DiMA

Copyright Office Rules CRB Can Look at Non-WSA Marketplace Agreements

The Copyright Office has issued an Opinion in the Web IV webcasting stautory rate-setting proceeding, following the referral centered on the CRB’s use of marketplace, non-WSA agreements that either referenced, had identical or similar provisions, or otherwise “considered” the WSA agreement, in their terms.

The Copyright Office has said that the CRB CAN use those agreements, noting:

 

“Section 114(f)(5)(C) bars the CRJ’s from considering the terms of agreements negotiated under the 2009 WSA. Nowhere does the statute suggest that the mere existence of such agreements, or their general effect on the marketplace or particular negotiations, may not be considered.”

 And concluding:

 “This commentary in the Consent Decree case further supports the Register's determination that evidence concerning the general impact and influence of the WSA agreements - and the statutory licensing regime that gave rise to them – may appropriately be considered by the CRJs in evaluating the probative value of the direct agreements.”

This is important, since it is the first time that we have real, marketplace agreements that can be considered by the CRJ’s, that show below-CRB rates being agreed to in the market. DiMA is delighted to see that the CRJ’s continue to look at the Web IV proceeding (and hopefully all proceedings that will come before them) with a view towards including and evaluating as much evidence as possible.