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Federal Register / Vol. 86, No. 123 / Wednesday, June 30, 2021 / Proposed Rules Docket: For access to the docket to read background documents or comments received, go to eCRB at https app.crb.gov and perform a case search for docket 21CRB0002PBR
20232027.
FOR FURTHER INFORMATION CONTACT:
Anita Blaine, CRB Program Specialist, at 2027077658 or crb@loc.gov.
SUPPLEMENTARY INFORMATION:

jbell on DSKJLSW7X2PROD with PROPOSALS

Background Section 118 of the Copyright Act, title 17 of the United States Code, establishes a statutory license for the use of certain copyrighted works in connection with noncommercial television and radio broadcasting. Chapter 8 of the Copyright Act requires the Copyright Royalty Judges Judges to conduct proceedings every five years to determine the rates and terms for the section 118 license. 17 U.S.C. 801b1, 804b6. Accordingly, the Judges commenced a proceeding in January 2021, by publishing notice of the commencement of the proceeding and a request that interested parties submit petitions to participate. 86 FR 325 Jan.
5, 2021.
The Judges received petitions to participate in the current proceeding from The American Society of Authors, Composers and Publishers ASCAP;
Broadcast Music, Inc. BMI; Church Music Publishers Association, Inc.
CMPA; Educational Media Foundation EMF; Global Music Rights, LLC;
National Religious Broadcasters Noncommercial Music License Committee NRBNMLC; David Powell;
Public Broadcasting Entities Corporation for Public Broadcasting CPB, National Public Radio NPR, and Public Broadcasting Service PBS;
SESAC Performing Rights, LLC
SESAC; and The Harry Fox Agency LLC HFA.
The Judges gave notice to all participants of the three-month negotiation period required by 17 U.S.C.
803b3 and directed that, if the participants were unable to negotiate a settlement, they should submit Written Direct Statements no later than September 10, 2021. Notice of Participants, Commencement of Voluntary Negotiation Period, and Case Scheduling Order Feb. 9, 2021.

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defined in section 397 of title 47 and any nonprofit institution or organization engaged in the activities
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List of Subjects in 37 CFR Part 381
Copyright, Music, Radio, Television, Rates.
For the reasons set forth in the preamble, the Copyright Royalty Judges propose to amend 37 CFR part 381 as follows:
PART 381USE OF CERTAIN
COPYRIGHTED WORKS IN
CONNECTION WITH
NONCOMMERCIAL EDUCATIONAL
BROADCASTING
1. The authority citation for part 381
continues to read as follows:

Authority: 17 U.S.C. 118, 801b1, 803.

2. Revise 381.5c2i to read as follows:

381.5 Performance of musical compositions by public broadcasting entities licensed to colleges and universities.

c
2 For all such compositions in the repertory of BMI, the royalty rates shall be as follows:
i Music fees.

2023

<1,000
1,0004,999
5,0009,999
10,00019,999

1 A public broadcasting entity is defined as a noncommercial educational broadcast station as
petition to participate in the proceeding, but the National Association of College and University Business Officers NACUBO and the American Council on Education ACE support BMIs proposal. Proposal at 4.
The Proposal states that the fees in 381.5c2i should be modified. See Id. at 34. The modified fees reflect an annual cost-of-living increase based on CPI, reflecting how increases were calculated in the joint proposals submitted by BMI and ACE . . . and by BMI and NACUBO in prior proceedings. Id. at 4.
The Judges solicit comments on whether they should adopt the proposed regulations as statutory license fees to be paid by certain public broadcasting entities, namely, noncommercial educational radio stations licensed to colleges or universities that are not members of NPR, for their performances of copyrighted musical works in BMIs repertory, pursuant to 17 U.S.C. 118.
Comments and objections regarding the proposed changes must be submitted no later than July 30, 2021.

There are two ways copyright owners and public broadcasting entities 1 may negotiate rates and terms under the section 118 statutory license. First, copyright owners may negotiate rates and terms with specific public broadcasting entities for the use of all of the copyright owners works covered by the license. Section 118b2 provides that such license agreements shall be given effect in lieu of any determination by the . . . Copyright Royalty Judges, provided that copies of the agreement are submitted to the Judges within 30
days of execution. 17 U.S.C. 118b2.
Second, copyright owners and public broadcasting entities may negotiate rates and terms for categories of copyrighted works and uses that would be binding on all owners and entities using the same license and submit them to the Judges for approval. Section 801b7A of the Copyright Act authorizes the Judges to adopt rates and terms negotiated by some or all of the participants in a proceeding at any time during the proceeding provided they are submitted to the Judges for approval.
This section provides that the Judges shall provide notice and an opportunity to comment on the agreement to 1
those that would be bound by the terms, rates, or other determination set by the agreement and 2 participants in the proceeding that would be bound by the terms, rates, or other determination set by the agreement. See section 801b7A. The Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants not party to the agreement if any participant objects and the Judges conclude that the agreement does not provide a reasonable basis for setting statutory terms or rates. Id.
On May 17, 2021, the Judges received a proposal from participant BMI
regarding statutory license fees to be paid to BMI by noncommercial educational radio broadcast stations licensed to colleges or universities that are not affiliated with NPR for the performance of copyrighted musical works in BMIs repertory for the years 2023 through 2027. Proposal of Broadcast Music, Inc. of Rates and Terms for Colleges and Universities at 1
May 17, 2021 Proposal. No college radio station or related entity filed a
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$432
500
686
887

described in paragraph 2 of subsection c of section 118. 17 U.S.C. 118f.

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