webcasting royalty rates

A decision was expected in December on the royalties to be paid by broadcasters and other digital media companies who stream their non-interactive audio programming on the Internet.  As we wrote at the beginning of the pandemic, the Copyright Royalty Board, which hears the arguments about the royalties to be paid to SoundExchange in a trial-type administrative hearing, had to postpone the hearing that was initially slated to begin in March.  That hearing will now begin later this month.  Because of the delays in the hearing caused by the pandemic, Congress authorized the Copyright Office to extend various statutory deadlines.  This week, the Copyright Office announced that the December deadline for a decision on webcasting royalties has been pushed until April 15, 2021.

This does not mean that the royalties themselves will not go into effect on January 1.  The current CRB proceeding is to determine the rates that will be in effect for 2021 through 2025.  The proceeding began early in 2019 (see our posts here and here).  The January 1 effective date for the new royalties remains in place, so any decision released later in 2021 will be retroactive.  In January, webcasters and other internet radio operators will pay the royalties currently in place, and there will be some mechanism for a true up of the amounts due once the decision becomes effective.  That is not unusual in the music royalty world.  Just a few months ago, the Radio Music License Committee reached an agreement with BMI on royalties that was retroactive several years.  The Copyright Royalty Board decisions themselves, even if released to the parties in December, are often not final until the next year as the public version of any CRB decision usually takes time to release, and the parties have time after a decision is released to seek edits to the decision.  The Copyright Office itself also reviews the CRB decision for legal errors.  Even after that, the decision can be appealed to the Courts, so the ultimate resolution may be unknown for years – yet parties conduct their business while waiting to see if any adjustments to fees already paid may be due at some later time.
Continue Reading Copyright Office Extends Until April Date by Which Decision on SoundExchange Royalties for 2021-2025 Must be Released

SoundExchange last week filed an appeal of the Copyright Royalty Board’s decision on webcasting royalties (a decision which we summarized here and here), as reported by a number of trade press articles. Most of these press reports did not note that this was not the only appeal filed. At least two other parties, IBS (Intercollegiate Broadcasting System – representing college and high school broadcasters) and the NRB-NMLC (National Religious Broadcasters Noncommercial Music License Committee – representing noncommercial religious broadcasters) also filed notices of appeal. So what is next now that these appeals have been filed?

The Notices of Appeal that were just submitted to the US Court of Appeals are just “notice” documents – filed to give notice to the other parties, the CRB and the court that these parties will pursue an appeal as they think that the CRB decision was not justified. No detail as to the substance of the appeal need be submitted at this time. Those details will be advanced when the parties file briefs setting out the specifics of their arguments challenging the CRB decision. The exact date for the submission of those briefs won’t be set for months, when the case makes its way onto the Courts docketing schedule. So don’t expect briefs to be filed until the Fall, with an oral argument before the Court to follow. The arguments are simply ones where lawyers for the parties get up before a three-judge panel and make brief presentations about the legal issues involved in the case (and answer the questions of the Judges). No new evidence is taken – at this point the proceeding is just one between lawyers, arguing as to whether the CRB decision was justified. What does the Court review?
Continue Reading Appeals Filed of Copyright Royalty Board Decision on Webcasting Royalties – What’s Next?