In January, the Copyright Royalty Board asked for comments as to whether it should require "census reporting" of all sound recordings that are used by a digital service subject to the statutory royalty.  This would replace the current requirement that services need only report on the sound recordings used for two weeks every calender quarter.  Most of the comments that were filed dealt with the difficulties of certain classes of webcasters – particularly small webcasters and certain broadcasters – in keeping full census reports of every song that is played by a service, and how many people heard each song.  In a Notice of Inquiry published in the Federal Register today, the CRB asked for further information about the cost and difficulties of such reporting.  Comments on the Notice are due on May 26, 2009, and replies on June 8.

The real issues, as identified by the CRB, were raised by smaller entities that argued that they do not have the ability to track performances.  Especially problematic are stations that have on-air announcers who pick the music that they want to play in real time, and don’t run their programming through any sort of automation system or music scheduling software.  Live DJs playing music that they want is a hallmark of college radio, but one that creates problems for tracking performances.  How can a DJ’s on-the-fly selection of music be converted to the nice, neat computer spreadsheets required by SoundExchange for the Reports of Use of music played?

Specific questions to which the CRB want a response include:

  • How many small entities would be harmed by full census reporting
  • What the cost impact on these entities would be
  • Is there any means by which they could obtain the ability to track all songs played and the number of listeners to each song, and how much would it cost?
  • How does SoundExchange currently deal with reporting based on ATH rather than the number of performances?
  • How does SoundExchange deal with reports based on playlist information without corresponding listenership data?
  • If there were to be exemptions for smaller entities, what basis should be used for the exemptions?  Revenue?  Just those that are only subject to the minimum royalty fees?  Noncommercial only, or small commercial entities too?
  • How many broadcasters who are streaming do not have automated playlists?  How much would it cost to convert to systems using automated playlists?  Is the lack of automated playlists a creative choice or a financial necessity?

Under the recent settlements with the NAB (see our post here) and with certain small webcasters (see our post here), census reporting is already required for most programming.  The settlement with CPB requires that CPB come up with a record-keeping system.  Thus, the only webcasters now not providing these reports are those that did not settle and are governed by the CRB-imposed royalty rates.  This includes some of the largest pure webcasters, and many small, noncommercial entities not affiliated with NPR and CPB.  Particularly for these small entities, this proceeding may be very important.  So look to file your comments, with details on the costs and alternatives, by May 26.