Copyright Royalty Board Questions and Review

Are a preexisting subscription service’s transmissions of multiple, unique channels of music that are accessible through that entity’s website and through a mobile application "subscription transmissions by preexisting subscription services" for which the Judges are required to determine rates and terms of royalty payments under Section 114(f)(1)(A) of the Copyright Act?

If yes, what conditions, if any, must the PSS meet with regard to streaming channels to qualify for a license under Section 114(f)(1)(A)? For example, must the streamed stations be identical to counterpart stations made available through cable television? Is there a limitation on the number of channels that the PSS may stream? Is there a limitation on the number or type of customers that may access the website or the mobile application?

Does Section 114 of the Act (or any other applicable provision of the Act) prohibit the Judges from setting rates and terms that distinguish among different types or categories of licensors, assuming a factual basis in the evidentiary record before the Judges demonstrates such a distinction in the marketplace?

Note: The Register of Copyrights concluded that the question posed by the CRJs was not in fact “presented” in this proceeding, and was therefore not properly referred to the Register for decision.

Note: this notice was titled “Scope of the Copyright Royalty Judges’ Continuing Jurisdiction” when first published.

Does section 114(f)(5)(C) of the [Copyright] Act bar the Judges from considering in its entirety a license agreement between a webcaster and a record company if that agreement includes any terms that are copied verbatim from a [2009] WSA settlement agreement?

Does section 114(f)(5)(C) of the [Copyright] Act bar the Judges from considering in its entirety a license agreement between a webcaster and a record company if that agreement includes any terms that are substantively identical to terms of a [2009] WSA settlement agreement?

Does section 114(f)(5)(C) of the [Copyright] Act bar the Judges from considering in its entirety a license agreement between a webcaster and a record company if that agreement includes terms that the [Copyright Royalty] Judges conclude have been influenced by terms of a [2009] WSA settlement agreement?

Does section 114(f)(5)(C) of the [Copyright] Act bar the Judges from considering in its entirety a license agreement between a webcaster and a record company if that agreement refers to a [2009] WSA settlement agreement in provisions unrelated to the rate structure, fees, terms, conditions, or notice and recordkeeping requirements set forth therein?

If the answer to any of the previous questions is ‘‘no,’’ does section 114(f)(5)(C) of the [Copyright] Act bar the Judges from considering specific provisions of a license agreement between a webcaster and a record company that are the same as, are copied from, influenced by or refer to provisions of a [2009] WSA settlement agreement?

Do the Judges have jurisdiction under title 17, or authority otherwise, to interpret the regulations adopted in the captioned proceeding?

If the Judges have authority to interpret regulations adopted in the course of a rate determination proceeding, is that authority time-limited?

Would the answer regarding the Judges’ jurisdiction or authority be different if the terms at issue regulated a current, as opposed to a lapsed, rate period?

Do the Judges have the statutory authority to adopt regulations imposing a duty of confidentiality upon copyright owners, whether or not that duty is included in a voluntarily negotiated license agreement between copyright owners and licensees in a proceeding under section 115 of the Act?

Whether the “detail requirements” proposed for 37 CFR 385.12(e) and 385.22(d) encroach upon the exclusive statutory domain of the Register under section 115 of the Copyright Act; and

Whether the “confidentiality requirement” proposed for 37 CFR 385.12(f) and 385.22(e) encroach upon the exclusive statutory domain of the Register under section 115 of the Copyright Act.

Does the Register of Copyrights have the authority under Chapter 7, or any other provisions of the Copyright Act, to determine the constitutionality of 17 U.S.C. 114(f)(5)?

Do the Copyright Royalty Judges have the authority under Chapter 8, or any other provisions of the Copyright Act, to determine the constitutionality of 17 U.S.C. 114(f)(5)?

Whether the Copyright Royalty Judges have authority under the Copyright Act to subpoena a nonparticipant to appear and give testimony or to produce and permit inspection of documents or tangible things?

Is the universe of preexisting subscription services—defined in 17 U.S.C. § 114(j)(11) as services which perform sound recordings by means of noninteractive audio—only subscription digital audio transmissions and which were in existence and making such transmissions to the public for a fee on or before July 31, 1998—[limited by] law to only Muzak (provided over the DiSH Network), Music Choice, and DMX?

Is the Judges’ authority to adopt terms under the section 115 license solely limited to late payment, notice of use and recordkeeping regulations? If the answer is no, what other categories or types of terms may the Judges’ prescribe by regulation?

Does a ringtone, made available for use on a cellular telephone or similar device, constitute delivery of a digital phonorecord that is subject to statutory licensing under 17 U.S.C. § 115, irrespective of whether the ringtone is monophonic (having only a single melodic line), polyphonic (having both melody and harmony), or a mastertone (a digital sound recording or excerpt thereof)?

If so, what are the legal conditions and/or limitations on such statutory licensing?