Statement of Significant Interest
COPYRIGHT ROYALTY BOARD
United States Copyright Office
In the Matter of
Distribution of 2014 DART Sound Recordings Fund
Docket No. 15-CRB-0011 DART
PETITION TO PARTICIPATE
Pursuant to 37 C.F.R. § 351.1(b)(2)(i) and in accordance with the Notice announcing commencement of proceeding with request for Petitions to Participate, issued by the Copyright Royalty Board (“CRB”), the Alliance of Artists and Recording Companies (“AARC”) hereby files its Petition to Participate in the proceeding to determine the distribution of the digital audio recording technology (“DART”) 2014 Sound Recordings Fund Featured Recording Artists (“SRF/FRA”) and Copyright Owners (“SRF/CO”) Subfunds. 37 C.F.R. § 351.1(b)(2)(i) (2018); Distribution of Digital Audio Recording Royalty Funds, Docket No. 15-CRB-0011 DART (SRF/CO) [I.] (2014), 84 Fed. Reg. 49,562 (Sept. 20, 2019) (“2014 DART SRF Proceeding Notice”). [II.]
AARC is a non-profit organization formed to administer the Audio Home Recording Act of 1992 (“AHRA”) royalties for featured recording artists and sound recording copyright owners, who have authorized it to do so. Audio Home Recording Act of 1992, 17 U.S.C. §§ 1001-1010 (2016). AARC represents over 440,000 featured recording artists and over 16,000 labels and, therefore, is an “interested copyright party” as defined in section 1001(7)(D) of the AHRA. 17 U.S.C. § 1001(7)(D) (2016).
On January 21, 2016, in response to AARC’s notice of settlement and request for partial distribution of the 2014 DART SRF/FRA and SRF/CO Subfunds filed by AARC, on behalf of itself, Emmanuel Adeyinka (“Adeyinka”) and Benjamin Bacon (“Bacon”), the settling parties, the CRB distributed 98% of the Sound Recordings Fund. Order Granting AARC’s Request for Partial Distribution of Royalties from the 2014 DART Sound Recordings Fund, In re Distribution of 2014 Digital Audio Recording Royalty Funds, Docket No. 15-CRB-0011 DART SR (CO/FA) (2014) (Jan. 21, 2016); see also Notice of Settlement and Request for Partial Distribution of the 2014 DART Sound Recordings Fund Featured Recording Artists and Copyright Owners Subfunds Royalties, In the Matter of Distribution of DART Sound Recordings Fund Featured Recording Artists and Copyright Owners Subfund Royalties for 2014, Docket No. 15-CRB-0011 DART SR (CO/FA) (2014) (July 23, 2015) (“2014 AARC Settlement Notice”). According to the 2014 AARC Settlement Notice, Dwight Sanders (“Sanders”), [III.] Eric Burns (“Burns”), [IV.] Tajai Music, Inc. (“Tajai”), Herman Kelly (“Kelly”) and Afterschool Publishing Company (“APC”) were non-settling parties. 2014 AARC Settlement Notice.
II. PETITION TO PARTICIPATE
AARC is an “interested copyright party” as defined in § 1001 (7)(D) of the AHRA and has a significant interest in the 2014 DART Sound Recordings Fund distribution proceeding. 17 U.S.C. § 1001(7)(D); 37 C.F.R. § 351.1 (b)(2)(i)(C); 2014 DART SRF Proceeding Notice. AARC represents the majority of the copyright owners of sound recordings that were embodied in digital or analog musical recordings and distributed during the 2014 royalty year, all of whom have filed claims in the 2014 DART Sound Recordings Fund distribution proceeding. AARC has participated in and received all or substantially all of the funds through settlement or award for the royalty year 2014, as specified in Part I above, and all other DART distribution proceedings held since the enactment of the AHRA.
AARC has filed claims and petitions to participate in the following:
Royalty Year Featured Recording Artists Subfund Copyright Owners Subfund
2014 X X
III. PAPER PROCEEDINGS
The 2014 DART SRF Proceeding Notice reported that the CRB finds it appropriate to conduct a paper proceeding because of “the relatively modest amount of royalties in dispute after previously approved partial distributions and the anticipated small number of non-settling parties.” 2014 DART SRF Proceeding Notice at 49,563; 17 U.S.C. § 803(b)(5)(B) (2016); 37 C.F.R. § 351.3(c) (2018). This means that the CRB will determine the remaining issues on the basis of “the filing of a written direct statement by each participant, a response of an opposing
participant, and one additional response from the participant.” 2014 DART SRF Proceeding Notice at 49,563; 17 U.S.C. § 803(b)(5)(B).
AARC hereby supports the CRB’s decision. Section 803(b)(5) of the United States Code, which addresses paper proceedings, was implemented to provide “access to the adjudicative process to persons with relatively small copyright royalty claims while, at the same time, not allowing small claimants to unfairly exploit settlement leverage by unreasonably prolonging proceedings.” Procedural Regulations for the Copyright Royalty Board, 70 Fed. Reg. 30,901, 30,903 (May 31, 2005); 17 U.S.C. § 803(b)(5)(B). Moreover, the CRB has broad discretion to impose such paper proceedings. Procedural Regulations for the Copyright Royalty Board, 70 Fed. Reg. 30,901, 30,903 (May 31, 2005); 17 U.S.C. § 803(b)(5)(B).
Copyright Arbitration Royalty Panel (“CARP”) precedent is relevant in determining the need for evidentiary hearings. Section 803 states that prior CAPR decisions shall be considered by the CRB for their precedential value. 17 U.S.C. § 803(a)(1) (2016) (“The Copyright Royalty Judge shall act . . . on the basis of a written record, prior determinations and interpretations of the Copyright Royalty Tribunal, Librarian of Congress, the Register of Copyrights, copyright arbitration royalty panels . . ..”). The CARP has waived formal hearings for paper proceedings when it serves a public interest by “minimiz[ing] the costs to all claimants while still allowing complete consideration of all of the evidence already submitted by the parties in their direct cases.” CARP Order, Docket No. 95-1 CARP DD 92-94 (Oct. 4, 1996); see Distribution of the 1992, 1993, and 1994 Musical Works Funds, 62 Fed. Reg. 6,558, 6,559 (Feb. 12, 1997). Paper proceedings have been authorized by the CARP on the grounds that they avoid the high administrative costs of a formal hearing in proceedings where, as in this case, there are small amount of royalties in controversy. Scheduling Order, In the Matter of Distribution of 1995, 1996, 1997 and 1998 Digital Audio Recording Funds, Docket No. 99-3 CARP DD 95-98 (Jun. 19, 2000) (granting the Motion to Decide the Controversy on the Basis on Written Pleadings “[b]ased upon the record in this case and the full arguments of the parties and upon due deliberation by the Panel”).
Here we have a relatively small sum of money with few non-settling parties. Therefore, it is clear that in this case, “live hearings would not aid the Judges in their deliberations and any legal requirements could be met with paper proceedings.” Procedural Regulations for the Copyright Royalty Board, 70 Fed. Reg. 30,901, 30,903 (May 31, 2005); cf. Mathew v. Eldridge, 424 U.S. 319, 348 (1976) (asserting that an evidentiary hearing is not always the most effective method of decision making); United States v. Florida E. Coast Ry. Co., 410 U.S. 224, 239-42 (1973) (holding that the opportunity to present written submissions of their case satisfied the “hearing requirement” of the Administrative Procedure Act without the need for oral arguments, cross-examination or oral testimony); U.S. ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645, 652 (D.C. Cir. 1994) (holding that a paper proceeding was sufficient to satisfy the “hearing” requirement).
IV. FILING FEE
In the Consolidated Proceeding Notice, pursuant to the AHRA and CRB regulations, the CRB ordered any interested party whose claim does not exceed $1,000 to provide a statement to that effect. No filing fee is required for such claims. Any interested party whose claim does exceed $1,000, must file a $150 filing fee payment with its petition. 37 C.F.R. § 351.1(b)(4) (2018); Consolidated Proceeding Notice at 66,313. AARC will seek distribution in excess of $1,000. Therefore, in accordance with 17 U.S.C. § 803(b)(2)(D)(ii)(I) and 37 C.F.R. § 351.1(b)(4), the fee of one hundred and fifty dollars ($150) is being paid in the eCRB through Pay.gov. 17 U.S.C. § 803(b)(2)(D)(ii)(I) (2016); 37 C.F.R. § 351.1(b)(4).
Pursuant to the 2014 DART SRF Proceeding Notice, and in accordance with the requirements of the AHRA and the CRB regulations, AARC hereby submits its Petition to Participate in the 2014 DART SRF proceeding for the distribution of the 2014 DART SRF/FRA and SRF/CO royalties, along with the $150 filing fee. 2014 DART SRF Proceeding Notice; 17 U.S.C. § 803(b)(2)(D)(ii)(I); 37 C.F.R. § 351.1(b)(4). AARC also supports the CRB’s decision to conduct a paper proceeding.
On Behalf of AARC
/s/Linda R. Bocchi, Esq.
Linda R. Bocchi, Esq.
DC BAR# 338012
VA BAR# 77599
Alliance of Artists and Recording Companies
700 N. Fairfax Street, Suite 601
Alexandria, VA 22314
(703) 535-8101 (phone)
October 16, 2019
[I.] Although the Proceeding Notice listed the Docket Number as Docket No. 15-CRB-0011 DART (SRF/CO), the proceeding involved both Featured Recording Artists and Copyright Owners Subfunds. Therefore, we believe the DART (SRF/CO) should be DART SRF (FA/CO).
[II.] The 2014 DART SRF Proceeding Notice does not require comments on controversies because the CRB has already determined that a controversy exists. 2014 DART/SRF Proceeding Notice at 49,562 (“Consistent with 17 U.S.C. 804(b)(8), the Judges determine that . . . a controversy exists with respect to the distribution of the 2014 Sound Recordings Fund royalties from the Copyright Owners Subfund”).
[III.] On September 11, 2015, the CRB dismissed DART SRF/CO claims of Sanders and Burns. Order Dismissing Claims of Eric Burns and Dr. Dwight Sanders, In re Distribution of Digital Audio Recording Royalty Funds, Docket No. 15-CRB-0011 DART (SRF-CO) (2014) (Sept. 11, 2015).
[IV.] See supra end. [III.]