A new Chief Copyright Royalty Judge of the Copyright Royalty Board has just been named by the Librarian of Congress. According to the Press Release announcing his appointment, David Shaw will fill that position after having previously served as an administrative law judge on the International Trade Commission for over 10 years. There, he heard complex cases dealing with detailed financial matters – experience that sounds relevant to the kinds of cases he will be deciding on the CRB. The Copyright Royalty Judges decide cases determining the marketplace value of music when setting royalty rates, and that look at the relative value of programming when deciding the distribution of cable royalties to program copyright holders. In addition to ITC experience, Shaw was a judge at the Social Security Administration and, according to his biography, worked in the General Counsel’s office at NPR early in his career. With the appointment of this new Chief Judge, we thought that it would be worth looking at some of the specific areas in which the CRB makes decisions that affect media companies.
The CRB is principally charged with rates and distributions for copyrights governed by a “statutory licenses.” A statutory license is created by Congress when it is believed that individual negotiations between copyright holders and copyright users would either be unduly complex so as to be almost unworkable or where an efficient market would not otherwise exist. Essentially, the statutory license means that the copyright owner must license the work that they own – they cannot restrict its use – if the user pays the royalties set by law or established by the CRB and abides by the conditions for use set out in the law. See our article here about music statutory licenses and our articles here and here on some of the issues with the TV statutory licenses. The conditions of use are often carefully restricted so as to only cover very specific uses under the statutory license (see our article here on the conditions placed on the use of music under the statutory license for webcasting – the public performance right for sound recordings used by noninteractive services discussed below).