Last week, we noted that the Copyright Royalty Board had a notice on its website saying that, because of the government shutdown, it could not publish its notice soliciting petitions to participate in WEB V, the case to set webcasting royalties paid to SoundExchange by noninteractive webcasters (including broadcasters who simulcast their programming on the
A year ago, when the Copyright Royalty Board adopted the rates for webcasters (including broadcasters who simulcast their programming by online streaming) to pay for the sound recording performance royalty (see our summary here and here), one difference from previous decisions is that there was a single per-song, per-listener royalty adopted. In the past…
The text of the Copyright Royalty Board decision on Internet Radio Royalties for 2026-2020 was released last Friday. While it is 203 pages long, the basis for the decision is relatively simple. As required by the Copyright Act, the Copyright Royalty Judges looked at all of the evidence presented to determine what rate a willing buyer and a willing seller would agree to in a marketplace transaction. In looking at that evidence, they decided that the best evidence for that rate was two deals actually done in the marketplace – one deal between Pandora and the independent record label organization Merlin and another between iHeartRadio and Warner Music. As these were deals for the very rates to be decided by the Judges – the rates for the public performance of sound recordings by noninteractive streaming companies – the Judges determined that these two deals best evidenced the value put on streaming royalties by actual players in the marketplace. Looking at the per song per listener rates specified in those deals, and making a few adjustments based on other consideration included in the deals (particularly in the iHeart deal), the Judges arrived at a per song per listener rate for each deal, and determined that they set the bounds of the reasonable rates for nonsubscription webcasting. Taking into account that approximately 2/3 of the music played by webcasters is from major labels like Warner as opposed to that from the independent labels such as those that were part of the Merlin group, the Judges gave the rates from the iHeart deal greater weight in determining where within the zone of reasonableness the rates should fall. Thus, the Board determined that the rate for nonsubscription, noninteractive services should be $.0017 per performance (i.e. per song per listener). This is the rate that they published back in December (about which we wrote here).
While the basis for the decision seems relatively simple, the process to get to that decision was not – and it took 203 pages for the Judges to discuss all of the issues that they weighed in coming to their conclusions. While some of those pages were dedicated to discussions of the rates for noncommercial webcasters and the terms of the payments to be made by webcasters (topics we will try to cover in a later post), the bulk of the decision was a discussion of how the Judges weighed the arguments of the parties in the case in reaching their conclusion. While no summary can cover all of the issues that went into this consideration, some of the issues covered in this decision are discussed below.…
Continue Reading Looking at the Decision of the Copyright Royalty Board on Internet Radio Royalties for Commercial Webcasters – What are the Issues that the Judges Considered?
It seems like every streaming company, and every financial analyst and reporter covering the media beat has been breathlessly awaiting the release of the Copyright Royalty Board’s decision on Internet Radio Royalties that will apply to noninteractive streaming companies during the years 2016-2020. Many have been predicting a decision for days. But, in a public notice released today and available on the CRB website, the CRB announced that the that the decision will be released on Wednesday. While the CRB will make the rates available on their website on Wednesday, the full decision will only go, initially, to the Librarian of Congress which oversees the administrative aspect of the CRB and reviews its decisions for legal errors, and to counsel involved in the case. Counsel will have an opportunity to review the decision to suggest that portions of the decision containing confidential business information be redacted from the public version of the decision, a version that will be released at some point in the future. So the streaming world will know by Wednesday what they will be paying in the upcoming 5-year period, barring any post-decision changes through appeals, direct licenses, or other processes.
To clarify, this decision only apples to noninteractive streaming companies – webcasters or Internet radio – where the listener cannot select the next song to be played. It does not apply to digital music companies where parties can play individual tracks on demand, or where they can save music into playlists where the songs can be replayed in the same order repeatedly. Those paying these “statutory royalties” must adhere to certain restrictions as to how often a particular song will be played, but get the rights to play any song legally released in the United States. See our article here as to why Adele could refuse to make her songs available to services like Spotify, while Pandora and other Internet radio companies could play those songs. And these royalties apply only to streams that are directed to US residents, which is why many webcasters, including Pandora, are not available in much of the world. See our article here on determining where royalties are paid for digital content. Even though limited to these particular digital music services, the decision remains very important. What happens when the decision is released, and what is next?…
Continue Reading Waiting for the Copyright Royalty Board Decision on Internet Radio Royalty Rates – Decision To Be Announced on Wednesday
The proposals for the royalty rates to be paid by webcasters to SoundExchange for the public performance of sound recordings for 2016-2020 are now on file with the Copyright Royalty Board, and they represent two differing perspectives on the state of the industry and how much Internet radio companies can and should pay to record companies and recording artists. As we wrote many months ago, the CRB initiated its proceeding to set these royalties back in January, and earlier this month, participating parties, including internet music services and SoundExchange, were required to file their “direct case exhibits” – written witness statements setting out the arguments to justify the proposals of each side, and their proposed royalty rates. These direct cases (with certain confidential information redacted) are now available on the CRB website. So what are the parties proposing?
SoundExchange provided expert testimony and exhibits from record company executives to contend that there are many new entrants into the streaming industry and that the industry is healthy and growing. Looking at deals that have been done in the marketplace, including deals for “interactive streaming” (deals negotiated directly between services and copyright holders, and not subject to CRB oversight and review – see our article here), SoundExchange suggests that the royalties should increase from their current rate of $.0023 per performance (e.g. per song per listener). Their rate proposal is to go from $.0025 in 2016 to $.0029 in 2020. But, in a new wrinkle, they propose that the CRB should adopt a new “greater of” formulation, suggesting that all commercial Internet radio services should pay the greater of the suggested per performance royalty or 55% of revenue related to their streaming. This greater of formulation is partially justified by SoundExchange based on their witnesses claim that such “greater of’ formulations are common in interactive streaming agreements.…
Continue Reading Webcasting Rate Proposals for 2016-2020 Now Public – What Will The Copyright Royalty Board Be Considering in Setting Royalty Rates for Internet Radio?
Last week, the Copyright Royalty Board published in the Federal Register its decision on Internet radio royalties for 2011-2015. The question that I received many times since the publication last week is “huh, didn’t we already see that decision a long time ago?” Indeed we did – the original decision setting the rates was reached in December 2010 (which we wrote about here and here). But, as many will remember, there was also an intervening decision finding that the CRB had been unconstitutionally established. The Court remedied the unconstitutionality by changing the law’s provisions dealing with the ability of the Librarian of Congress to remove the Judges, and sent the decision back to the CRB to redo the 2010 decision. The redo is the result that was released last week. While the new decision did not change the rates for webcasters, it did contain some new analysis that presents some interesting insights into the Judge’s thought processes that may be relevant to webcasters who will be affected by the recently started proceeding to determine rates for 2016-2020. As the three Judges on the CRB have all arrived on the CRB since the 2010 decision, this rewritten decision provides some insight as to how they are approaching the new proceeding.
By the time the decision declaring the unconstitutionality of the “old” CRB was reached, the only party left fighting the decision was Intercollegiate Broadcasting Systems, a group of college broadcasters. All of the commercial broadcasters had either settled their royalty disputes, or dropped out of the proceeding (see our summary of the rates entered into by parties as part of the Webcasters Settlement Acts). Thus, no commercial webcasters participated in the remanded proceeding before the CRB. The CRB noted the lack of any challenge to the commercial rates, and given that they were not challenged, and that they fell in a zone of reasonableness, they were adopted. But, in determining that the rates were in the zone of reasonableness, the CRB did not just pay lip service to reviewing the prior decision, but it instead did a full review of that decision. And, some of the discussion that they offered may arise again in the new proceeding.…
Continue Reading Copyright Royalty Board Reissues Decision on Internet Radio Royalties for 2011-2015 – Same Rates But New Analysis
The Copyright Royalty Board today published in the Federal Register its notice announcing the commencement of the next proceeding to set webcasting royalty rates for 2016-2020. The Notices (here for webcasting and here for “new subscription services” – subscription webcasting and other similar pay digital music services, other than satellite and cable radio whose royalties were set in another proceeding about which we wrote here) were notable as they were not simply an announcement that the proceedings were beginning and a recitation of the procedure for filing a petition to participate (essentially a written filing setting out a party’s interest in the outcome of the proceeding and the payment of a $150 filing fee). Instead, the order sets out a series of questions for consideration by potential participants, asking that they consider some fundamental issues about the nature of the royalty to be adopted in this proceeding. Petitions to participate must be filed by interested parties with the CRB by February 3.
The questions asked by the Judges really revolve around two issues that have been raised many times in prior proceedings. These questions are noteworthy only because the Judges are asking the parties to consider whether the CRB should address issues that have been litigated in prior proceedings – issues that some might have considered to be settled by these prior cases. First, the Judges ask if the CRB would be justified in adopting a percentage of revenue royalty, rather than the per song, per listener royalty metric that has been used in the three prior proceedings. Asking that question raises several other sub-issues that are set out in the orders including:
- Whether it is too difficult to determine what the revenues of a webcaster are, an issue that can be troublesome if the webcaster has multiple lines of business where determining which revenues are attributable to webcasting and which are attributable to other services might be complicated (though collection agencies like ASCAP and BMI are able to administer their royalty schemes, usually using a percentage of revenue rate).
- Whether a percentage of revenue royalty is unfair to the artists because it does not pay each artists an equivalent amount for each song that is played, thought the Judges ask parties to address whether all music is worth the same amount (see our article here about the difficulty in assessing the value of music and the controversies that it raises).
- Whether a percentage of revenue royalty encourages the webcaster to use too much music, as services not paying on a per song per listener basis might not need to be efficient in monetizing their music use unless, as suggested by the Board, there are substantial minimum fees adopted to encourage the webcaster to make money off of its use of the music.
In addition, the Board asks if there should be different rates for different types of webcasters – are some more efficient than others? Can royalties be maximized by “price discrimination” – charging less to certain webcasters to get whatever can be received from them, while charging a higher royalty rate to other services that can afford to pay more? In effect, there has been price discrimination in the webcasting market, but such discrimination has come about after there have been decisions perceived as adverse to webcasters, when webcasters and SoundExchange have come together, often as the result of political pressure, to negotiate alternative rates pursuant to a Webcaster Settlement Act (or the Small Webcaster Settlement Act in the initial proceeding). See our summary of the differing royalty rates currently paid by webcasters pursuant to these negotiated deals, here. …
Continue Reading Copyright Royalty Board Calls for Petitions to Participate in Proceeding to Set Webcasting Royalties for 2016-2020 – Posing Many Questions for Potential Participants
Each year, we remind webcasters about their obligations under various settlement agreements entered into with SoundExchange and under CRB decisions to make minimum payments and, in some cases, to file a Notice of Election to be covered under certain negotiated rates – all due by January 31. All webcasters have minimum fee obligations due by January 31. Many, though not all, Webcasters who have elected the the royalty rates set by many of the settlement agreements entered into pursuant to the Webcasters Settlement Act must also file an election notice with SoundExchange by January 31 to continue to be covered by those settlement agreements. These agreements were entered into by groups of webcasters and SoundExchange, and allow the webcasters to pay royalties at rates lower than those rates set by the Copyright Royalty Board for 2011.
While SoundExchange has, in the past, sent out reminders of these obligations to services that had paid in the prior year, sometimes these notices get lost, so Internet Radio operators need to remember to make these filings. The original election forms filed under settlement agreements signed by the NAB and by Sirius XM cover the entire settlement period from 2006-2015, so no election form must be filed each year, though minimum fee payments must still be made. Note that certain small broadcasters, who under the Broadcaster agreement need not comply with SoundExchange recordkeeping obligations, do need to file an election to certify that they still meet the standards necessary to count as a small broadcaster. The WSA settlement agreements that cover Pureplay webcasters, Small Commercial webcasters, and certain Noncommercial Educational webcasters are all are entered into on a year-by-year basis (though, as noted below, there is a default in certain noncommercial webcasting agreements that, if you were covered in prior years, you will be continued to be covered in the current year, unless you opt out). Thus, to continue to be covered, parties currently governed by these agreements need to file a Notice of Election to again be covered by these agreements by January 31.
Dave Oxenford this week conducted a seminar on legal issues facing broadcasters in their digital media efforts. The seminar was organized by the Michigan Association of Broadcasters, and originated before a group of broadcasters in Lansing, but was webcast live to broadcasters in ten other states. Dave addressed a variety of legal issues for broadcasters in connection with their website operations and other digital media platforms. These issues included a discussion of service marks and copyrights, employment matters, music on websites, the use of social media, privacy, and sponsorship disclosure. The slides used in the Lansing presentation are available here. During the seminar, Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the content posted to their website by their audience, should take advantage of the registration with the Copyright Office that may provide safe harbor protection if a station follows the rules and takes down offending content when identified by a copyright holder. The Copyright Office instructions for registration can be found here.
One of the most common issues that arise with radio station websites is the streaming of their programming. In August, Dave gave a presentation to the Texas Association of Broadcasters providing a step-by-step guide to streaming issues, with a summary of the royalty rates paid by different types of streaming companies. That summary to Internet Radio issues is available here. Additional information about use of music on the Internet can be found in Davis Wright Tremaine’s Guide to The Basics of Music Licensing in a Digital Age. Dave also presented this seminar at the Connecticut Broadcasters Association’s Annual Convention in Hartford on October 14.
Broadcasters have a host of other legal issues that they should consider in connection with their digital presence. At last week’s Maine Association of Broadcasters Annual Convention in Bangor, Dave Oxenford addressed these issues, including service marks and copyrights, employment matters, music on websites, the use of social media, privacy and sponsorship disclosure. A copy of Dave’s presentation on the Legal Issues…