On June 30th, SoundExchange presented a webinar, “Q2Y10 Webinar for Service Providers,” to address licensing options for services, materials that services need to submit, and what happens to the royalties SoundExchange collects from services. During the event, we asked the 75 participants to ask us their questions about SoundExchange and statutory licensing. Below are those questions, verbatim, with responses from our team. They’re presented in the order they were asked (we’ve removed names and contact information for privacy).
Video of the webinar:
1. Q: If we have a 30 or 60 second clip on our website for listeners to vote for their favorite new songs, do those 30 or 60 seconds count as a performance and need to be reported?
A: If the clip is posted on the website for anyone to access at any time, then it would be considered available “on demand” and would therefore not be eligible for the statutory license. However, a related question that services sometimes ask is whether a 30 second excerpt of a sound recording counts as a “performance” under the statutory license. In general, the answer is “yes.” There is no “excerpt” exception in the regulations. There is an exception for “incidental performances,” but a performance is not incidental merely because it is short or an excerpt. Please review 37 C.F.R. § 380.2(i) for the definition of “performance” and the explanation of the exception for “incidental” performances.
2. Q: International, which countries or continents mainly?
A: SoundExchange has agreements in place with collecting societies in Brazil, Ireland, Mexico, the Netherlands, Spain, and the UK. We are constantly working to expand the territories we work and currently negotiating with over a dozen additional societies throughout the world.
3. Q: If we have a band visit and sing a song live on the radio and we record that visit and want to put that video on our website, would that count as a performance when someone comes to our website to watch it? And do we need to report it for each play?
A: In general, audio visual works are not covered by the statutory license and so as a threshold matter, the video would not be within the scope of the license that we administer. That doesn’t mean you don’t need a license: you would need to consult legal counsel to make sure you had the permissions you need. If the recording was not a video, however, and you wanted to transmit it via a non-interactive digital audio transmission, you would need to determine whether the sound recording was eligible for statutory licensing, and whether you intended to rely on the statutory license in making that transmission. If the answer to those questions is “yes,” then you would need to count it as a performance.
4. Q: Can you give Travis’ e-mail for detailed questions?
A: Travis Ploeger’s email is TPloeger@SoundExchange.com. Travis sometimes takes vacations, however, so if you want to be sure that your email reaches someone promptly, please send an email to Info@SoundExchange.com.
5. Q: Do you have an agreement with Re-Sound in Canada for the payment of Canadian labels and artists?
A: Re:Sound is one of the many societies SoundExchange is currently in discussions with about exchanging royalties to ensure that American and Canadian performers and record companies are compensated for the use of their works.
6. Q: What is the proper way to list song info for a club DJ type mix? Who’s the featured artist? The mixer?
A: Services should report the sound recordings exactly as they appear on the commercially released product. If a transmission includes multiple sound recordings, each sound recording should be separately identified.
7. Q: Does Internet radio include Satellite radio?
A: Satellite radio and internet radio are both eligible for statutory licenses created pursuant to the same statute, but are subject to different rates. The rates for satellite radio are set forth in 37 C.F.R. Part 382 Subpart B. Internet Radio is subject to a wide variety of rates including those specified in 37 C.F.R. Part 380 as well as the rates and terms established under the Webcaster Settlement Act.
8. Q: What is Flight Plan’s website?
9. Q: Should Talk Radio stations be reporting performances for songs played as lead-ins to talk segments or for background music where only a portion of a song is used?
A: It would depend on the facts. Please review the definition of “performance,” and the explanation of “incidental performances” in 37 C.F.R. § 380.2(i) and consult your own legal advisor for guidance.
10. Q: You mentioned poor data being a problem. What do you do with payments received with accompanying data that is incomplete?
A: In general, we do our best to identify the sound recording, including the proper rights owner and featured artist that the service intended to report. We do so through a variety of means, many of which are manual, and often we have to contact the service for additional help.
11. Q: What about HD Radio side channels being streamed? With HD cume numbers so minimal, shouldn’t rates for these be set low until the format gets a chance for some real traction?
A: In general, the rates and terms for internet radio do not differentiate between simulcasts of traditional over-the-air signals, simulcasts of HD channels, and internet-only webcasts. Whether the rates should be different is a matter of opinion that has been subject to significant debate. Notably, however, the royalty rates in the agreement that SoundExchange reached with the NAB last year did not differentiate between internet-only transmissions and simulcasts.
12. Q: If a station broadcast is being made available via internet to a cable company, which license is required? A webcaster license or separate cable license when delivery of stream is via internet?
A: The answer to this question would depend on the facts and you should contact your own legal advisor for guidance. In general, the “new subscription service” rates for cable radio services (such as DMX and Urge) are available only when the transmission is part of a cable- or satellite-television residential service – i.e., received via a cable or satellite-television set top box.
13. Q: What would you suggest in terms of licensing for someone that has less than 100 listeners per month? Less than 1,000 listeners per month?
A: We do not make recommendations about which license type a service should choose, because that is up to you (and the eligibility requirements), although we are happy to talk about the options that are available. To assess the different options, however, you will want to determine your monthly usage; the total number of listeners is less relevant than the total number of listening hours.