(a) Establishment. — The
Librarian of Congress, upon the recommendation of the Register of Copyrights,
is authorized to appoint and convene copyright arbitration royalty panels.
(b) Purposes. — Subject
to the provisions of this chapter, the purposes of the copyright arbitration
royalty panels shall be as follows:
(1) To make determinations concerning the adjustment
of reasonable copyright royalty rates as provided in sections 114, 115, 116, and
119, and to make determinations as to reasonable terms and rates of royalty payments
as provided in section 118. The rates applicable under sections 114(f)(1)(B),
115, and 116 shall be calculated to achieve the following objectives:
(A)
To maximize the availability of creative works to the public;
(B)
To afford the copyright owner a fair return for his creative work and the copyright
user a fair income under existing economic conditions;
(C)
To reflect the relative roles of the copyright owner and the copyright user in
the product made available to the public with respect to relative creative contribution,
technological contribution, capital investment, cost, risk, and contribution to
the opening of new markets for creative expression and media for their communication;
(D)
To minimize any disruptive impact on the structure of the industries involved
and on generally prevailing industry practices.
(2) To make determinations concerning the adjustment
of the copyright royalty rates in section 111 solely in accordance with the
following provisions:
(A) The rates established by section 111(d)(1)(B) may
be adjusted to reflect (i) national monetary inflation or deflation or (ii)
changes in the average rates charged cable subscribers for the basic service
of providing secondary transmissions to maintain the real constant dollar
level of the royalty fee per subscriber which existed as of the date of enactment
of this Act: Provided, That if the average rates charged cable system subscribers
for the basic service of providing secondary transmissions are changed so
that the average rates exceed national monetary inflation, no change in the
rates established by section 111(d)(1)(B) shall be permitted: And provided
further, That no increase in the royalty fee shall be permitted based
on any reduction in the average number of distant signal equivalents per subscriber.
The copyright arbitration royalty panels may consider all factors relating
to the maintenance of such level of payments including, as an extenuating
factor, whether the industry has been restrained by subscriber rate regulating
authorities from increasing the rates for the basic service of providing secondary
transmissions.
(B) In the event that the rules and regulations of the
Federal Communications Commission are amended at any time after April 15,
1976, to permit the carriage by cable systems of additional television broadcast
signals beyond the local service area of the primary transmitters of such
signals, the royalty rates established by section 111(d)(1)(B) may be adjusted
to insure that the rates for the additional distant signal equivalents resulting
from such carriage are reasonable in the light of the changes effected by
the amendment to such rules and regulations. In determining the reasonableness
of rates proposed following an amendment of Federal Communications Commission
rules and regulations, the copyright arbitration royalty panels shall consider,
among other factors, the economic impact on copyright owners and users: Provided,
That no adjustment in royalty rates shall be made under this subclause with
respect to any distant signal equivalent or fraction thereof represented by
(i) carriage of any signal permitted under the rules and regulations of the
Federal Communications Commission in effect on April 15, 1976, or the carriage
of a signal of the same type (that is, independent, network, or noncommercial
educational) substituted for such permitted signal, or (ii) a television broadcast
signal first carried after April 15, 1976, pursuant to an individual waiver
of the rules and regulations of the Federal Communications Commission, as
such rules and regulations were in effect on April 15,1976.
(C) In the event of any change in the rules and regulations
of the Federal Communications Commission with respect to syndicated and sports
program exclusivity after April 15, 1976, the rates established by Section
111(d)(1)(B) may be adjusted to assure that such rates are reasonable in light
of the changes to such rules and regulations, but any such adjustment shall
apply only to the affected television broadcast signals carried on those systems
affected by the change.
(D) The gross receipts limitations established by section
111(d)(1)(C) and (D) shall be adjusted to reflect national monetary inflation
or deflation or changes in the average rates charged cable system subscribers
for the basic service of providing secondary transmissions to maintain the
real constant dollar value of the exemption provided by such section; and
the royalty rate specified therein shall not be subject to adjustment.
(3) To distribute royalty fees deposited with the Register
of Copyrights under sections 111, 116, 119(b), and 1003, and to determine,
in cases where controversy exists, the distribution of such fees.
(c) Rulings. — The Librarian
of Congress, upon the recommendation of the Register of Copyrights, may, before
a copyright arbitration royalty panel is convened, make any necessary procedural
or evidentiary rulings that would apply to the proceedings conducted by such
panel, including —
(1) authorizing the distribution of those royalty fees
collected under sections 111, 119, and 1005 that the Librarian has found are
not subject to controversy; and
(2) accepting or rejecting royalty claims filed under
sections 111, 119, and 1007 on the basis of timeliness or the failure to establish
the basis for a claim.
(d) Support and Reimbursement
of Arbitration Panels. — The Librarian of Congress, upon the recommendation
of the Register of Copyrights, shall provide the copyright arbitration royalty
panels with the necessary administrative services related to proceedings under
this chapter, and shall reimburse the arbitrators presiding in distribution
proceedings at such intervals and in such manner as the Librarian shall provide
by regulation. Each such arbitrator is an independent contractor acting on
behalf of the United States, and shall be hired pursuant to a signed agreement
between the Library of Congress and the arbitrator. Payments to the arbitrators
shall be considered reasonable costs incurred by the Library of Congress and
the Copyright Office for purposes of section 802(h)(1).
(a) Composition of Copyright
Arbitration Royalty Panels. — A copyright arbitration royalty panel shall
consist of 3 arbitrators selected by the Librarian of Congress pursuant to
subsection (b).
(b) Selection of Arbitration
Panel. — Not later than 10 days after publication of a notice in the
Federal Register initiating an arbitration proceeding under section
803, and in accordance with procedures specified by the Register of Copyrights,
the Librarian of Congress shall, upon the recommendation of the Register of
Copyrights, select 2 arbitrators from lists provided by professional arbitration
associations. Qualifications of the arbitrators shall include experience in
conducting arbitration proceedings and facilitating the resolution and settlement
of disputes, and any qualifications which the Librarian of Congress, upon
the recommendation of the Register of Copyrights, shall adopt by regulation.
The 2 arbitrators so selected shall, within 10 days after their selection,
choose a third arbitrator from the same lists, who shall serve as the chairperson
of the arbitrators. If such 2 arbitrators fail to agree upon the selection
of a third arbitrator, the Librarian of Congress shall promptly select the
third arbitrator. The Librarian of Congress, upon the recommendation of the
Register of Copyrights, shall adopt regulations regarding standards of conduct
which shall govern arbitrators and the proceedings under this chapter.4
(c) Arbitration Proceedings. — Copyright
arbitration royalty panels shall conduct arbitration proceedings, subject
to subchapter II of chapter 5 of title 5, for the purpose of making their
determinations in carrying out the purposes set forth in section
801. The arbitration panels shall act on the basis of a fully documented
written record, prior decisions of the Copyright Royalty Tribunal, prior copyright
arbitration panel determinations, and rulings by the Librarian of Congress
under section 801(c). Any copyright owner who
claims to be entitled to royalties under section
111, 112, 114, 116, or 119,
any transmitting organization entitled to a statutory license under section
112(g), any person entitled to a statutory license under section
114(d), any person entitled to a compulsory license under section
115, or any interested copyright party who claims to be entitled to royalties
under section 1006, may submit relevant information
and proposals to the arbitration panels in proceedings applicable to such
copyright owner or interested copyright party, and any other person participating
in arbitration proceedings may submit such relevant information and proposals
to the arbitration panel conducting the proceedings. In ratemaking proceedings,
the parties to the proceedings shall bear the entire cost thereof in such
manner and proportion as the arbitration panels shall direct. In distribution
proceedings, the parties shall bear the cost in direct proportion to their
share of the distribution.
(d) Procedures. — Effective
on the date of the enactment of the Copyright Royalty Tribunal Reform Act
of 1993, the Librarian of Congress shall adopt the rules and regulations set
forth in chapter 3 of title 37 of the Code of Federal Regulations to govern
proceedings under this chapter. Such rules and regulations shall remain in
effect unless and until the Librarian, upon the recommendation of the Register
of Copyrights, adopts supplemental or superseding regulations under subchapter
II of chapter 5 of title 5.
(e) Report to the Librarian of
Congress. — Not later than 180 days after publication of the notice in
the Federal Register initiating an arbitration proceeding, the copyright arbitration
royalty panel conducting the proceeding shall report to the Librarian of Congress
its determination concerning the royalty fee or distribution of royalty fees,
as the case may be. Such report shall be accompanied by the written record,
and shall set forth the facts that the arbitration panel found relevant to
its determination.
(f)Action
by Librarian of Congress. — Within 90 days after receiving the report
of a copyright arbitration royalty panel under subsection (e), the Librarian
of Congress, upon the recommendation of the Register of Copyrights, shall
adopt or reject the determination of the arbitration panel. The Librarian
shall adopt the determination of the arbitration panel unless the Librarian
finds that the determination is arbitrary or contrary to the applicable provisions
of this title. If the Librarian rejects the determination of the arbitration
panel, the Librarian shall, before the end of an additional 30-day period,
and after full examination of the record created in the arbitration proceeding,
issue an order setting the royalty fee or distribution of fees, as the case
may be. The Librarian shall cause to be published in the Federal Register
the determination of the arbitration panel, and the decision of the Librarian
(including an order issued under the preceding sentence). The Librarian shall
also publicize such determination and decision in such other manner as the
Librarian considers appropriate. The Librarian shall also make the report
of the arbitration panel and the accompanying record available for public
inspection and copying.
(g) Judicial Review. — Any
decision of the Librarian of Congress under subsection (f) with respect to
a determination of an arbitration panel may be appealed, by any aggrieved
party who would be bound by the determination, to the United States Court
of Appeals for the District of Columbia Circuit, within 30 days after the
publication of the decision in the Federal Register. If no appeal is brought
within such 30-day period, the decision of the Librarian is final, and the
royalty fee or determination with respect to the distribution of fees, as
the case may be, shall take effect as set forth in the decision. When this
title provides that the royalty rates or terms that were previously in effect
are to expire on a specified date, any adjustment by the Librarian of those
rates or terms shall be effective as of the day following the date of expiration
of the rates or terms that were previously in effect, even if the Librarian's
decision is rendered on a later date. The pendency of an appeal under this
paragraph shall not relieve persons obligated to make royalty payments under
sections 111, 112, 114, 115, 116, 118, 119, or
1003 who would be affected by the determination
on appeal to deposit the statement of account and royalty fees specified in
those sections. The court shall have jurisdiction to modify or vacate a decision
of the Librarian only if it finds, on the basis of the record before the Librarian,
that the Librarian acted in an arbitrary manner. If the court modifies the
decision of the Librarian, the court shall have jurisdiction to enter its
own determination with respect to the amount or distribution of royalty fees
and costs, to order the repayment of any excess fees, and to order the payment
of any underpaid fees, and the interest pertaining respectively thereto, in
accordance with its final judgment. The court may further vacate the decision
of the arbitration panel and remand the case to the Librarian for arbitration
proceedings in accordance with subsection (c).
(h) Administrative Matters. —
(1) Deduction of costs of library
of congress and copyright office from royalty fees. — The Librarian of
Congress and the Register of Copyrights may, to the extent not otherwise provided
under this title, deduct from royalty fees deposited or collected under this
title the reasonable costs incurred by the Library of Congress and the Copyright
Office under this chapter. Such deduction may be made before the fees are
distributed to any copyright claimants. In addition, all funds made available
by an appropriations Act as offsetting collections and available for deductions
under this subsection shall remain available until expended. In ratemaking
proceedings, the reasonable costs of the Librarian of Congress and the Copyright
Office shall be borne by the parties to the proceedings as directed by the
arbitration panels under subsection (c).
(2) Positions required for administration
of compulsory licensing. — Section 307 of the Legislative Branch Appropriations
Act, 1994, shall not apply to employee positions in the Library of Congress
that are required to be filled in order to carry out section
111, 112, 114, 115, 116, 118, or 119
or chapter 10.
(a)(1) With respect to proceedings under section 801(b)(1)
concerning the adjustment of royalty rates as provided in sections 112, 114,
115, and 116, and with respect to proceedings under subparagraphs (A) and
(D) of section 801(b)(2), during the calendar years specified in the schedule
set forth in paragraphs (2), (3), (4), and (5), any owner or user of a copyrighted
work whose royalty rates are specified by this title, established by the Copyright
Royalty Tribunal before the date of the enactment of the Copyright Royalty
Tribunal Reform Act of 1993, or established by a copyright arbitration royalty
panel after such date of enactment, may file a petition with the Librarian
of Congress declaring that the petitioner requests an adjustment of the rate.
The Librarian of Congress shall, upon the recommendation of the Register of
Copyrights, make a determination as to whether the petitioner has such a significant
interest in the royalty rate in which an adjustment is requested. If the Librarian
determines that the petitioner has such a significant interest, the Librarian
shall cause notice of this determination, with the reasons therefor, to be
published in the Federal Register, together with the notice of commencement
of proceedings under this chapter.
(2) In proceedings under section 801(b)(2)(A) and (D),
a petition described in paragraph (1) may be filed during 1995 and in each
subsequent fifth calendar year.
(3) In proceedings under section 801(b)(1) concerning
the adjustment of royalty rates as provided in section 115, a petition described
in paragraph (1) may be filed in 1997 and in each subsequent tenth calendar
year or as prescribed in section 115(c)(3)(D).
(4)(A) In proceedings under section 801(b)(1) concerning
the adjustment of royalty rates as provided in section 116, a petition described
in paragraph (1) may be filed at any time within 1 year after negotiated licenses
authorized by section 116 are terminated or expire and are not replaced by
subsequent agreements.
(B) If a negotiated license authorized by section 116
is terminated or expires and is not replaced by another such license agreement
which provides permission to use a quantity of musical works not substantially
smaller than the quantity of such works performed on coin-operated phonorecord
players during the 1-year period ending March 1, 1989, the Librarian of Congress
shall, upon petition filed under paragraph (1) within 1 year after such termination
or expiration, convene a copyright arbitration royalty panel. The arbitration
panel shall promptly establish an interim royalty rate or rates for the public
performance by means of a coin-operated phonorecord player of non-dramatic
musical works embodied in phonorecords which had been subject to the terminated
or expired negotiated license agreement. Such rate or rates shall be the same
as the last such rate or rates and shall remain in force until the conclusion
of proceedings by the arbitration panel, in accordance with section 802, to
adjust the royalty rates applicable to such works, or until superseded by
a new negotiated license agreement, as provided in section 116(b).
(5) With respect to proceedings under section 801(b)(1)
concerning the determination of reasonable terms and rates of royalty payments
as provided in section 112 or 114, the Librarian of Congress shall proceed
when and as provided by those sections.
(b) With respect to proceedings under subparagraph (B)
or (C) of section 801(b)(2), following an event described in either of those
subsections, any owner or user of a copyrighted work whose royalty rates are
specified by section 111, or by a rate established by the Copyright Royalty
Tribunal or the Librarian of Congress, may, within twelve months, file a petition
with the Librarian declaring that the petitioner requests an adjustment of
the rate. In this event the Librarian shall proceed as in subsection (a) of
this section. Any change in royalty rates made by the Copyright Royalty Tribunal
or the Librarian of Congress pursuant to this subsection may be reconsidered
in 1980, 1985, and each fifth calendar year thereafter, in accordance with
the provisions in section 801(b)(2)(B) or (C), as the case may be.
(c) With respect to proceedings under section 801(b)(1),
concerning the determination of reasonable terms and rates of royalty payments
as provided in section 118, the Librarian of Congress shall proceed when and
as provided by that section.
(d) With respect to proceedings under
section 801(b)(3) or (4), concerning the distribution
of royalty fees in certain circumstances under section
111, 116, 119,
or 1007, the Librarian of Congress shall,
upon a determination that a controversy exists concerning such distribution,
cause to be published in the Federal Register notice of commencement of proceedings
under this chapter.
1The Copyright Royalty Tribunal
Reform Act of 1993 amended chapter 8 by substituting a new chapter title heading
and by repealing sections 803 and 805 through 810. Pub. L. No. 103-198, 107
Stat. 2304, 2308.
2In 1986, section 801(b) was amended
in paragraph (2)(A) by inserting “111(d)(1)(B)” in lieu of “111(d)(2)(B),”
wherever it appeared. Pub. L. No. 99-397, 100 Stat. 848. The Satellite Home
Viewer Act of 1988 amended section 801(b)(3) by substituting “, 116 and 119(b)”
in lieu of “and 116.” Pub. L. No. 100-667, 102 Stat. 3935, 3949, 3958. The
Copyright Royalty Tribunal Reform Act of 1993 amended section 801 by giving
it a new heading, by amending subsection (a) in its entirety, by making conforming
amendments throughout subsection (b), by amending the first sentence of subsection
(c) and by adding subsection (d). Pub. L. No. 103-198, 107 Stat. 2304. In
1997, section 801 was amended by inserting “119” in the first sentence of
subsection (b)(1), by adding paragraphs (1) and (2) of subsection (c) and
by amending subsection (d) in its entirety. Pub. L. No. 105-80, 111 Stat.
1529, 1533. In 1998, the Digital Millennium Copyright Act amended the first
sentence of section 801(b) by inserting “114(f)(1)(B)” in lieu of “114.” Pub.
L. No. 105-304, 112 Stat. 2860, 2902.
3The Copyright Royalty Tribunal
Reform Act of 1993 amended section 802 in its
entirety. Pub. L. No. 103-198, 107 Stat. 2304, 2305. In 1997, section 802(h)(1)
was amended in its entirety. Pub. L. No. 105-80, 111 Stat. 1529. The Technology,
Education, and Copyright Harmonization Act of 2002 amended section 802(c)
by substituting section “112(g)” for “112(f).” Pub. L.
No. 107-273, 116 Stat. 1758, 1912.
In 1998, the Digital Millennium Copyright Act amended section
802 as follows: 1) in subsection (c), by inserting in the third sentence “any
transmitting organization entitled to a statutory license under section 112(f)”
after “section 111, 112, 114, 116, and 119”; 2) in subsection (f), by inserting “90” in lieu of “60” in the first sentence and “an additional 30-day period”
in lieu of “that additional 60 day period” in the third sentence; 3) in subsection
(g), by adding the third sentence, which begins “When this title provides
that the royalty rates” and by inserting “112” after “111”; and 4) by inserting “112” after “111” in subsection (h)(2). Pub. L. No. 105-304, 112 Stat. 2860,
2902.
4See title 37, Chapter II, of the
Code of Federal Regulations.
5The Copyright Royalty Tribunal
Reform Act of 1993 redesignated section 804 as section
803 and amended the newly designated section 803 in its entirety. Pub.
L. No. 103-198, 107 Stat. 2304, 2307. In 1995, the Digital Performance Right
in Sound Recordings Act amended section 803(a) by adding paragraph (5) and
by making conforming amendments throughout chapter
8. Pub. L. No. 104-39, 109 Stat. 336, 349. In 1998, the Digital Millennium
Copyright Act amended section 803(a) by inserting “112” before “114” in paragraphs
(1) and (5) and by substituting “those sections” in lieu of “that section”
in paragraph (5). Pub. L. No. 105-304, 112 Stat. 2860, 2902.
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