17 U.S.C. § 803 : US Code - Section 803: Proceedings of Copyright Royalty Judges

Search 17 U.S.C. § 803 : US Code - Section 803: Proceedings of Copyright Royalty Judges

(a) Proceedings. -
(1) In general. - The Copyright Royalty Judges shall act in
accordance with regulations issued by the Copyright Royalty
Judges and the Librarian of Congress, and on the basis of a
written record, prior determinations and interpretations of the
Copyright Royalty Tribunal, Librarian of Congress, the Register
of Copyrights, and the Copyright Royalty Judges (to the extent
those determinations are not inconsistent with a decision of the
Register of Copyrights that was timely delivered to the Copyright
Royalty Judges pursuant to section 802(f)(1)(A) or (B), or with a
decision of the Register of Copyrights pursuant to section
802(f)(1)(D)), under this chapter, and decisions of the court of
appeals under this chapter before, on, or after the effective
date of the Copyright Royalty and Distribution Reform Act of
2004.
(2) Judges acting as panel and individually. - The Copyright
Royalty Judges shall preside over hearings in proceedings under
this chapter en banc. The Chief Copyright Royalty Judge may
designate a Copyright Royalty Judge to preside individually over
such collateral and administrative proceedings, and over such
proceedings under paragraphs (1) through (5) of subsection (b),
as the Chief Judge considers appropriate.
(3) Determinations. - Final determinations of the Copyright
Royalty Judges in proceedings under this chapter shall be made by
majority vote. A Copyright Royalty Judge dissenting from the
majority on any determination under this chapter may issue his or
her dissenting opinion, which shall be included with the
determination.
(b) Procedures. -
(1) Initiation. -
(A) Call for petitions to participate. - (i) The Copyright
Royalty Judges shall cause to be published in the Federal
Register notice of commencement of proceedings under this
chapter, calling for the filing of petitions to participate in
a proceeding under this chapter for the purpose of making the
relevant determination under section 111, 112, 114, 115, 116,
118, 119, 1004, or 1007, as the case may be -
(I) promptly upon a determination made under section
804(a);
(II) by no later than January 5 of a year specified in
paragraph (2) of section 804(b) for the commencement of
proceedings;
(III) by no later than January 5 of a year specified in
subparagraph (A) or (B) of paragraph (3) of section 804(b)
for the commencement of proceedings, or as otherwise provided
in subparagraph (A) or (C) of such paragraph for the
commencement of proceedings;
(IV) as provided under section 804(b)(8); or
(V) by no later than January 5 of a year specified in any
other provision of section 804(b) for the filing of petitions
for the commencement of proceedings, if a petition has not
been filed by that date, except that in the case of
proceedings under section 111 that are scheduled to commence
in 2005, such notice may not be published.
(ii) Petitions to participate shall be filed by no later than
30 days after publication of notice of commencement of a
proceeding under clause (i), except that the Copyright Royalty
Judges may, for substantial good cause shown and if there is no
prejudice to the participants that have already filed
petitions, accept late petitions to participate at any time up
to the date that is 90 days before the date on which
participants in the proceeding are to file their written direct
statements. Notwithstanding the preceding sentence, petitioners
whose petitions are filed more than 30 days after publication
of notice of commencement of a proceeding are not eligible to
object to a settlement reached during the voluntary negotiation
period under paragraph (3), and any objection filed by such a
petitioner shall not be taken into account by the Copyright
Royalty Judges.
(B) Petitions to participate. - Each petition to participate
in a proceeding shall describe the petitioner's interest in the
subject matter of the proceeding. Parties with similar
interests may file a single petition to participate.
(2) Participation in general. - Subject to paragraph (4), a
person may participate in a proceeding under this chapter,
including through the submission of briefs or other information,
only if -
(A) that person has filed a petition to participate in
accordance with paragraph (1) (either individually or as a
group under paragraph (1)(B)), together with a filing fee of
$150;
(B) the Copyright Royalty Judges have not determined that the
petition to participate is facially invalid; and
(C) the Copyright Royalty Judges have not determined, sua
sponte or on the motion of another participant in the
proceeding, that the person lacks a significant interest in the
proceeding.
(3) Voluntary negotiation period. -
(A) In general. - Promptly after the date for filing of
petitions to participate in a proceeding, the Copyright Royalty
Judges shall make available to all participants in the
proceeding a list of such participants and shall initiate a
voluntary negotiation period among the participants.
(B) Length of proceedings. - The voluntary negotiation period
initiated under subparagraph (A) shall be 3 months.
(C) Determination of subsequent proceedings. - At the close
of the voluntary negotiation proceedings, the Copyright Royalty
Judges shall, if further proceedings under this chapter are
necessary, determine whether and to what extent paragraphs (4)
and (5) will apply to the parties.
(4) Small claims procedure in distribution proceedings. -
(A) In general. - If, in a proceeding under this chapter to
determine the distribution of royalties, the contested amount
of a claim is $10,000 or less, the Copyright Royalty Judges
shall decide the controversy on the basis of the filing of the
written direct statement by the participant, the response by
any opposing participant, and 1 additional response by each
such party. The participant asserting the claim shall not be
required to pay the filing fee under paragraph (2).
(B) Bad faith inflation of claim. - If the Copyright Royalty
Judges determine that a participant asserts in bad faith an
amount in controversy in excess of $10,000 for the purpose of
avoiding a determination under the procedure set forth in
subparagraph (A), the Copyright Royalty Judges shall impose a
fine on that participant in an amount not to exceed the
difference between the actual amount distributed and the amount
asserted by the participant.
(5) Paper proceedings. - The Copyright Royalty Judges in
proceedings under this chapter may decide, sua sponte or upon
motion of a participant, to determine issues on the basis of the
filing of the written direct statement by the participant, the
response by any opposing participant, and one additional response
by each such participant. Prior to making such decision to
proceed on such a paper record only, the Copyright Royalty Judges
shall offer to all parties to the proceeding the opportunity to
comment on the decision. The procedure under this paragraph -
(A) shall be applied in cases in which there is no genuine
issue of material fact, there is no need for evidentiary
hearings, and all participants in the proceeding agree in
writing to the procedure; and
(B) may be applied under such other circumstances as the
Copyright Royalty Judges consider appropriate.
(6) Regulations. -
(A) In general. - The Copyright Royalty Judges may issue
regulations to carry out their functions under this title. All
regulations issued by the Copyright Royalty Judges are subject
to the approval of the Librarian of Congress. Not later than
120 days after Copyright Royalty Judges or interim Copyright
Royalty Judges, as the case may be, are first appointed after
the enactment of the Copyright Royalty and Distribution Reform
Act of 2004, such judges shall issue regulations to govern
proceedings under this chapter.
(B) Interim regulations. - Until regulations are adopted
under subparagraph (A), the Copyright Royalty Judges shall
apply the regulations in effect under this chapter on the day
before the effective date of the Copyright Royalty and
Distribution Reform Act of 2004, to the extent such regulations
are not inconsistent with this chapter, except that functions
carried out under such regulations by the Librarian of
Congress, the Register of Copyrights, or copyright arbitration
royalty panels that, as of such date of enactment, are to be
carried out by the Copyright Royalty Judges under this chapter,
shall be carried out by the Copyright Royalty Judges under such
regulations.
(C) Requirements. - Regulations issued under subparagraph (A)
shall include the following:
(i) The written direct statements of all participants in a
proceeding under paragraph (2) shall be filed by a date
specified by the Copyright Royalty Judges, which may be not
earlier than 4 months, and not later than 5 months, after the
end of the voluntary negotiation period under paragraph (3).
Notwithstanding the preceding sentence, the Copyright Royalty
Judges may allow a participant in a proceeding to file an
amended written direct statement based on new information
received during the discovery process, within 15 days after
the end of the discovery period specified in clause (iii).
(ii)(I) Following the submission to the Copyright Royalty
Judges of written direct statements by the participants in a
proceeding under paragraph (2), the judges shall meet with
the participants for the purpose of setting a schedule for
conducting and completing discovery. Such schedule shall be
determined by the Copyright Royalty Judges.
(II) In this chapter, the term "written direct statements"
means witness statements, testimony, and exhibits to be
presented in the proceedings, and such other information that
is necessary to establish terms and rates, or the
distribution of royalty payments, as the case may be, as set
forth in regulations issued by the Copyright Royalty Judges.
(iii) Hearsay may be admitted in proceedings under this
chapter to the extent deemed appropriate by the Copyright
Royalty Judges.
(iv) Discovery in such proceedings shall be permitted for a
period of 60 days, except for discovery ordered by the
Copyright Royalty Judges in connection with the resolution of
motions, orders, and disputes pending at the end of such
period.
(v) Any participant under paragraph (2) in a proceeding
under this chapter to determine royalty rates may request of
an opposing participant nonprivileged documents directly
related to the written direct statement or written rebuttal
statement of that participant. Any objection to such a
request shall be resolved by a motion or request to compel
production made to the Copyright Royalty Judges in accordance
with regulations adopted by the Copyright Royalty Judges.
Each motion or request to compel discovery shall be
determined by the Copyright Royalty Judges, or by a Copyright
Royalty Judge when permitted under subsection (a)(2). Upon
such motion, the Copyright Royalty Judges may order discovery
pursuant to regulations established under this paragraph.
(vi)(I) Any participant under paragraph (2) in a proceeding
under this chapter to determine royalty rates may, by means
of written motion or on the record, request of an opposing
participant or witness other relevant information and
materials if, absent the discovery sought, the Copyright
Royalty Judges' resolution of the proceeding would be
substantially impaired. In determining whether discovery will
be granted under this clause, the Copyright Royalty Judges
may consider -
(aa) whether the burden or expense of producing the
requested information or materials outweighs the likely
benefit, taking into account the needs and resources of the
participants, the importance of the issues at stake, and
the probative value of the requested information or
materials in resolving such issues;
(bb) whether the requested information or materials would
be unreasonably cumulative or duplicative, or are
obtainable from another source that is more convenient,
less burdensome, or less expensive; and
(cc) whether the participant seeking discovery has had
ample opportunity by discovery in the proceeding or by
other means to obtain the information sought.
(II) This clause shall not apply to any proceeding
scheduled to commence after December 31, 2010.
(vii) In a proceeding under this chapter to determine
royalty rates, the participants entitled to receive royalties
shall collectively be permitted to take no more than 10
depositions and secure responses to no more than 25
interrogatories, and the participants obligated to pay
royalties shall collectively be permitted to take no more
than 10 depositions and secure responses to no more than 25
interrogatories. The Copyright Royalty Judges shall resolve
any disputes among similarly aligned participants to allocate
the number of depositions or interrogatories permitted under
this clause.
(viii) The rules and practices in effect on the day before
the effective date of the Copyright Royalty and Distribution
Reform Act of 2004, relating to discovery in proceedings
under this chapter to determine the distribution of royalty
fees, shall continue to apply to such proceedings on and
after such effective date.
(ix) In proceedings to determine royalty rates, the
Copyright Royalty Judges may issue a subpoena commanding a
participant or witness to appear and give testimony, or to
produce and permit inspection of documents or tangible
things, if the Copyright Royalty Judges' resolution of the
proceeding would be substantially impaired by the absence of
such testimony or production of documents or tangible things.
Such subpoena shall specify with reasonable particularity the
materials to be produced or the scope and nature of the
required testimony. Nothing in this clause shall preclude the
Copyright Royalty Judges from requesting the production by a
nonparticipant of information or materials relevant to the
resolution by the Copyright Royalty Judges of a material
issue of fact.
(x) The Copyright Royalty Judges shall order a settlement
conference among the participants in the proceeding to
facilitate the presentation of offers of settlement among the
participants. The settlement conference shall be held during
a 21-day period following the end of the discovery period and
shall take place outside the presence of the Copyright
Royalty Judges.
(xi) No evidence, including exhibits, may be submitted in
the written direct statement or written rebuttal statement of
a participant without a sponsoring witness, except where the
Copyright Royalty Judges have taken official notice, or in
the case of incorporation by reference of past records, or
for good cause shown.
(c) Determination of Copyright Royalty Judges. -
(1) Timing. - The Copyright Royalty Judges shall issue their
determination in a proceeding not later than 11 months after the
conclusion of the 21-day settlement conference period under
subsection (b)(6)(C)(x), but, in the case of a proceeding to
determine successors to rates or terms that expire on a specified
date, in no event later than 15 days before the expiration of the
then current statutory rates and terms.
(2) Rehearings. -
(A) In general. - The Copyright Royalty Judges may, in
exceptional cases, upon motion of a participant in a proceeding
under subsection (b)(2), order a rehearing, after the
determination in the proceeding is issued under paragraph (1),
on such matters as the Copyright Royalty Judges determine to be
appropriate.
(B) Timing for filing motion. - Any motion for a rehearing
under subparagraph (A) may only be filed within 15 days after
the date on which the Copyright Royalty Judges deliver to the
participants in the proceeding their initial determination
concerning rates and terms.
(C) Participation by opposing party not required. - In any
case in which a rehearing is ordered, any opposing party shall
not be required to participate in the rehearing, except that
nonparticipation may give rise to the limitations with respect
to judicial review provided for in subsection (d)(1).
(D) No negative inference. - No negative inference shall be
drawn from lack of participation in a rehearing.
(E) Continuity of rates and terms. - (i) If the decision of
the Copyright Royalty Judges on any motion for a rehearing is
not rendered before the expiration of the statutory rates and
terms that were previously in effect, in the case of a
proceeding to determine successors to rates and terms that
expire on a specified date, then -
(I) the initial determination of the Copyright Royalty
Judges that is the subject of the rehearing motion shall be
effective as of the day following the date on which the rates
and terms that were previously in effect expire; and
(II) in the case of a proceeding under section 114(f)(1)(C)
or 114(f)(2)(C), royalty rates and terms shall, for purposes
of section 114(f)(4)(B), be deemed to have been set at those
rates and terms contained in the initial determination of the
Copyright Royalty Judges that is the subject of the rehearing
motion, as of the date of that determination.
(ii) The pendency of a motion for a rehearing under this
paragraph shall not relieve persons obligated to make royalty
payments who would be affected by the determination on that
motion from providing the statements of account and any reports
of use, to the extent required, and paying the royalties
required under the relevant determination or regulations.
(iii) Notwithstanding clause (ii), whenever royalties
described in clause (ii) are paid to a person other than the
Copyright Office, the entity designated by the Copyright
Royalty Judges to which such royalties are paid by the
copyright user (and any successor thereto) shall, within 60
days after the motion for rehearing is resolved or, if the
motion is granted, within 60 days after the rehearing is
concluded, return any excess amounts previously paid to the
extent necessary to comply with the final determination of
royalty rates by the Copyright Royalty Judges. Any underpayment
of royalties resulting from a rehearing shall be paid within
the same period.
(3) Contents of determination. - A determination of the
Copyright Royalty Judges shall be supported by the written record
and shall set forth the findings of fact relied on by the
Copyright Royalty Judges. Among other terms adopted in a
determination, the Copyright Royalty Judges may specify notice
and recordkeeping requirements of users of the copyrights at
issue that apply in lieu of those that would otherwise apply
under regulations.
(4) Continuing jurisdiction. - The Copyright Royalty Judges
may, with the approval of the Register of Copyrights, issue an
amendment to a written determination to correct any technical or
clerical errors in the determination or to modify the terms, but
not the rates, of royalty payments in response to unforeseen
circumstances that would frustrate the proper implementation of
such determination. Such amendment shall be set forth in a
written addendum to the determination that shall be distributed
to the participants of the proceeding and shall be published in
the Federal Register.
(5) Protective order. - The Copyright Royalty Judges may issue
such orders as may be appropriate to protect confidential
information, including orders excluding confidential information
from the record of the determination that is published or made
available to the public, except that any terms or rates of
royalty payments or distributions may not be excluded.
(6) Publication of determination. - By no later than the end of
the 60-day period provided in section 802(f)(1)(D), the Librarian
of Congress shall cause the determination, and any corrections
thereto, to be published in the Federal Register. The Librarian
of Congress shall also publicize the determination and
corrections in such other manner as the Librarian considers
appropriate, including, but not limited to, publication on the
Internet. The Librarian of Congress shall also make the
determination, corrections, and the accompanying record available
for public inspection and copying.
(7) Late payment. - A determination of Copyright Royalty Judges
may include terms with respect to late payment, but in no way
shall such terms prevent the copyright holder from asserting
other rights or remedies provided under this title.
(d) Judicial Review. -
(1) Appeal. - Any determination of the Copyright Royalty Judges
under subsection (c) may, within 30 days after the publication of
the determination in the Federal Register, be appealed, to the
United States Court of Appeals for the District of Columbia
Circuit, by any aggrieved participant in the proceeding under
subsection (b)(2) who fully participated in the proceeding and
who would be bound by the determination. Any participant that did
not participate in a rehearing may not raise any issue that was
the subject of that rehearing at any stage of judicial review of
the hearing determination. If no appeal is brought within that 30-
day period, the determination of the Copyright Royalty Judges
shall be 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 paragraph (2).
(2) Effect of rates. -
(A) Expiration on specified date. - When this title provides
that the royalty rates and terms that were previously in effect
are to expire on a specified date, any adjustment or
determination by the Copyright Royalty Judges of successor
rates and terms for an ensuing statutory license period shall
be effective as of the day following the date of expiration of
the rates and terms that were previously in effect, even if the
determination of the Copyright Royalty Judges is rendered on a
later date. A licensee shall be obligated to continue making
payments under the rates and terms previously in effect until
such time as rates and terms for the successor period are
established. Whenever royalties pursuant to this section are
paid to a person other than the Copyright Office, the entity
designated by the Copyright Royalty Judges to which such
royalties are paid by the copyright user (and any successor
thereto) shall, within 60 days after the final determination of
the Copyright Royalty Judges establishing rates and terms for a
successor period or the exhaustion of all rehearings or appeals
of such determination, if any, return any excess amounts
previously paid to the extent necessary to comply with the
final determination of royalty rates. Any underpayment of
royalties by a copyright user shall be paid to the entity
designated by the Copyright Royalty Judges within the same
period.
(B) Other cases. - In cases where rates and terms have not,
prior to the inception of an activity, been established for
that particular activity under the relevant license, such rates
and terms shall be retroactive to the inception of activity
under the relevant license covered by such rates and terms. In
other cases where rates and terms do not expire on a specified
date, successor rates and terms shall take effect on the first
day of the second month that begins after the publication of
the determination of the Copyright Royalty Judges in the
Federal Register, except as otherwise provided in this title,
or by the Copyright Royalty Judges, or as agreed by the
participants in a proceeding that would be bound by the rates
and terms. Except as otherwise provided in this title, the
rates and terms, to the extent applicable, shall remain in
effect until such successor rates and terms become effective.
(C) Obligation to make payments. -
(i) The pendency of an appeal under this subsection shall
not relieve persons obligated to make royalty payments under
section 111, 112, 114, 115, 116, 118, 119, or 1003, who would
be affected by the determination on appeal, from -
(I) providing the statements of account and any report of
use; and
(II) paying the royalties required under the relevant
determination or regulations.
(ii) Notwithstanding clause (i), whenever royalties
described in clause (i) are paid to a person other than the
Copyright Office, the entity designated by the Copyright
Royalty Judges to which such royalties are paid by the
copyright user (and any successor thereto) shall, within 60
days after the final resolution of the appeal, return any
excess amounts previously paid (and interest thereon, if
ordered pursuant to paragraph (3)) to the extent necessary to
comply with the final determination of royalty rates on
appeal. Any underpayment of royalties resulting from an
appeal (and interest thereon, if ordered pursuant to
paragraph (3)) shall be paid within the same period.
(3) Jurisdiction of court. - If the court, pursuant to section
706 of title 5, modifies or vacates a determination of the
Copyright Royalty Judges, the court may enter its own
determination with respect to the amount or distribution of
royalty fees and costs, and order the repayment of any excess
fees, the payment of any underpaid fees, and the payment of
interest pertaining respectively thereto, in accordance with its
final judgment. The court may also vacate the determination of
the Copyright Royalty Judges and remand the case to the Copyright
Royalty Judges for further proceedings in accordance with
subsection (a).
(e) Administrative Matters. -
(1) Deduction of costs of library of congress and copyright
office from filing fees. -
(A) Deduction from filing fees. - The Librarian of Congress
may, to the extent not otherwise provided under this title,
deduct from the filing fees collected under subsection (b) for
a particular proceeding under this chapter the reasonable costs
incurred by the Librarian of Congress, the Copyright Office,
and the Copyright Royalty Judges in conducting that proceeding,
other than the salaries of the Copyright Royalty Judges and the
3 staff members appointed under section 802(b).
(B) Authorization of appropriations. - There are authorized
to be appropriated such sums as may be necessary to pay the
costs incurred under this chapter not covered by the filing
fees collected under subsection (b). All funds made available
pursuant to this subparagraph shall remain available until
expended.
(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.