College Broadcaster

Share and Learn!

Urgent Webcasting Update

See http://www.askcbi.org for an urgent message concerning the status of webcasting and a call for help!

Advertisements

September 27, 2008 Posted by | Display Requirements, News, Rates, Recordkeeping, Reports of Use, Webcasting | Leave a comment

Webcasting Issues & the Reaction

If you have been following the reaction to the webcasting rates released by the Copyright Royalty Board, you have likely seen a lot of electronic and some print ink on the topic. Until now, what this blog, dedicated to College Broadcasters (and it will include more than just webcasting issues in the near future) has done is to outline the legal issues and implications with a selected amount of bias and no calls for action. This post will differ a little in that it will point out some areas of hardship for stations and make some suggestions, but that will not be the focus. Instead, I will focus on some of the finer points of the decision, clear some facts and discuss what might happen.

Channel/Station – This seems to a big issue for some of the webcasters. This will affect some Educational Stations, but how many? If you are an Educational Station with multiple streams that include copyrighted music, chime in and give us a head count.

Lost already? Here is the background. To be truthful, I haven’t followed the commercial side of things, but the bulk of the discussion on this issue concerns entities that offer “custom” streams based on user preferences and content aggregators, such as AOL. On the educational side, I will refer only to the SWSA settlement as almost no station that paid royalties opted to not participate in the SWSA settlement. The SWSA settlement allowed stations at an institution with 10,000 or more students to stream up to three “channels” (i.e. stations with different content) for the $500 fee. Stations at smaller schools could pay $250 for a single channel or $500 for up to three channels. Each of these situations put a cap of 146,000 ATH, per month. In short, this means that if you did not average over 200 concurrent listeners throughout any month (in total for all streams), you did not exceed the cap and were not liable for additional royalties.

The CRB decision seems to require $500 per channel, regardless of enrollment or combined ATH. Obviously, content aggregators and those who offer custom streams are upset with this decision/lack of clarity. Educational Stations that are now or may in the future offer additional streams  might also take exception with this provision of the CRB decision.

Avoid the Fees – Don’t Play RIAA

If it were only that easy! While there are many who say they will avoid the fees and “tune out” the RIAA, all but a few are mistaken or misguided. The applicable laws cover ALL copyrighted music, with the exception of some  work under the creative commons or other such license. Thus, playing only independent music will not remove the burdens associated with the statutory license. The only way to avoid paying the fees, etc. is to use only music under the creative commons license (or similar agreement) and/or to license the music directly from the copyright owners (which usually includes a record label).

Unless you are prepared to determine your playlists (and all music on the station) by these criteria and do all of requisite negotiations and maintain the paperwork, this isn’t a viable option.

$500 Minimum/218

Because I am involved on the legal side of the issue, I can’t go into detail, but it appears that there maybe some room above the 218 cap, but it is rather nominal, given the CRB rates, it is not worthy of a real discussion. If the rates “stick” and there are stations on the verge of breaking the cap, we can delve into this further.

Where, what and how to protest.

  • Back Fees – The law allows and prescribes the issue of retroactive fees. Because the laws and regulations covering fees expired 12/31/2005, stations that have paid fees since then have paid “placeholder” fees. In other words, if the rates went up, the stations would owe the difference for 2006. Since the rate determination was not rendered until 2007 the back fee issue applies. Since rates went up for most stations, they owe retroactive fees and they need to pay them within 60 days of the regulations becoming official.

Herein lies the problems. Many stations will owe back fees if the ruling stands, yet the fees owed will become due during summer break for many stations, when students are unable to deal with the issue of a prompt demand for payment. Most stations operate on a ZERO budget. In other words, they are allocated funding for an academic year and there is no carryover or contingency budget. If the station is required to pay the back fees in this academic year, it may not have the funds to do so. For most stations, this obligation will triple their royalty fee due to the catch up mechanism.

If the fees aren’t paid during the summer break, the regulations promulgated by the CRB allow for a late fee of 1.5% per month.

It should also be noted that a station would likely not have allocated the funding for the additional fees in 2006-7 or asked for the back fees to be covered in 2007-8. Yet if a station is not able to pay within the 60 day window and forced to pay in the 2007-8 fiscal year, it will need to pay even more fees. If your station is affected, this is one area that should be on your list of issues. Either the retroactive portion of the final rate determination should be dropped or stations should be allowed extra time to pay without penalty.

Finally, the basic problem here is that the sound recording fees (section 114) are set using a different rate setting standard than the musical works fees (section 118).

Bottom Line: Any protest should request, at minimum a rollback to the rates currently paid and a request to change the rate setting standard so that the standard is consistent with that used in what is paid under section 118.

Recordkeeping

I think the boat has sailed on this issue, but it has yet to reach its destination.  The amount of data required and the format of submission issues have been settled by the CRB, but that does not mean there are not additional avenues to pursue.  As we know, many of the educational stations currently webcasting will cease once the regulations become final or will eventually fall out of compliance due to the natural churn of students.   These issues need to be addressed in discussions with Congress and in any negotiations that may occur.   The content portion of the reports of use needs to be addressed.  ATH, in particular, is a real problem for stations.   There is also a reality check that needs to be addressed.  A station with an ATH of under 20 is likely to generate milicent revenues for the copyright holders and more importantly the artists.  At this pace it would take years for the performers to receive the minimum distribution of $10 even when stations playlists/reports are aggregated.  Only the top performers are likely to ever receive a check.Frequency – The requirement to submit 4x per year is onerous, burdensome and likely to yield 0 results when certain stations are off the air.  Any reports should be limited in duration and occur only once a year, perhaps on a rotating basis.

One more note, the regulations permit stations to submit a report of use with headers, but is not required to do so and the headers do not alleviate the station from the need to submit the redundant information in each line of the report of use. A protest call to Congress might include a request to alleviate stations from the need to report redundant information on every line when that information is included in the header.

Bottom line, if you are going to protest, request that the recordkeeping and reports of use requirements be set no higher than those required under section 118, which is what most stations report to BMI. This is the most reasonable outcome possible for stations as they prepare to implement requirements which will eventually become an expected part of their service.

PERFORM ACT

The Perform Act contains many provisions that are extremely problematic for Educational Stations. One of the key issues would prevent the use of MP3 streaming because it lacks Digital Rights Management (DRM). The bill also hopes to level the playing field by changing the rate determination standard, limiting recording options and many other issues that would have a negative effect on stations. Perhaps the most detrimental effect would the creation of a fair market value for recordings which could require broadcast stations to start paying sound recording royalties. While some in the commercial webcaster field want this, they either don’t care or are unaware of the effect on Educational Stations if this were to happen. While I don’t oppose artists being compensated for their work, for reasons I won’t delineate in this overly long post, this is not appropriate for Educational Broadcast stations.

I will end this lengthy post with the following two items…

If you are going to protest, I would suggest that you protest

Minimum Fee –

Too high

Should include multiple stations/channels

Should not be retroactive

Recordkeeping/Reports of Use

Remove the ATH requirement

Only require Educational Stations to report 1 week per year, as per section 118

Perform Act

The perform act will remove a cost effective means of otherwise viable stations from webcasting and limit others in their means to access an audience with underexposed artists.

Don’t impose new royalties on Broadcast Educational Stations

This will further limit the market of the small non-commercial bastions of free expression and artists exposure.

Protests

There are a number of pages devoted to protesting the CRB decision. While not comprehensive, the http://www.savethestreams.org/ site lists a number of resources. If you do decide to protest, think about asking your representatives and your membership organizations to protest the issues important to you. I hope the above gives you something to think about and if you want more information on any topic, post it here.

Protest Central?

There are many different levels for protest. The first is for the participants to file a request for a rehearing. The discussions of whether or not that will happen are being held. The next level is for those participants to file an appeal. The participants will need to await the outcome of the request for rehearing before they can file an appeal. There is a possibility for a change to the rate determination to come from within the office of the Librarian of Congress.

I think the biggest problem webcasters, in general, face is the lack of a central place for them to concentrate their efforts. Perhaps there is a discussion forum already in existence or being formed, but the folks in charge of the protest cites need to work together in order to develop a cohesive message.

A list was formed and highly active after webcaster I. Due to the divisions within webcasters, I highly doubt a recurrence of that form of interactivity will occur again, particularly since many of the participants of that list we disenfranchised by the outcome, the SWSA.

Will R

March 13, 2007 Posted by | Display Requirements, Rates, Recordkeeping, Reports of Use, Webcasting | 2 Comments

Display Requirements

All webcasters, according to law, are required to abide by certain requirements and prohibitions in order to qualify for the statutory license to webcast. Those requirements include, among others, paying the royalty, submitting reports of use, not exceeding the Sound Recording Performance Compliment (covered in another section), and the display of certain information concerning each song. Failure to follow these requirements prohibits a station from the use of the statutory license. If a station is prohibited from using the statutory license, it must secure agreements from each and every rights holder to a sound recording before transmitting it on the Internet (or other means of digital transmission, other than via broadcast).

For the purposes of this entry, we will only discuss display requirements.

17 USC 114 (d)(2)(c)(ix) specifies that “the transmitting entity identifies in textual data the sound recording during, but not before, the time it is performed, including the title of the sound recording, the title of the phonorecord embodying such sound recording, if any, and the featured recording artist, in a manner to permit it to be displayed to the transmission recipient by the device or technology intended for receiving the service provided by the transmitting entity”.

In summary, you are required to display the artist, song title and album (if any), for each song.

March 11, 2007 Posted by | Display Requirements | 1 Comment