The Copyright Royalty Board has ordered that most digital music services provide "census reporting" of all songs played by their service, along with other information including the number of listeners who heard each song each time it was played. The decision, published in the Federal Register today, is a follow up to the Notice of Proposed Rulemaking about which we wrote here, proposing this new permanent rule to replace the interim requirements that required that digital music services provide that information for two weeks each quarter. The only exception to the new obligation was for "small broadcasters" – i.e. those broadcasters who are only obligated to pay the minimum $500 annual royalty. These small broadcasters will continue to report on the songs that they play for only two weeks each quarter.
The new general rule requiring census reporting applies to all digital music services that pay royalties to SoundExchange for the public performance of sound recordings. However, the obligations set out in this general rule do not replace different rules that may be contained in settlement agreements entered into between services and SoundExchange. Settlements with recordkeeping exemptions include the broadcaster settlement (summarized here), which give stations the ability to exclude some of their tuning hours from the census reporting requirements that were included in that settlement, and the noncommercial settlement agreements summarized here. The CRB decision also excludes those services where per performance reporting is not possible (such as satellite radio services where there is no easy way to count performances).
For nonsubscription webcasters, the recordkeeping requirements require monthly Reports of Use which must contain information including:
- The name of the service
- The type of service (specific categories including broadcast music simulcast, broadcast simulcast of news program, music webcast)
- The featured artist
- The name of the song
- The ISRC Code of the song or, instead of the ISRC Code, the following information:
- Album Title
- Marketing Label
- The number of performances of each sound recording
The details of the obligations for webcasters and other digital services are set out in the rules published in today’s Federal Register. These are not easy rules to meet without using one of the commercial services that assist in counting performances. These services can also assist services in completing the digital reporting requirements set out in the rules. Digital services that use music should carefully review these rules to make sure that they are following the requirements set out in these rules. In recent meetings, SoundExchange has indicated that it is going to emphasize reporting requirements, and potentially take action against webcasters who ignore their obligations. Don’t become an example.