nonprofit internet radio royalties

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Noncommercial webcasters are often forgotten in the discussion of the current proceeding to set Internet radio sound recording royalties. But, along with the royalties for commercial webcasters (we wrote about the proposed commercial rates here), the current Copyright Royalty Board proceeding will also set the rates for noncommercial webcasters.  Various proposals for noncommercial royalties have been submitted to the Judges.  In fact, one proposed settlement agreement between SoundExchange and CBI (a group that represents college radio stations) has been submitted to the Judges, and last week that proposed settlement was published in the Federal Register, with a request for comments by November 26.  There are other proposals for noncommercial rates that were submitted by other parties, and we talk about those below. 

Setting rates for noncommercial webcasters is not easy.  Colleges and other schools, public radio and religious organizations usually are not motivated by the kinds of commercial considerations that give rise to evidence submitted under the “willing buyer willing seller” standard applicable to all CRB webcasting royalty decisions.  Thus, the noncommercial rates are often set as an afterthought.  In fact, perhaps because noncommercial rates have been such an afterthought, it has been these rates that have led to the greatest number of appellate issues for the CRB.  The decision on noncommercial rates from the 2006 proceeding was just issued by the Judges after an appellate court remand.  In that decision, the Board upheld the decision from the 2006 case setting the minimum fee for noncommercial broadcasters at $500 for the 2006-2010 proceeding – a decision reached after a remand of the case from the Court of Appeals to the Board following an appeal by IBS, another group of noncommercial broadcasters associated with colleges and other schools.  But let’s look at the proposals for the upcoming case, and compare them to the rates currently in effect.
Continue Reading Noncommercial Webcasters Royalty Rate Proposals for 2016-2020

Noncommercial webcasters were provided with two royalty options under settlements reached with SoundExchange pursuant to the Webcaster Settlement Act of 2009 ("WSA").  One settlement was with Noncommercial Educational Webcasters.  The other, when announced, was characterized by SoundExchange as being a settlement with noncommercial religious broadcasters, though it applies to any noncommercial webcaster who elects to be subject to its terms.  As set forth below, except for certain mid-sized noncommercial webcasters who have more forgiving recordkeeping options under the Educational deal, it would seem that the settlement with the religious broadcasters provides far more advantageous terms, and it also reaches back to cover the period from 2006 through 2010.  The Educational webcasters agreement covers only the rates for the periods from 2011-2015.  These settlements provide another example of the issue raised before the Senate Judiciary Committee of the arbitrary nature of the precedential nature that will be accorded to WSA settlements in future webcasting proceedings.  The noncommercial agreement with significantly higer prices has been accorded precedential weight in future CRB proceedings, while the one with lower rates is, by its terms, not precedential in future proceedings.

It is easiest to start with a review of the ‘Religious" broadcaters settlement (which, as we said above, is open to any noncommecial webcaster).  The agreement provides for a $500 per channel fee for each channel or stream offered by the noncommercial webcaster.  For that flat fee of $500 per channel, the webcaster can stream up to 159,140 monthly aggregate tuning hours of programming on each stream.  An Aggregate Tuning Hour ("ATH") is one hour of programming streamed to one person.  Thus, if you have 2 people who each listen for an hour, you would have two aggegate tuning hours.  A station with 2 listeners who each listen for half an hour would have one ATH of listening.  4 listeners for 15 minutes each would also add up to one ATH.  The 159,140 monthly ATH number represents listening of approximately 221 average simultaneous listeners 24 hours a day, 7 days a week.  If a webcaster exceeds this listening level, it must pay for excess listening on a per performance (per song per listener) basis, at the rates set out below.Continue Reading Details of Webcasting Royalty Settlements for Noncommercial Webcasters Including Educational and Religious Internet Radio Operators

SoundExchange has posted on its website this afternoon four press releases announcing new settlements of amounts due for Internet radio music royalties.  These settlements were negotiated under the provisions of the Webcaster Settlement Act of 2009.  The announcement lists settlements with two noncommercial groups representing College Broadcasters and noncommercial religious broadcasters, as well as a deal with Sirius XM for their streaming of music.  The fourth deal is with a group to be named later – a little mystery that sounds like something out of a trade of baseball players done right at the trading deadline.  In effect, that is the case here, as yesterday was the final date for deals to be done under the terms of the WSA.  These deals join the Pureplay Webcasters settlement announced earlier this month, as well as the deals with the Corporation for Public Broadcasting for NPR affiliates, the NAB for commercial broadcasters, and with microcasters done in February under the terms of the Webcasters Settlement Act of 2008 (links to our description of these deals can be found here).

The press releases do not release detailed terms. For Sirius, the release states that the parties agreed to a per performance rate which is not specified, covering webcasting royalties through 2015.  These rates do not apply to Sirius performances that are done by satellite, which are covered by the Copyright Royalty Board rates recently upheld by the US Court of Appeals.  Instead, these rates only cover the streaming of Sirius programming done over the Internet or to mobile devices using Internet technology.  The Collegiate Broadcasters agreed to a rate that provided the flat $500 fee for the first 159,140 aggregate tuning hours a month set by the CRB decision, and then per performance fees at the NAB rates for all streaming above that amount.  The religious broadcasters deal is less defined, discussing a per performance rate, but not providing any more details of the agreement.  For both noncommercial groups, there are references to reduced recordkeeping requirements for some webcasters, but again, those have not yet been detailed.Continue Reading SoundExchange Announces 4 More Settlements Under Webcaster Settlement Act – Sirius, College and Religious Noncommercial Broadcasters and a Group to be Named Later