accredited nonprofit educational institutions
and which are not affiliated with National Public Radio. For purposes
of this section, accreditation of institutions providing post-secondary
education shall be determined by a regional or national accrediting
agency recognized by the Council for Higher Education Accreditation or
the United States Department of Education; and accreditation of
institutions providing elementary or secondary education shall be as
recognized by the applicable state licensing authority.
(b) Voluntary license agreements. Notwithstanding the schedule of
rates and terms established in this section, the rates and terms of any
license agreements entered into by copyright owners and colleges,
universities, and other nonprofit educational institutions concerning
the performance of copyrighted musical compositions, including
performances by noncommercial radio stations, shall apply in lieu of
the rates and terms of this section.
(c) Royalty rate. A public broadcasting entity within the scope of
this section may perform published nondramatic musical compositions
subject to the following schedule of royalty rates:
(1) For all such compositions in the repertory of ASCAP, $277
annually in 2007, as adjusted pursuant to Sec. 381.10.
(2) For all such compositions in the repertory of BMI, $277
annually in 2007, as adjusted pursuant to Sec. 381.10.
(3) For all such compositions in the repertory of SESAC, $116
annually in 2008, as adjusted pursuant to Sec. 381.10.
(4) For the performance of any other such compositions: $1.
(d) Payment of royalty rate. The public broadcasting entity shall
pay the required royalty rate to ASCAP, BMI and SESAC not later than
January 31 of each year.
(e) Records of use. A public broadcasting entity subject to this
section shall furnish to ASCAP, BMI and SESAC, upon request, a music-
use report during one week of each calendar year. ASCAP, BMI and SESAC
shall not in any one calendar year request more than 10 stations to
furnish such reports.

Sec. 381.6 Performance of musical compositions by other public
broadcasting entities.

(a) Scope. This section applies to the performance of copyrighted
published nondramatic musical compositions by radio stations not
licensed to colleges, universities, or other nonprofit educational
institutions and which are not affiliated with NPR. In the event that a
station owned by a public broadcasting entity broadcasts programming by
means of an in-band, on-channel (``IBOC'') digital radio signal and
such programming is different than the station's analog broadcast
programming, then any such programming shall be deemed to be provided
by a separate station requiring a separate royalty payment.
(b) Voluntary license agreements. Notwithstanding the schedule of
rates

[[Page 19141]]

and terms established in this section, the rates and terms of any
license agreements entered into by copyright owners and noncommercial
radio stations within the scope of this section concerning the
performance of copyrighted musical compositions, including performances
by noncommercial radio stations, shall apply in lieu of the rates and
terms of this section.
(c) Royalty rate. A public broadcasting entity within the scope of
this section may perform published nondramatic musical compositions
subject to the following schedule of royalty rates:
(1) For all such compositions in the repertory of ASCAP, the
royalty rates shall be as follows:

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Population count 2008 2009 2010 2011 2012
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Level 1...................... 0-249,999....... $550 $567 $583 $601 $619
Level 2...................... 250,000-499,999. 1,000 1,030 1,061 1,093 1,126
Level 3...................... 500,000-999,999. 1,500 1,545 1,591 1,639 1,688
Level 4...................... 1,000,000-1,499, 2,000 2,060 2,122 2,185 2,251
999.
Level 5...................... 1,500,000-1,999, 2,500 2,575 2,652 2,732 2,814
999.
Level 6...................... 2,000,000-2,499, 3,000 3,090 3,183 3,278 3,377
999.
Level 7...................... 2,500,000-2,999, 3,500 3,605 3,713 3,825 3,939
999.
Level 8...................... 3,000,000 and 5,000 5,150 5,305 5,464 5,628
above.
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(2) For all such compositions in the repertory of BMI, the royalty
rates shall be as follows:

(3) For all such compositions in the repertory of SESAC, the
royalty rates shall be as follows:

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Population count 2008 2009 2010 2011 2012
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Level 1...................... 0-249,999....... $120 $124 $127 $131 $135
Level 2...................... 250,000-499,999. 200 206 212 219 225
Level 3...................... 500,000-999,999. 300 309 318 328 338
Level 4...................... 1,000,000-1,499, 400 412 424 437 450
999.
Level 5...................... 1,500,000-1,999, 500 515 530 546 563
999.
Level 6...................... 2,000,000-2,499, 600 618 637 656 675
999.
Level 7...................... 2,500,000-2,999, 700 721 743 765 788
999.
Level 8...................... 3,000,000 and 1,000 1,030 1,061 1,093 1,126
above.
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(4) For the performance of any other such compositions, in 2008
through 2012, $1.
(d) Payment of royalty rate. The public broadcasting entity shall
pay the required royalty rate to ASCAP, BMI and SESAC not later than
January 31 of each year. Each annual payment shall be accompanied by a
signed declaration stating the Population Count of the public
broadcasting entity and the source for such Population Count. An exact
copy of such declaration shall be furnished to each of ASCAP, BMI and
SESAC. Upon prior written notice thereof from ASCAP, BMI or SESAC, a
public broadcasting entity shall make its books and records relating to
its Population Count available for inspection.
(e) Records of use. A public broadcasting entity subject to this
section shall furnish to ASCAP, BMI and SESAC, upon request, a music-
use report during one week of each calendar year. ASCAP, BMI and SESAC
each shall not in any one calendar year request more than 10 stations
to furnish such reports.
(f) Definitions. As used in paragraphs (c) and (d) of this section,
the following terms and their variant forms mean the following:
(1) Population Count. The combination of:
(i) The number of persons estimated to reside within a station's
Predicted 60 dBu Contour, based on the most recent available census
data; and
(ii) The nonduplicative number of persons estimated to reside in
the Predicted 60 dBu Contour of any Translator Station or Booster
Station that extends a public broadcasting entity's signal beyond the
contours of a station's Predicted 60 dBu Contour.
(iii) In determining Population Count, a station or a Translator
Station or a Booster Station may use and report the total population
data, from a research company generally recognized in the broadcasting
industry, for the radio market within which the station's community
license is located.
(2) Predicted 60 dBu Contour shall be calculated as set forth in 47
CFR 73.313.

[[Page 19142]]

(3) Translator Station and Booster Station shall have the same
meanings as set forth in 47 CFR 74.1201.

Sec. 381.7 Recording rights, rates and terms.

(a) Scope. This section establishes rates and terms for the
recording of nondramatic performances and displays of musical works,
other than compositions subject to voluntary license agreements, on and
for the radio and television programs of public broadcasting entities,
whether or not in synchronization or timed relationship with the visual
or aural content, and for the making, reproduction, and distribution of
copies and phonorecords of public broadcasting programs containing such
nondramatic performances and displays of musical works solely for the
purpose of transmission by public broadcasting entities. The rates and
terms established in this schedule include the making of the
reproductions described in 17 U.S.C. 118(c)(3).
(b) Royalty rate. (1)(i) For uses described in paragraph (a) of
this section of a musical work in a PBS-distributed program, the
royalty fees shall be calculated by multiplying the following per-
composition rates by the number of different compositions in that PBS-
distributed program:

2008-2012
(A) Feature................................................. $149.94
(B) Concert feature (per minute)............................ 44.59
(C) Background.............................................. 74.97
(D) Theme:
(1) Single program or first series program.............. 74.97
(2) Other series program................................ 30.39

(ii) For such uses other than in a PBS-distributed television
program, the royalty fee shall be calculated by multiplying the
following per-composition rates by the number of different compositions
in that program:

2008-2012
(A) Feature................................................. $9.43
(B) Concert feature (per minute)............................ 2.48
(C) Background.............................................. 4.10
(D) Theme:
(1) Single program or first series of program........... 4.10
(2) Other series program................................ 1.63

(iii) In the event the work is first recorded other than in a PBS-
distributed program, and such program is subsequently distributed by
PBS, an additional royalty payment shall be made equal to the
difference between the rate specified in this section for other than a
PBS-distributed program and the rate specified in this section for a
PBS-distributed program.
(2) For uses licensed herein of a musical work in a NPR program,
the royalty fees shall be calculated by multiplying the following per-
composition rates by the number of different compositions in any NPR
program distributed by NPR. For purposes of this schedule ``National
Public Radio'' programs include all programs produced in whole or in
part by NPR, or by any NPR station or organization under contract with
NPR.

2008-2012
(i) Feature................................................. $12.35
(ii) Concert feature (per minute)........................... 18.13
(iii) Background............................................ 6.19
(iv) Theme:
(A) Single program or first series program.............. 6.19
(B) Other series program................................ 2.47

(3) For purposes of this schedule, a ``Concert Feature'' shall be
deemed to be the nondramatic presentation in a program of all or part
of a symphony, concerto, or other serious work originally written for
concert performance, or the nondramatic presentation in a program of
portions of a serious work originally written for opera performance.
(4) For such uses other than in an NPR-produced radio program:

2008-2012
(i) Feature................................................. $.79
(ii) Feature (concert) (per half hour)...................... 1.65
(iii) Background............................................ .40

(5) The schedule of fees covers use for a period of three years
following the first use. Succeeding use periods will require the
following additional payment: additional one-year period--25 percent of
the initial three-year fee; second three-year period--50 percent of the
initial three-year fee; each three-year fee thereafter--25 percent of
the initial three-year fee; provided that a 100 percent additional
payment prior to the expiration of the first three-year period will
cover use during all subsequent use periods without limitation. Such
succeeding uses which are subsequent to December 31, 2012, shall be
subject to the royalty rates established in this schedule.
(c) Payment of royalty rates. The required royalty rates shall be
paid to each known copyright owner not later than July 31 of each
calendar year for uses during the first six months of that calendar
year, and not later than January 31 for uses during the last six months
of the preceding calendar year.
(d) Records of use. (1) Maintenance of cue sheets. PBS and its
stations, NPR, or other public broadcasting entities shall maintain and
make available for examination pursuant to paragraph (e) of this
section copies of their standard cue sheets or summaries of same
listing the recording of the musical works of such copyright owners.
(2) Content of cue sheets or summaries. Such cue sheets or
summaries shall include:
(i) The title, composer and author to the extent such information
is reasonably obtainable.
(ii) The type of use and manner of performance thereof in each
case.
(iii) For Concert Feature music, the actual recorded time period on
the program, plus all distribution and broadcast information available
to the public broadcasting entity.
(e) Filing of use reports with the Copyright Royalty Judges.
Deposit of cue sheets or summaries. PBS and its stations, NPR, or other
television public broadcasting entity shall deposit with the Copyright
Royalty Judges one electronic copy in Portable Document Format (PDF) on
compact disk (an optical data storage medium such as a CD-ROM, CD-R or
CD-RW) or floppy diskette of their standard music cue sheets or
summaries of same listing the recording pursuant to this schedule of
the musical works of copyright owners. Such cue sheets or summaries
shall be deposited not later than July 31 of each calendar year for
recordings during the first six months of the calendar year and not
later than January 31 of each calendar year for recordings during the
second six months of the preceding calendar year. PBS and NPR shall
maintain at their offices copies of all standard music cue sheets from
which such music use reports are prepared. Such music cue sheets shall
be furnished to the Copyright Royalty Judges upon their request and
also shall be available during regular business hours at the offices of
PBS or NPR for examination by a copyright owner who believes a musical
composition of such owner has been recorded pursuant to this schedule.

Sec. 381.8 Terms and rates of royalty payments for the use of
published pictorial, graphic, and sculptural works.

(a) Scope. This section establishes rates and terms for the use of
published pictorial, graphic, and sculptural works by public
broadcasting entities for the activities described in 17 U.S.C. 118.
The rates and terms established in this

[[Page 19143]]

schedule include the making of the reproductions described in 17 U.S.C.
118(c).
(b) Royalty rate. (1) The following schedule of rates shall apply
to the use of works within the scope of this section:
(i) For such uses in a PBS-distributed program:

2008-2012
(A) For featured display of a work.......................... $69.70
(B) For background and montage display...................... 33.99
(C) For use of a work for program identification or for 137.40
thematic use...............................................
(D) For the display of an art reproduction copyrighted 45.14
separately from the work of fine art from which the work
was reproduced irrespective of whether the reproduced work
of fine art is copyrighted so as to be subject also to
payment of a display fee under the terms of the schedule...

(ii) For such uses in other than PBS-distributed programs:

2008-2012
(A) For featured display of a work.......................... $45.14
(B) For background and montage display...................... 23.13
(C) For use of a work for program identification or for 92.27
thematic use...............................................
(D) For the display of an art reproduction copyrighted 23.14
separately from the work of fine art from which the work
was reproduced irrespective of whether the reproduced work
of fine art is copyrighted so as to be subject also to
payment of a display fee under the terms of this schedule..

(2) For the purposes of the schedule in paragraph (b)(1) of this
section the rate for the thematic use of a work in an entire series
shall be double the single program theme rate. In the event the work is
first used other than in a PBS-distributed program, and such program is
subsequently distributed by PBS, an additional royalty payment shall be
made equal to the difference between the rate specified in this section
for other than a PBS-distributed program and the rate specified in this
section for a PBS-distributed program.
(3) ``Featured display'' for purposes of this schedule means a
full-screen or substantially full-screen display appearing on the
screen for more than three seconds. Any display less than full-screen
or substantially full-screen, or full-screen for three seconds or less,
is deemed to be a ``background or montage display''.
(4) ``Thematic use'' is the utilization of the works of one or more
artists where the works constitute the central theme of the program or
convey a story line.
(5) ``Display of an art reproduction copyrighted separately from
the work of fine art from which the work was reproduced'' means a
transparency or other reproduction of an underlying work of fine art.
(c) Payment of royalty rate. PBS or other public broadcasting
entity shall pay the required royalty fees to each copyright owner not
later than July 31 of each calendar year for uses during the first six
months of that calendar year, and not later than January 31 for uses
during the last six months of the preceding calendar year.
(d) Records of use. (1) PBS and its stations or other public
broadcasting entity shall maintain and furnish either to copyright
owners, or to the offices of generally recognized organizations
representing the copyright owners of pictorial, graphic and sculptural
works, copies of their standard lists containing the pictorial,
graphic, and sculptural works displayed on their programs. Such notice
shall include the name of the copyright owner, if known, the specific
source from which the work was taken, a description of the work used,
the title of the program on which the work was used, and the date of
the original broadcast of the program.
(2) Such listings shall be furnished not later than July 31 of each
calendar year for displays during the first six months of the calendar
year, and not later than January 31 of each calendar year for displays
during the second six months of the preceding calendar year.
(e) Filing of use reports with the Copyright Royalty Judges. (1)
PBS and its stations or other public broadcasting entity shall deposit
with the Copyright Royalty Judges one electronic copy in Portable
Document Format (PDF) on compact disk (an optical data storage medium
such as a CD-ROM, CD-R or CD-RW) or floppy diskette of their standard
lists containing the pictorial, graphic, and sculptural works displayed
on their programs. Such notice shall include the name of the copyright
owner, if known, the specific source from which the work was taken, a
description of the work used, the title of the program on which the
work was used, and the date of the original broadcast of the program.
(2) Such listings shall be furnished not later than July 31 of each
calendar year for displays during the first six months of the calendar
year, and not later than January 31 of each calendar year for displays
during the second six months of the preceding calendar year.
(f) Terms of use. (1) The rates of this schedule are for unlimited
use for a period of three years from the date of the first use of the
work under this schedule. Succeeding use periods will require the
following additional payment: Additional one-year period--25 percent of
the initial three-year fee; second three-year period--50 percent of the
initial three-year fee; each three-year period thereafter--25 percent
of the initial three-year fee; provided that a 100 percent additional
payment prior to the expiration of the first three-year period will
cover use during all subsequent use periods without limitation. Such
succeeding uses which are subsequent to December 31, 2012, shall be
subject to the rates established in this schedule.
(2) Pursuant to the provisions of 17 U.S.C. 118(e), nothing in this
schedule shall be construed to permit, beyond the limits of fair use as
provided in 17 U.S.C. 107, the production of a transmission program
drawn to any substantial extent from a published compilation of
pictorial, graphic, or sculptural works.

Sec. 381.9 Unknown copyright owners.

If PBS and its stations, NPR and its stations, or other public
broadcasting entity is not aware of the identity of, or unable to
locate, a copyright owner who is entitled to receive a royalty payment
under this part, they shall retain the required fee in a segregated
trust account for a period of three years from the date of the required
payment. No claim to such royalty fees shall be valid after the
expiration of the three-year period. Public broadcasting entities may
establish a joint trust fund for the purposes of this section. Public
broadcasting entities shall make available to the Copyright Royalty
Judges, upon request, information concerning fees deposited in trust
funds.

Sec. 381.10 Cost of living adjustment.

(a) On December 1, 2007, the Copyright Royalty Judges shall publish
in the Federal Register a notice of the change in the cost of living as
determined by the Consumer Price Index (all consumers, all items)
during the period from the most recent Index published prior to
December 1, 2006, to

[[Page 19144]]

the most recent Index published prior to December 1, 2007. On each
December 1 thereafter the Copyright Royalty Judges shall publish a
notice of the change in the cost of living during the period from the
most recent index published prior to the previous notice, to the most
recent Index published prior to December 1, of that year.
(b) On the same date of the notices published pursuant to paragraph
(a) of this section, the Copyright Royalty Judges shall publish in the
Federal Register a revised schedule of rates for Sec. 381.5 which
shall adjust those royalty amounts established in dollar amounts
according to the change in the cost of living determined as provided in
paragraph (a) of this section. Such royalty rates shall be fixed at the
nearest dollar.
(c) The adjusted schedule for rates for Sec. 381.5 shall become
effective thirty days after publication in the Federal Register.

Sec. 381.11 Notice of restrictions on use of reproductions of
transmission programs.

Any public broadcasting entity which, pursuant to 17 U.S.C. 118,
supplies a reproduction of a transmission program to governmental
bodies or nonprofit institutions shall include with each copy of the
reproduction a warning notice stating in substance that the
reproductions may be used for a period of not more than seven days from
the specified date of transmission, that the reproductions must be
destroyed by the user before or at the end of such period, and that a
failure to fully comply with these terms shall subject the body or
institution to the remedies for infringement of copyright.

Dated: April 10, 2007.
James Scott Sledge,
Chief Copyright Royalty Judge.
[FR Doc. E7-7067 Filed 4-16-07; 8:45 am]

BILLING CODE 1410-72-P