On October 8, 2003, the United States Copyright Office announced that it is seeking input from the public as it formulates various retroactive reporting and record keeping requirements. The reporting and record keeping requirements being drafted by the Copyright Office may affect any radio broadcaster that streamed its broadcast signal over the Internet during the period from October 28, 1998 to the present. Even if a radio station streamed its content for only a brief period, it may still be subject to the proposed rules. The details of this proceeding are provided below.
In 2002, as required under the Copyright Act, the Copyright Office established compulsory licensing royalty rates for broadcasters that stream their content on the Internet. The rate for commercial broadcasters, which was applied retroactively to October 28, 1998, is .07 cents ($0.0007) per performance (a "performance" being transmission of one musical work to one computer) plus 8.8 percent of the total royalty for storage of the music on a computer file server, or at least a $500 minimum royalty per year. If the total number of actual musical performances is unavailable, there are formulas in the federal regulations for computation of the "estimated" number of musical performances broadcast.
In keeping with its retroactive approach, the Copyright Act requires retroactive reporting requirements. The Copyright Office recognizes that many radio stations did not make or retain detailed records concerning their streamed content over the Web. However, the Copyright Office’s motivation is to ensure that the royalty fees it has collected from 1998 to the present are distributed correctly to copyright holders.
The Copyright Office is asking for comments on how it should address the problem of incomplete or non-existent record keeping during this period. Should it require radio stations to report actual performance data for the historical period, if it is available? If so, what information should be reported in order to determine who are the relevant copyright owners and performers?
In situations where the information is not available - and the FCC required no such record keeping during that period — the Copyright Office is asking whether any proxy for actual performance data exists, and if so, how such a proxy could be implemented. Finally, the Copyright Office is seeking "concrete proposals and proposed regulatory language to implement rules for the reporting of prior records of use."
The Copyright Office has been charged with the unenviable task of recreating a five-year record. Comments filed with the Copyright Office were due November 24, 2003. Reply comments were due December 22, 2003.
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