BY PAUL MALONEY
A proposed webcasting royalty agreement between noncommercial webcasters and copyright owners would require non-comm webcasters to pay only flat minimum fees through 2003, and which (for an additional fee from webcasters) eliminates the recordkeeping requirements through next year.

Most participating non-comm webcasters would pay between $200 and $500 annually through 2004 (1998 and 1999 together count as one year). For 2003 and 2004, webcasters will pay an additional $50 for 2003 and $25 for 2004 in lieu recordkeeping from these years.


Finally, non-comms get a deal
Noncommercial webcasters have seen both commercial webcasters and broadcasters strike deals with copyright owners that improved those groups' royalty terms over the original CARP determination. Most non-comms, until now, have been without a deal of their own.

The passage of the Small Webcasters Settlement Act of 2002 (SWSA) allowed SoundExchange to forge agreements with noncommercial webcasters on rates covering the period of October 28, 1998 to December 31, 2004. These optional agreements would replace the original CARP/Librarian of Congress's determination on webcasting rates for this period for webcasters that elect to pay according to this plan. That determination set a royalty rate of $.0002/performance for non-comms, with a minimum payment of $500 for each calendar year or portion thereof.

Under the original determination, a non-comm webcaster that played an aveage of 16 songs an hour and had an average of only 50 listeners would be liable for over $1400 per year, plus the costs associated with expensive required recordkeeping.

Joel Willer of the University of Louisiana at Monroe participated in the negotiations on behalf of college Webcasters. Willer (pictured right) said, in a press release, "Our ability to negotiate an entirely fair rate was severely hampered by the current provisions of the law and by the precedent of the Librarian's rate decision. This agreement will allow more stations to survive while we pursue a more permanent solution from Congress."

Fritz Kass of the Intercollegiate Broadcasting System, Inc. ("IBS") is especially satisfied with the elimination of the record-keeping requirement. He told RAIN in an e-mail, "student-operated, all-volunteer organizations have limited administrative ability but a great need to learn and build their skills in communication -- particularly digital streaming -- in the safe nurturing atmosphere of an educational environment."


Religious webcasters
"especially instrumental"
The agreement would cover the period from the effective date of the Digital Millennium Copyright Act (DMCA), October 28, 1998 through 2004. Representatives of noncommercial webcasters reached the agreement with SoundExchange late Saturday night, and have requested the U.S. Copyright Office publish the terms in the Federal Register to be made available to all eligible parties.

SoundExchange is the "designated agent" for the collection and distribution of sound recording performance royalties, which are to be distributed to copyright owners (usually record companies) and featured and background performers.

A RAIN source commented that the religious broadcasters, represented by the National Religious Broadcasters Music License Committee ("NRBMLC") were "especially instrumental" in getting noncommercial webcasters this "good deal." RAIN readers may remember that it was widely reported that the religious broadcasters (along with other non-comm broadcasters like WCPE) played a role in getting Senator Jesse Helms to back a motion changing the HR 5469 from the proposed (SWAA) to the eventually-adopted SWSA. The change, among other things, gave SoundExchange to power to negotiate for all copyright holders for rates applicable to the "retroactive" period from October of 1998 to September 1, 2002.

Noncommercial webcasters were represented in the negotiations by the NRBMLC; Collegiate Broadcasters, Inc. ("CBI"); the IBS jointly with Harvard Radio Broadcasting Co., Inc.; and the American Council on Education ("ACE"). Noncommercial webcasters that are not members of one of these organizations would still be eligible for these rates, under the proposal.

"We have been working for several years to ensure rates and terms that will allow our member stations to continue to grow and innovate," said CBI vice-chairman Will Robedee (pictured left), in a press release. "While these rates and conditions are not everything we had hoped for, this agreement represents a significant step in securing a future for college Webcasters."


Wide variance in minimum fees
The annual fees vary depending upon the different natures of noncommercial webcasters (e.g. Noncommercial Educational Entities, or "NEEs" as opposed to "other" noncom webcasters, single-channel or multi-channel, music-oriented or news/talk/sports-oriented, etc.).

Further, webcasters exceeding 146,000 "Aggregate Tuning Hours" per month in 2004 would pay additional royalties of $0.0002176 (.02176¢) per "Performance" or $.00251 (.251¢) per "Aggregate Tuning Hour," (news, talk, sports or business webcasters would pay a $.0002 (.02¢) per Aggregate Tuning Hour additional rate).

If a non-comm webcaster operates more than three channels, they will pay royalties for the additional channels as per commercial webcaster rates as per the SWSA. This clause does not apply to non-comm broadcasters which own multiple stations and simply simulcast their over-the-air programming.

Congress enacted a six-month moratorium on noncommercial webcaster royalty fee payments for royalties due from October 28, 1998 through May 31, 2003; which expired just after the agreement was reached.

Per the proposal, stations already webcasting will have until October 15 to make all payments for any streaming during the years 1998 through 2003. A new station must pay the fees within 45 days of the first webcast. Payments for 2004 will be due on or before January 31, 2004.

The IBS has made available from their site an Adobe Acrobat document detailing the terms of the proposed deal here. CBI has a very helpful FAQ (Frequently Asked Questions) on their site here.