Copyright Royalty Board Final Rule on Digital Performance Rates

Content

ACTION:

Final rule.

SUMMARY:

The Copyright Royalty Judges publish a final rule governing the rates and terms for the digital performance of sound recordings
by certain public radio stations and for the making of ephemeral recordings necessary for the facilitation of such transmissions
for the period commencing January 1, 2026, and ending on December 31, 2030.

DATES:

Effective March 10, 2026.

Applicability date: The regulations apply to the license period beginning January 1, 2026, and ending December 31, 2030.

ADDRESSES:

Docket: For access to the docket, go to eCRB, the Copyright Royalty Board's electronic filing and case management system,
at https://app.crb.gov/, and search for docket number 23-CRB-0012-WR (2026-2030).

FOR FURTHER INFORMATION CONTACT:

Anita Brown, CRB Program Specialist, at (202) 707-7658 or crb@loc.gov.

SUPPLEMENTARY INFORMATION:

Background

On May 16, 2025, the Copyright Royalty Judges (“Judges”) published a proposed rule governing the rates and terms for the digital
performance of sound recordings by certain public radio stations and for the making of ephemeral recordings necessary for
the facilitation of such transmissions for the period commencing January 1, 2026, and ending on December 31, 2030. 90 FR 20982.
The rates and terms in the proposed rule were the subject of a settlement between SoundExchange, Inc. (“SoundExchange”), and
National Public Radio, Inc. (“NPR”), and the Corporation for Public Broadcasting (“CPB”). Joint Motion to Adopt Partial Settlement,
Docket No. 23-CRB-0012-WR (2026-2030). Those who would be bound by the terms, rates, or other determination set by the agreement
were given the opportunity to comment and participants in the Web VI proceeding were given the opportunity to object to any
or all of the proposed regulations.

The Judges received one comment from David Powell, who is not a participant in the proceeding. While Mr. Powell's comment
is largely incomprehensible, he appears to take issue with the fact that he was not provided leave to file an untimely petition
to participate in the proceeding. He also appears to take issue with royalty distribution practices of SoundExchange.

The Judges “may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties
to the agreement,” only “if any participant [in the proceeding] objects to the agreement and the [Judges] conclude, based
on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms
or rates,” 17 U.S.C. 801(b)(7)(A)(ii), or where the negotiated agreement includes provisions that are contrary to the provisions
of the applicable licenses or otherwise contrary to statutory law. No Web VI participant has objected to the settlement. The
Register of Copyrights has completed her review of the CRB's Final Rule for legal error, under 17 U.S.C. 803(f)(1)(D), and
will not be issuing any corrections. In the absence of any objection from a participant, and in the absence of any cognizable
indication that the Final Rule includes provisions that are contrary to the applicable licenses or otherwise contrary to statutory
law, the provisions of 17 U.S.C. 801(b)(7)(A) direct the Judges to adopt the Final Rule. Therefore, the Judges adopt the terms
and rates as proposed. The Judges find that under the circumstances of this proceeding and this settlement, adoption of the
Final Rule is directed by the statute, and that such directed adoption is principally a ministerial function by the Judges.

List of Subjects in 37 CFR Part 380

Copyright, Sound recordings, Webcasters.

Final Regulations

For the reasons set forth in the preamble, the Copyright Royalty Judges amend 37 CFR part 380 as follows:

PART 380—RATES AND TERMS FOR TRANSMISSIONS BY ELIGIBLE NONSUBSCRIPTION SERVICES AND NEW SUBSCRIPTION SERVICES AND FOR THE

MAKING OF EPHEMERAL REPRODUCTIONS TO FACILITATE THOSE TRANSMISSIONS

Regulatory Text 1. The authority citation for part 380 continues to read as follows:

Authority:

17 U.S.C. 112(e), 114(f), 804(b)(3).

1. Revise subpart D to read as follows:

Subpart D—Public Broadcasters

Sec. 380.30 Definitions. 380.31 Royalty fees for the public performance of sound recordings and for ephemeral recordings. 380.32 Terms for making payment of royalty fees and statements of account.

§ 380.30 Definitions.

For purposes of this subpart, the following definitions apply:

Authorized website is any website operated by or on behalf of any Public Broadcaster that is accessed by website Users through a Uniform Resource
Locator (“URL”) owned by such Public Broadcaster and through which website Performances are made by such Public Broadcaster.

CPB is the Corporation for Public Broadcasting.

Music ATH is Aggregate Tuning Hours of website Performances of sound recordings of musical works.

NPR is National Public Radio, Inc.

Originating Public Radio Station is a noncommercial terrestrial radio broadcast station that—

(1) Is licensed as such by the Federal Communications Commission;

(2) Originates programming and is not solely a repeater station;

(3) Is a member or affiliate of NPR, American Public Media, Public Radio International, or Public Radio Exchange, a member
of the National Federation of Community Broadcasters, or another public radio station that is qualified to receive funding
from CPB pursuant to its criteria;

(4) Qualifies as a “noncommercial webcaster” under 17 U.S.C. 114(f)(4)(E)(i); and

(5) Either—

(i) Offers website Performances only as part of the mission that entitles it to be exempt from taxation under section 501
of the Internal Revenue Code of 1986 (26 U.S.C. 501); or

(ii) In the case of a governmental entity (including a Native American Tribal governmental entity), is operated exclusively
for public purposes.

Person is a natural person, a corporation, a limited liability company, a partnership, a trust, a joint venture, any governmental
authority or any other entity or organization.

Public Broadcasters are NPR, American Public Media, Public Radio International, and Public Radio Exchange, and up to 530 Originating Public Radio
Stations as named by CPB. CPB shall notify SoundExchange annually of the eligible Originating Public Radio Stations to be
considered Public Broadcasters per this definition (subject to the numerical limitations set forth in this definition). The
number of Originating Public Radio Stations treated per this definition as Public Broadcasters shall not exceed 530 for a
given year without SoundExchange's express written approval, except that CPB shall have the option to increase the number
of Originating Public Radio Stations that may be considered Public Broadcasters as provided in § 380.31(d).

Side Channel is any internet-only program available on an Authorized website or an archived program on such Authorized website that, in
either case, conforms to all applicable requirements under 17 U.S.C. 114.

Term is the period January 1, 2026, through December 31, 2030.

Website is a site located on the World Wide Web that can be located by a website User through a principal URL.

Website Performances are all public performances by means of digital audio transmissions of sound recordings, including the transmission of any
portion of any sound recording, made through an Authorized website in accordance with all requirements of 17 U.S.C. 114, from
servers used by a Public Broadcaster (provided that the Public Broadcaster controls the content of all materials transmitted
by the server), or by a contractor authorized pursuant to § 380.31(g), that consist of either the retransmission of a Public
Broadcaster's over-the-air terrestrial radio programming or the digital transmission of nonsubscription Side Channels that
are programmed and controlled by the Public Broadcaster; provided, however, that a Public Broadcaster may limit access to
an Authorized website, or a portion thereof, or any content made available thereon or functionality thereof, solely to website
Users who are contributing members of a Public Broadcaster. This term does not include digital audio transmissions made by
any other means.

Website Users are all those who access or receive website Performances or who access any Authorized website.

§ 380.31 Royalty fees for the public performance of sound recordings and for ephemeral recordings.

(a) Royalty fees. The total license fee for all website Performances by Public Broadcasters during each year of the Term, up to the total Music
ATH limit set forth in paragraph (b) of this section, and Ephemeral Recordings made by Public Broadcasters solely to facilitate
such website Performances, shall be as follows (the “License Fee”), unless additional payments are required as described in
paragraph (d) of this section:

(1) 2026: $950,000;

(2) 2027: $975,000;

(3) 2028: $1,000,000;

(4) 2029: $1,025,000; and

(5) 2030: $1,050,000.

(b) ATH limit. The total Music ATH limit is 310,000,000 Music ATH per year.

(c) Calculation of License Fee. It is understood that the License Fee includes:

(1) An annual minimum fee for each Public Broadcaster for each year during the Term;

(2) Additional usage fees for certain Public Broadcasters; and

(3) A discount that reflects the administrative convenience to the Collective (for purposes of this subpart, the term “Collective”
refers to SoundExchange, Inc.) of receiving consolidated reporting of usage in accordance with § 380.32(b) that covers a large
number of separate entities and annual lump sum payments that cover a large number of separate entities, as well as the predictability,
time value of money and protection from bad debt that arises from being paid in advance.

(d) Increase in Public Broadcasters. If the total number of Originating Public Radio Stations that wish to make website Performances in any calendar year exceeds
the number of such Originating Public Radio Stations considered Public Broadcasters in the relevant year, and the excess Originating
Public Radio Stations do not wish to pay royalties for such website Performances apart from this subpart, CPB may elect by
written notice to the Collective to increase the number of Originating Public Radio Stations considered Public Broadcasters
in the relevant year effective as of the date of the notice. To the extent of any such elections, CPB shall make an additional
payment to the Collective for each calendar year or part thereof it elects to have an additional Originating Public Radio
Station considered a Public Broadcaster, in the amount of the annual minimum fee applicable to Noncommercial Webcasters under
subpart B of this part for each additional Originating Public Radio Station per year. Such payment shall accompany the notice
electing to have an additional Originating Public Radio Station considered a Public Broadcaster.

(e) Ephemeral Recordings royalty fees; allocation between Ephemeral Recordings and performance royalty fees. The Collective must credit 5% of all royalty payments under this subpart as payment for Ephemeral Recordings and credit the
remaining 95% to section 114 royalties. All Ephemeral Recordings that a Licensee makes which are necessary and commercially
reasonable for making noninteractive digital transmissions are included in the 5%.

(f) Effect of non-performance by any Public Broadcaster. In the event that any Public Broadcaster violates any of the material provisions of 17 U.S.C. 112(e) or 114 or this subpart
that it is required to perform, the remedies of the Collective shall be specific to that Public Broadcaster only, and shall
include, without limitation, termination of that Public Broadcaster's right to be treated as a Public Broadcaster per this
paragraph (f) upon written notice to CPB. The Collective and Copyright Owners also shall have whatever rights may be available
to them against that Public Broadcaster under applicable law. The Collective's remedies for such a breach or failure by an
individual Public Broadcaster shall not include termination of the rights of other Public Broadcasters to be treated as Public
Broadcasters per this paragraph (f), except that if CPB fails to pay the License Fee or otherwise fails to perform any of
the material provisions of this subpart, or such a breach or failure by a Public Broadcaster results from CPB's inducement,
and CPB does not cure such breach or failure within 30 days after receiving notice thereof from the Collective, then the Collective
may terminate the right of all Public Broadcasters to be treated as Public Broadcasters per this paragraph (f) upon written
notice to CPB. In such a case, a prorated portion of the License Fee for the remainder of the Term (to the extent paid by
CPB) shall, after deduction of any damages payable to the Collective by virtue of the breach or failure, be credited to statutory
royalty obligations of Public Broadcasters to the Collective for the Term as specified by CPB.

(g) Use of contractors. The right to rely on this subpart is limited to Public Broadcasters, except that a Public Broadcaster may employ the services
of a third Person to provide the technical services and equipment necessary to deliver website Performances on behalf of such
Public Broadcaster, but only through an Authorized website. Any agreement between a Public Broadcaster and any third Person
for such services shall:

(1) Obligate such third Person to provide all such services in accordance with all applicable provisions of the statutory
licenses and this subpart;

(2) Specify that such third Person shall have no right to make website Performances or any other performances or Ephemeral
Recordings on its own behalf or on behalf of any Person or entity other than a Public Broadcaster through the Public Broadcaster's
Authorized website by virtue of its services for the Public Broadcaster, including in the case of Ephemeral Recordings, pre-encoding
or otherwise establishing a library of sound recordings that it offers to a Public Broadcaster or others for purposes of making
performances, but instead must obtain all necessary licenses from the Collective, the copyright owner or another duly authorized
Person, as the case may be;

(3) Specify that such third Person shall have no right to grant any sublicenses under the statutory licenses; and

(4) Provide that the Collective is an intended third-party beneficiary of all such obligations with the right to enforce a
breach thereof against such third Person.

§ 380.32 Terms for making payment of royalty fees and statements of account.

(a) Payment to the Collective. Except as provided in paragraphs (a)(1) through (3) of this section, CPB shall pay the License Fee to the Collective in the
annual installments specified in § 380.31(a), which shall be due in advance on December 31, 2025, and annually thereafter
through December 31, 2029.

(1) CPB inability to pay. If, due to a significant decrease in U.S. government funding for CPB as compared to years prior to the Term, CPB reasonably
concludes that it is impossible for CPB to pay the License Fee for a particular year during the Term, CPB may by written notice
to the Collective prior to December 1 of the preceding year nominate NPR or a third party to pay the License Fee for such
year. In such a case, if by December 15 of the preceding year, NPR or such third party agrees by written notice to the Collective
to assume CPB's obligation to pay the License Fee for such year, NPR or such third party shall do so by December 31 of the
preceding year.

(2) Dissolution of CPB. If CPB ceases to exist, and if NPR or any successor to CPB's mission or other third party agrees by written notice to the
Collective to assume CPB's obligation to pay the License Fee for the remaining years of the Term, NPR or such successor shall
do so by December 31 preceding each remaining year of the Term. In such a case, NPR or such successor or other third party
shall exercise all the rights of CPB under this subpart (e.g., identifying the eligible Originating Public Radio Stations to be considered Public Broadcasters), and must exercise all the
responsibilities of CPB under this subpart (e.g., providing reporting in accordance with paragraph (b) of this section).

(3) Consequence of nonpayment. If the Collective does not receive the License Fee for any year of the Term by December 31 of the preceding year, then the
provisions of this subpart shall be unavailable to Public Broadcasters for such year, and any Public Broadcaster making website
Performances and related Ephemeral Recordings during such year must pay appliable royalty fees, and comply with applicable
statutory license terms, under subparts A and B of this part, except that if the Copyright Royalty Judges have adopted pursuant
to 17 U.S.C. 801(b)(7)(A) a lower per-Performance rate for Nonsubscription transmissions by some other group of Licensees
during such year, such lower per-Performance rate will apply to website Performances by Public Broadcasters during such year
in any situation in which a per-Performance royalty is payable under subparts A and B of this part.

(b) Reporting. CPB and Public Broadcasters shall submit reports of use and other information concerning website Performances as agreed upon
with the Collective.

(c) Terms in general. Subject to the provisions of this subpart, terms governing late fees, distribution of royalties by the Collective, unclaimed
funds, record retention requirements, treatment of Licensees' confidential information, audit of royalty payments and distributions,
and any definitions for applicable terms not defined in this subpart shall be those set forth in subpart A of this part.

Dated: February 25, 2026. Trevor Jefferson, Interim Chief Copyright Royalty Judge. David R. Strickler, Copyright Royalty Judge. Steve Ruwe, Copyright Royalty Judge. Approved by:

Robert R. Newlen, Acting Librarian of Congress. [FR Doc. 2026-04633 Filed 3-9-26; 8:45 am] BILLING CODE 1410-72-P

Download File

Download