Federal Register: August 12, 2009 (Volume 74, Number 154)
DOCID: fr12au09-96 FR Doc E9-19299
LIBRARY OF CONGRESS
Copyright Office, Library of Congress
NOTICE: NOTICES
DOCID: fr12au09-96
DOCUMENT ACTION: Notice of agreements.
SUBJECT CATEGORY:
Notification of Agreements Under the Webcaster Settlement Act of 2009
DOCUMENT 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.
SUMMARY:
Agreements Under the Webcaster Settlement Act of 2009
SUPPLEMENTAL INFORMATION
On June 30, 2009, President Obama signed into law the Webcaster Settlement Act of 2009 (``WSA''), Public Law 11136, 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\ \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).
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 AAgreed Rates and Terms for Webcasts by Commercial Webcasters
Article 1Definitions
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 2Agreement 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. 20091 CRB Webcasting III, as noticed in the Federal Register at 74 FR 31819 (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 Nonwaiver. 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 3Scope
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 4Royalties
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 20092015 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:
Rate per
Year performance
2009.................................................... $0.0016
2010.................................................... 0.0017
2011.................................................... 0.0018
2012.................................................... 0.0020
2013.................................................... 0.0021
2014.................................................... 0.0022
2015.................................................... 0.0024
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 20112015.
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 perperformance 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 5Additional 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
20092015 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 20062015 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. 071123, 071168, 071172, 071173, 071174, 071177, 071178, 071179), any
proceedings on remand from such appeal, Digital Performance Right in
Sound Recordings and Ephemeral Recordings (Copyright Royalty Judges'
Docket No. 20091 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 6Miscellaneous
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. 501506,
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 BAgreed Rates and Terms for Noncommercial Educational Webcasters
Article 1Definitions
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 domesticallyaccredited primary or secondary school, college, university or other postsecondary degreegranting 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 2Agreement 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. 20091 CRB Webcasting III), Digital Performance Right in Sound Recordings and Ephemeral Recordings for a New Subscription Service (Copyright Royalty Judges' Docket No. 20092 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 NonWaiver. 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 3Scope
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 4Royalties
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 perperformance 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 perperformance 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 generallyapplicable 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 20112015.
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 5Reporting
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 SampleBasis 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 CensusBasis 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 stationbystation 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
thirdparty 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 6Additional 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.
501506, and all limitations, exceptions and defenses available with respect thereto.
[[Page 40620]]
Article 7Miscellaneous
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 CAgreement 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. 11136; 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 1Definitions
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 fourhundred 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 Internetonly 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 overtheair 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 2Agreement 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. 11136; 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
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) 7078380. Telefax: (202) 7078366. 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.