17 U.S.C. § 803 — Proceedings of Copyright Royalty Judges

Page 194 TITLE 17—COPYRIGHTS § 803 Register of Copyrights may, on the basis of and in accordance with such decision, inter- vene as of right in any appeal of a final de- termination of the Copyright Royalty Judges pursuant to section 803(d) in the United States Court of Appeals for the Dis- trict of Columbia Circuit. If, prior to inter- vening in such an appeal, the Register of Copyrights gives notification to, and under- takes to consult with, the Attorney General with respect to such intervention, and the Attorney General fails, within a reasonable period after receiving such notification, to intervene in such appeal, the Register of Copyrights may intervene in such appeal in his or her own name by any attorney des- ignated by the Register of Copyrights for such purpose. Intervention by the Register of Copyrights in his or her own name shall not preclude the Attorney General from in- tervening on behalf of the United States in such an appeal as may be otherwise provided or required by law. (E) EFFECT ON JUDICIAL REVIEW.—Nothing in this section shall be interpreted to alter the standard applied by a court in reviewing legal determinations involving an interpre- tation or construction of the provisions of this title or to affect the extent to which any construction or interpretation of the provisions of this title shall be accorded def- erence by a reviewing court. (2) PERFORMANCE APPRAISALS.— (A) IN GENERAL.—Notwithstanding any other provision of law or any regulation of the Library of Congress, and subject to sub- paragraph (B), the Copyright Royalty Judges shall not receive performance appraisals. (B) RELATING TO SANCTION OR REMOVAL.— To the extent that the Librarian of Congress adopts regulations under subsection (h) re- lating to the sanction or removal of a Copy- right Royalty Judge and such regulations re- quire documentation to establish the cause of such sanction or removal, the Copyright Royalty Judge may receive an appraisal re- lated specifically to the cause of the sanc- tion or removal. (g) INCONSISTENT DUTIES BARRED.—No Copy- right Royalty Judge may undertake duties that conflict with his or her duties and responsibil- ities as a Copyright Royalty Judge. (h) STANDARDS OF CONDUCT.—The Librarian of Congress shall adopt regulations regarding the standards of conduct, including financial con- flict of interest and restrictions against ex parte communications, which shall govern the Copy- right Royalty Judges and the proceedings under this chapter. (i) REMOVAL OR SANCTION.—The Librarian of Congress may sanction or remove a Copyright Royalty Judge for violation of the standards of conduct adopted under subsection (h), mis- conduct, neglect of duty, or any disqualifying physical or mental disability. Any such sanction or removal may be made only after notice and opportunity for a hearing, but the Librarian of Congress may suspend the Copyright Royalty Judge during the pendency of such hearing. The Librarian shall appoint an interim Copyright Royalty Judge during the period of any such suspension. (Added Pub. L. 108–419, § 3(a), Nov. 30, 2004, 118 Stat. 2345; amended Pub. L. 109–303, § 3(3), (4), Oct. 6, 2006, 120 Stat. 1478, 1479; Pub. L. 116–94, div. P, title XIV, § 1405(a)(1), Dec. 20, 2019, 133 Stat. 3208.) Editorial Notes REFERENCES IN TEXT The General Schedule, referred to in subsec. (e)(2), is set out under section 5332 of Title 5, Government Orga- nization and Employees. PRIOR PROVISIONS A prior section 802, Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2596; Pub. L. 101–319, § 2(a), July 3, 1990, 104 Stat. 290; Pub. L. 103–198, § 2(b), Dec. 17, 1993, 107 Stat. 2305; Pub. L. 104–39, § 5(d)(2)–(4), Nov. 1, 1995, 109 Stat. 349; Pub. L. 105–80, § 8(b), Nov. 13, 1997, 111 Stat. 1533; Pub. L. 105–304, title IV, § 405(d), (e)(2)–(4), Oct. 28, 1998, 112 Stat. 2902; Pub. L. 107–273, div. C, title III, § 13301(c)(2), Nov. 2, 2002, 116 Stat. 1912, related to mem- bership and proceedings of copyright arbitration roy- alty panels, prior to the general amendment of this chapter by Pub. L. 108–419. AMENDMENTS 2019—Subsec. (b). Pub. L. 116–94, § 1405(a)(1)(A), struck out ‘‘3’’ before ‘‘full-time’’. Subsec. (e)(2). Pub. L. 116–94, § 1405(a)(1)(B), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: ‘‘Of the staff members appointed under subsection (b)— ‘‘(A) the rate of pay of 1 staff member shall be not more than the basic rate of pay payable for level 10 of GS–15 of the General Schedule; ‘‘(B) the rate of pay of 1 staff member shall be not less than the basic rate of pay payable for GS–13 of the General Schedule and not more than the basic rate of pay payable for level 10 of GS–14 of such Schedule; and ‘‘(C) the rate of pay for the third staff member shall be not less than the basic rate of pay payable for GS–8 of the General Schedule and not more than the basic rate of pay payable for level 10 of GS–11 of such Schedule.’’ 2006—Subsec. (f)(1)(A)(i). Pub. L. 109–303, § 3(3)(A), sub- stituted ‘‘subparagraph (B) and clause (ii) of this sub- paragraph’’ for ‘‘clause (ii) of this subparagraph and subparagraph (B)’’. Subsec. (f)(1)(A)(ii). Pub. L. 109–303, § 3(3)(B), added cl. (ii) and struck out former cl. (ii) which related to re- quest for interpretation by the Register of Copyrights of material question of substantive law concerning con- struction of provisions of this title that are the subject of the proceeding. Subsec. (f)(1)(D). Pub. L. 109–303, § 3(4), inserted a comma after ‘‘undertakes to consult with’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2019 AMENDMENT Pub. L. 116–94, div. P, title XIV, § 1405(b), Dec. 20, 2019, 133 Stat. 3208, provided that: ‘‘The amendments made by this section [amending this section and section 803 of this title] shall take effect with respect to fiscal year 2020 and each fiscal year thereafter.’’ EFFECTIVE DATE OF 2006 AMENDMENT Amendment by Pub. L. 109–303 effective as if included in the Copyright Royalty and Distribution Reform Act of 2004, Pub. L. 108–419, see section 6 of Pub. L. 109–303, set out as a note under section 111 of this title. § 803. Proceedings of Copyright Royalty Judges (a) PROCEEDINGS.— Page 195 TITLE 17—COPYRIGHTS § 803 (1) IN GENERAL.—The Copyright Royalty Judges shall act in accordance with this title, and to the extent not inconsistent with this title, in accordance with subchapter II of chapter 5 of title 5, in carrying out the pur- poses set forth in section 801. The Copyright Royalty Judges shall act in accordance with regulations issued by the Copyright Royalty Judges and the Librarian of Congress, and on the basis of a written record, prior determina- tions and interpretations of the Copyright Royalty Tribunal, Librarian of Congress, the Register of Copyrights, copyright arbitration royalty panels (to the extent those determina- tions are not inconsistent with a decision of the Librarian of Congress or the Register of Copyrights), and the Copyright Royalty Judges (to the extent those determinations are not inconsistent with a decision of the Register of Copyrights that was timely deliv- ered to the Copyright Royalty Judges pursu- ant to section 802(f)(1)(A) or (B), or with a de- cision of the Register of Copyrights pursuant to section 802(f)(1)(D)), under this chapter, and decisions of the court of appeals under this chapter before, on, or after the effective date of the Copyright Royalty and Distribution Re- form Act of 2004. (2) JUDGES ACTING AS PANEL AND INDIVID- UALLY.—The Copyright Royalty Judges shall preside over hearings in proceedings under this chapter en banc. The Chief Copyright Royalty Judge may designate a Copyright Royalty Judge to preside individually over such collateral and administrative pro- ceedings, and over such proceedings under paragraphs (1) through (5) of subsection (b), as the Chief Judge considers appropriate. (3) DETERMINATIONS.—Final determinations of the Copyright Royalty Judges in pro- ceedings under this chapter shall be made by majority vote. A Copyright Royalty Judge dis- senting from the majority on any determina- tion under this chapter may issue his or her dissenting opinion, which shall be included with the determination. (b) PROCEDURES.— (1) INITIATION.— (A) CALL FOR PETITIONS TO PARTICIPATE.— (i) The Copyright Royalty Judges shall cause to be published in the Federal Register no- tice of commencement of proceedings under this chapter, calling for the filing of peti- tions to participate in a proceeding under this chapter for the purpose of making the relevant determination under section 111, 112, 114, 115, 116, 118, 119, 1004, or 1007, as the case may be— (I) promptly upon a determination made under section 804(a); (II) by no later than January 5 of a year specified in paragraph (2) of section 804(b) for the commencement of proceedings; (III) by no later than January 5 of a year specified in subparagraph (A) or (B) of paragraph (3) of section 804(b) for the com- mencement of proceedings, or as otherwise provided in subparagraph (A) or (C) of such paragraph for the commencement of pro- ceedings; (IV) as provided under section 804(b)(8); or (V) by no later than January 5 of a year specified in any other provision of section 804(b) for the filing of petitions for the commencement of proceedings, if a peti- tion has not been filed by that date, except that the publication of notice requirement shall not apply in the case of proceedings under section 111 that are scheduled to commence in 2005. (ii) Petitions to participate shall be filed by no later than 30 days after publication of notice of commencement of a proceeding under clause (i), except that the Copyright Royalty Judges may, for substantial good cause shown and if there is no prejudice to the participants that have already filed peti- tions, accept late petitions to participate at any time up to the date that is 90 days be- fore the date on which participants in the proceeding are to file their written direct statements. Notwithstanding the preceding sentence, petitioners whose petitions are filed more than 30 days after publication of notice of commencement of a proceeding are not eligible to object to a settlement reached during the voluntary negotiation period under paragraph (3), and any objec- tion filed by such a petitioner shall not be taken into account by the Copyright Roy- alty Judges. (B) PETITIONS TO PARTICIPATE.—Each peti- tion to participate in a proceeding shall de- scribe the petitioner’s interest in the subject matter of the proceeding. Parties with simi- lar interests may file a single petition to participate. (2) PARTICIPATION IN GENERAL.—Subject to paragraph (4), a person may participate in a proceeding under this chapter, including through the submission of briefs or other in- formation, only if— (A) that person has filed a petition to par- ticipate in accordance with paragraph (1) (ei- ther individually or as a group under para- graph (1)(B)); (B) the Copyright Royalty Judges have not determined that the petition to participate is facially invalid; (C) the Copyright Royalty Judges have not determined, sua sponte or on the motion of another participant in the proceeding, that the person lacks a significant interest in the proceeding; and (D) the petition to participate is accom- panied by either— (i) in a proceeding to determine royalty rates, a filing fee of $150; or (ii) in a proceeding to determine dis- tribution of royalty fees— (I) a filing fee of $150; or (II) a statement that the petitioner (individually or as a group) will not seek a distribution of more than $1000, in which case the amount distributed to the petitioner shall not exceed $1000. (3) VOLUNTARY NEGOTIATION PERIOD.— (A) COMMENCEMENT OF PROCEEDINGS.— (i) RATE ADJUSTMENT PROCEEDING.— Promptly after the date for filing of peti- tions to participate in a proceeding, the Page 196 TITLE 17—COPYRIGHTS § 803 Copyright Royalty Judges shall make available to all participants in the pro- ceeding a list of such participants and shall initiate a voluntary negotiation pe- riod among the participants. (ii) DISTRIBUTION PROCEEDING.—Promptly after the date for filing of petitions to par- ticipate in a proceeding to determine the distribution of royalties, the Copyright Royalty Judges shall make available to all participants in the proceeding a list of such participants. The initiation of a vol- untary negotiation period among the par- ticipants shall be set at a time determined by the Copyright Royalty Judges. (B) LENGTH OF PROCEEDINGS.—The vol- untary negotiation period initiated under subparagraph (A) shall be 3 months. (C) DETERMINATION OF SUBSEQUENT PRO- CEEDINGS.—At the close of the voluntary ne- gotiation proceedings, the Copyright Roy- alty Judges shall, if further proceedings under this chapter are necessary, determine whether and to what extent paragraphs (4) and (5) will apply to the parties. (4) SMALL CLAIMS PROCEDURE IN DISTRIBUTION PROCEEDINGS.— (A) IN GENERAL.—If, in a proceeding under this chapter to determine the distribution of royalties, the contested amount of a claim is $10,000 or less, the Copyright Royalty Judges shall decide the controversy on the basis of the filing of the written direct statement by the participant, the response by any oppos- ing participant, and 1 additional response by each such party. (B) BAD FAITH INFLATION OF CLAIM.—If the Copyright Royalty Judges determine that a participant asserts in bad faith an amount in controversy in excess of $10,000 for the pur- pose of avoiding a determination under the procedure set forth in subparagraph (A), the Copyright Royalty Judges shall impose a fine on that participant in an amount not to exceed the difference between the actual amount distributed and the amount asserted by the participant. (5) PAPER PROCEEDINGS.—The Copyright Roy- alty Judges in proceedings under this chapter may decide, sua sponte or upon motion of a participant, to determine issues on the basis of the filing of the written direct statement by the participant, the response by any opposing participant, and one additional response by each such participant. Prior to making such decision to proceed on such a paper record only, the Copyright Royalty Judges shall offer to all parties to the proceeding the oppor- tunity to comment on the decision. The proce- dure under this paragraph— (A) shall be applied in cases in which there is no genuine issue of material fact, there is no need for evidentiary hearings, and all participants in the proceeding agree in writ- ing to the procedure; and (B) may be applied under such other cir- cumstances as the Copyright Royalty Judges consider appropriate. (6) REGULATIONS.— (A) IN GENERAL.—The Copyright Royalty Judges may issue regulations to carry out their functions under this title. All regula- tions issued by the Copyright Royalty Judges are subject to the approval of the Li- brarian of Congress and are subject to judi- cial review pursuant to chapter 7 of title 5, except as set forth in subsection (d). Not later than 120 days after Copyright Royalty Judges or interim Copyright Royalty Judges, as the case may be, are first ap- pointed after the enactment of the Copy- right Royalty and Distribution Reform Act of 2004, such judges shall issue regulations to govern proceedings under this chapter. (B) INTERIM REGULATIONS.—Until regula- tions are adopted under subparagraph (A), the Copyright Royalty Judges shall apply the regulations in effect under this chapter on the day before the effective date of the Copyright Royalty and Distribution Reform Act of 2004, to the extent such regulations are not inconsistent with this chapter, ex- cept that functions carried out under such regulations by the Librarian of Congress, the Register of Copyrights, or copyright arbitra- tion royalty panels that, as of such date of enactment, are to be carried out by the Copyright Royalty Judges under this chap- ter, shall be carried out by the Copyright Royalty Judges under such regulations. (C) REQUIREMENTS.—Regulations issued under subparagraph (A) shall include the fol- lowing: (i) The written direct statements and written rebuttal statements of all partici- pants in a proceeding under paragraph (2) shall be filed by a date specified by the Copyright Royalty Judges, which, in the case of written direct statements, may be not earlier than 4 months, and not later than 5 months, after the end of the vol- untary negotiation period under paragraph (3). Notwithstanding the preceding sen- tence, the Copyright Royalty Judges may allow a participant in a proceeding to file an amended written direct statement based on new information received during the discovery process, within 15 days after the end of the discovery period specified in clause (iv). (ii)(I) Following the submission to the Copyright Royalty Judges of written di- rect statements and written rebuttal statements by the participants in a pro- ceeding under paragraph (2), the Copyright Royalty Judges, after taking into consid- eration the views of the participants in the proceeding, shall determine a schedule for conducting and completing discovery. (II) In this chapter, the term ‘‘written di- rect statements’’ means witness state- ments, testimony, and exhibits to be pre- sented in the proceedings, and such other information that is necessary to establish terms and rates, or the distribution of roy- alty payments, as the case may be, as set forth in regulations issued by the Copy- right Royalty Judges. (iii) Hearsay may be admitted in pro- ceedings under this chapter to the extent Page 197 TITLE 17—COPYRIGHTS § 803 deemed appropriate by the Copyright Roy- alty Judges. (iv) Discovery in connection with writ- ten direct statements shall be permitted for a period of 60 days, except for discovery ordered by the Copyright Royalty Judges in connection with the resolution of mo- tions, orders, and disputes pending at the end of such period. The Copyright Royalty Judges may order a discovery schedule in connection with written rebuttal state- ments. (v) Any participant under paragraph (2) in a proceeding under this chapter to de- termine royalty rates may request of an opposing participant nonprivileged docu- ments directly related to the written di- rect statement or written rebuttal state- ment of that participant. Any objection to such a request shall be resolved by a mo- tion or request to compel production made to the Copyright Royalty Judges in ac- cordance with regulations adopted by the Copyright Royalty Judges. Each motion or request to compel discovery shall be deter- mined by the Copyright Royalty Judges, or by a Copyright Royalty Judge when per- mitted under subsection (a)(2). Upon such motion, the Copyright Royalty Judges may order discovery pursuant to regula- tions established under this paragraph. (vi)(I) Any participant under paragraph (2) in a proceeding under this chapter to determine royalty rates may, by means of written motion or on the record, request of an opposing participant or witness other relevant information and materials if, ab- sent the discovery sought, the Copyright Royalty Judges’ resolution of the pro- ceeding would be substantially impaired. In determining whether discovery will be granted under this clause, the Copyright Royalty Judges may consider— (aa) whether the burden or expense of producing the requested information or materials outweighs the likely benefit, taking into account the needs and re- sources of the participants, the impor- tance of the issues at stake, and the pro- bative value of the requested informa- tion or materials in resolving such issues; (bb) whether the requested information or materials would be unreasonably cu- mulative or duplicative, or are obtain- able from another source that is more convenient, less burdensome, or less ex- pensive; and (cc) whether the participant seeking discovery has had ample opportunity by discovery in the proceeding or by other means to obtain the information sought. (II) This clause shall not apply to any proceeding scheduled to commence after December 31, 2010. (vii) In a proceeding under this chapter to determine royalty rates, the partici- pants entitled to receive royalties shall collectively be permitted to take no more than 10 depositions and secure responses to no more than 25 interrogatories, and the participants obligated to pay royalties shall collectively be permitted to take no more than 10 depositions and secure re- sponses to no more than 25 interrogatories. The Copyright Royalty Judges shall re- solve any disputes among similarly aligned participants to allocate the num- ber of depositions or interrogatories per- mitted under this clause. (viii) The rules and practices in effect on the day before the effective date of the Copyright Royalty and Distribution Re- form Act of 2004, relating to discovery in proceedings under this chapter to deter- mine the distribution of royalty fees, shall continue to apply to such proceedings on and after such effective date. (ix) In proceedings to determine royalty rates, the Copyright Royalty Judges may issue a subpoena commanding a partici- pant or witness to appear and give testi- mony, or to produce and permit inspection of documents or tangible things, if the Copyright Royalty Judges’ resolution of the proceeding would be substantially im- paired by the absence of such testimony or production of documents or tangible things. Such subpoena shall specify with reasonable particularity the materials to be produced or the scope and nature of the required testimony. Nothing in this clause shall preclude the Copyright Royalty Judges from requesting the production by a nonparticipant of information or mate- rials relevant to the resolution by the Copyright Royalty Judges of a material issue of fact. (x) The Copyright Royalty Judges shall order a settlement conference among the participants in the proceeding to facilitate the presentation of offers of settlement among the participants. The settlement conference shall be held during a 21-day period following the 60-day discovery pe- riod specified in clause (iv) and shall take place outside the presence of the Copy- right Royalty Judges. (xi) No evidence, including exhibits, may be submitted in the written direct state- ment or written rebuttal statement of a participant without a sponsoring witness, except where the Copyright Royalty Judges have taken official notice, or in the case of incorporation by reference of past records, or for good cause shown. (c) DETERMINATION OF COPYRIGHT ROYALTY JUDGES.— (1) TIMING.—The Copyright Royalty Judges shall issue their determination in a proceeding not later than 11 months after the conclusion of the 21-day settlement conference period under subsection (b)(6)(C)(x), but, in the case of a proceeding to determine successors to rates or terms that expire on a specified date, in no event later than 15 days before the expi- ration of the then current statutory rates and terms. (2) REHEARINGS.— (A) IN GENERAL.—The Copyright Royalty Judges may, in exceptional cases, upon mo- tion of a participant in a proceeding under Page 198 TITLE 17—COPYRIGHTS § 803 subsection (b)(2), order a rehearing, after the determination in the proceeding is issued under paragraph (1), on such matters as the Copyright Royalty Judges determine to be appropriate. (B) TIMING FOR FILING MOTION.—Any mo- tion for a rehearing under subparagraph (A) may only be filed within 15 days after the date on which the Copyright Royalty Judges deliver to the participants in the proceeding their initial determination. (C) PARTICIPATION BY OPPOSING PARTY NOT REQUIRED.—In any case in which a rehearing is ordered, any opposing party shall not be required to participate in the rehearing, ex- cept that nonparticipation may give rise to the limitations with respect to judicial re- view provided for in subsection (d)(1). (D) NO NEGATIVE INFERENCE.—No negative inference shall be drawn from lack of par- ticipation in a rehearing. (E) CONTINUITY OF RATES AND TERMS.—(i) If the decision of the Copyright Royalty Judges on any motion for a rehearing is not rendered before the expiration of the statu- tory rates and terms that were previously in effect, in the case of a proceeding to deter- mine successors to rates and terms that ex- pire on a specified date, then— (I) the initial determination of the Copy- right Royalty Judges that is the subject of the rehearing motion shall be effective as of the day following the date on which the rates and terms that were previously in ef- fect expire; and (II) in the case of a proceeding under sec- tion 114(f)(1)(C), royalty rates and terms shall, for purposes of section 114(f)(3)(B), be deemed to have been set at those rates and terms contained in the initial determina- tion of the Copyright Royalty Judges that is the subject of the rehearing motion, as of the date of that determination. (ii) The pendency of a motion for a rehear- ing under this paragraph shall not relieve persons obligated to make royalty payments who would be affected by the determination on that motion from providing the state- ments of account and any reports of use, to the extent required, and paying the royalties required under the relevant determination or regulations. (iii) Notwithstanding clause (ii), whenever royalties described in clause (ii) are paid to a person other than the Copyright Office, the entity designated by the Copyright Royalty Judges to which such royalties are paid by the copyright user (and any successor there- to) shall, within 60 days after the motion for rehearing is resolved or, if the motion is granted, within 60 days after the rehearing is concluded, return any excess amounts pre- viously paid to the extent necessary to com- ply with the final determination of royalty rates by the Copyright Royalty Judges. Any underpayment of royalties resulting from a rehearing shall be paid within the same pe- riod. (3) CONTENTS OF DETERMINATION.—A deter- mination of the Copyright Royalty Judges shall be supported by the written record and shall set forth the findings of fact relied on by the Copyright Royalty Judges. Among other terms adopted in a determination, the Copy- right Royalty Judges may specify notice and recordkeeping requirements of users of the copyrights at issue that apply in lieu of those that would otherwise apply under regulations. (4) CONTINUING JURISDICTION.—The Copyright Royalty Judges may issue an amendment to a written determination to correct any tech- nical or clerical errors in the determination or to modify the terms, but not the rates, of roy- alty payments in response to unforeseen cir- cumstances that would frustrate the proper implementation of such determination. Such amendment shall be set forth in a written ad- dendum to the determination that shall be dis- tributed to the participants of the proceeding and shall be published in the Federal Register. (5) PROTECTIVE ORDER.—The Copyright Roy- alty Judges may issue such orders as may be appropriate to protect confidential informa- tion, including orders excluding confidential information from the record of the determina- tion that is published or made available to the public, except that any terms or rates of roy- alty payments or distributions may not be ex- cluded. (6) PUBLICATION OF DETERMINATION.—By no later than the end of the 60-day period pro- vided in section 802(f)(1)(D), the Librarian of Congress shall cause the determination, and any corrections thereto, to be published in the Federal Register. The Librarian of Congress shall also publicize the determination and cor- rections in such other manner as the Librarian considers appropriate, including, but not lim- ited to, publication on the Internet. The Li- brarian of Congress shall also make the deter- mination, corrections, and the accompanying record available for public inspection and copying. (7) LATE PAYMENT.—A determination of the Copyright Royalty Judges may include terms with respect to late payment, but in no way shall such terms prevent the copyright holder from asserting other rights or remedies pro- vided under this title. (d) JUDICIAL REVIEW.— (1) APPEAL.—Any determination of the Copy- right Royalty Judges under subsection (c) may, within 30 days after the publication of the determination in the Federal Register, be appealed, to the United States Court of Ap- peals for the District of Columbia Circuit, by any aggrieved participant in the proceeding under subsection (b)(2) who fully participated in the proceeding and who would be bound by the determination. Any participant that did not participate in a rehearing may not raise any issue that was the subject of that rehear- ing at any stage of judicial review of the hear- ing determination. If no appeal is brought within that 30-day period, the determination of the Copyright Royalty Judges shall be final, and the royalty fee or determination with re- spect to the distribution of fees, as the case may be, shall take effect as set forth in para- graph (2). (2) EFFECT OF RATES.— Page 199 TITLE 17—COPYRIGHTS § 803 (A) EXPIRATION ON SPECIFIED DATE.—When this title provides that the royalty rates and terms that were previously in effect are to expire on a specified date, any adjustment or determination by the Copyright Royalty Judges of successor rates and terms for an ensuing statutory license period shall be ef- fective as of the day following the date of ex- piration of the rates and terms that were previously in effect, even if the determina- tion of the Copyright Royalty Judges is ren- dered on a later date. A licensee shall be ob- ligated to continue making payments under the rates and terms previously in effect until such time as rates and terms for the successor period are established. Whenever royalties pursuant to this section are paid to a person other than the Copyright Office, the entity designated by the Copyright Royalty Judges to which such royalties are paid by the copyright user (and any successor there- to) shall, within 60 days after the final deter- mination of the Copyright Royalty Judges establishing rates and terms for a successor period or the exhaustion of all rehearings or appeals of such determination, if any, return any excess amounts previously paid to the extent necessary to comply with the final determination of royalty rates. Any under- payment of royalties by a copyright user shall be paid to the entity designated by the Copyright Royalty Judges within the same period. (B) OTHER CASES.—In cases where rates and terms have not, prior to the inception of an activity, been established for that particular activity under the relevant license, such rates and terms shall be retroactive to the inception of activity under the relevant li- cense covered by such rates and terms. In other cases where rates and terms do not ex- pire on a specified date, successor rates and terms shall take effect on the first day of the second month that begins after the pub- lication of the determination of the Copy- right Royalty Judges in the Federal Reg- ister, except as otherwise provided in this title, or by the Copyright Royalty Judges, or as agreed by the participants in a proceeding that would be bound by the rates and terms. Except as otherwise provided in this title, the rates and terms, to the extent applica- ble, shall remain in effect until such suc- cessor rates and terms become effective. (C) OBLIGATION TO MAKE PAYMENTS.— (i) The pendency of an appeal under this subsection shall not relieve persons obli- gated to make royalty payments under section 111, 112, 114, 115, 116, 118, 119, or 1003, who would be affected by the deter- mination on appeal, from— (I) providing the applicable statements of account and reports of use; and (II) paying the royalties required under the relevant determination or regula- tions. (ii) Notwithstanding clause (i), whenever royalties described in clause (i) are paid to a person other than the Copyright Office, the entity designated by the Copyright Royalty Judges to which such royalties are paid by the copyright user (and any successor thereto) shall, within 60 days after the final resolution of the appeal, re- turn any excess amounts previously paid (and interest thereon, if ordered pursuant to paragraph (3)) to the extent necessary to comply with the final determination of royalty rates on appeal. Any under- payment of royalties resulting from an ap- peal (and interest thereon, if ordered pur- suant to paragraph (3)) shall be paid within the same period. (3) JURISDICTION OF COURT.—Section 706 of title 5 shall apply with respect to review by the court of appeals under this subsection. If the court modifies or vacates a determination of the Copyright Royalty Judges, the court may enter its own determination with respect to the amount or distribution of royalty fees and costs, and order the repayment of any ex- cess fees, the payment of any underpaid fees, and the payment of interest pertaining respec- tively thereto, in accordance with its final judgment. The court may also vacate the de- termination of the Copyright Royalty Judges and remand the case to the Copyright Royalty Judges for further proceedings in accordance with subsection (a). (e) ADMINISTRATIVE MATTERS.— (1) DEDUCTION OF COSTS OF LIBRARY OF CON- GRESS AND COPYRIGHT OFFICE FROM FILING FEES.— (A) DEDUCTION FROM FILING FEES.—The Li- brarian of Congress may, to the extent not otherwise provided under this title, deduct from the filing fees collected under sub- section (b) for a particular proceeding under this chapter the reasonable costs incurred by the Librarian of Congress, the Copyright Of- fice, and the Copyright Royalty Judges in conducting that proceeding, other than the salaries of the Copyright Royalty Judges and the staff members appointed under sec- tion 802(b). (B) AUTHORIZATION OF APPROPRIATIONS.— There are authorized to be appropriated such sums as may be necessary to pay the costs incurred under this chapter not covered by the filing fees collected under subsection (b). All funds made available pursuant to this subparagraph shall remain available until expended. (2) POSITIONS REQUIRED FOR ADMINISTRATION OF COMPULSORY LICENSING.—Section 307 of the Legislative Branch Appropriations Act, 1994, shall not apply to employee positions in the Library of Congress that are required to be filled in order to carry out section 111, 112, 114, 115, 116, 118, or 119 or chapter 10. (Added Pub. L. 108–419, § 3(a), Nov. 30, 2004, 118 Stat. 2348; amended Pub. L. 108–447, div. J, title IX [title I, § 112], Dec. 8, 2004, 118 Stat. 3409; Pub. L. 109–303, § 3(5)–(11), Oct. 6, 2006, 120 Stat. 1479, 1481; Pub. L. 111–295, § 5(b), Dec. 9, 2010, 124 Stat. 3181; Pub. L. 115–264, title I, § 103(g)(3), Oct. 11, 2018, 132 Stat. 3725; Pub. L. 116–94, div. P, title XIV, § 1405(a)(2), Dec. 20, 2019, 133 Stat. 3208.) Page 200 TITLE 17—COPYRIGHTS § 804 Editorial Notes REFERENCES IN TEXT The effective date of the Copyright Royalty and Dis- tribution Reform Act of 2004, referred to in subsecs. (a)(1) and (b)(6)(B), (C)(viii), is the effective date of Pub. L. 108–419, which is 6 months after Nov. 30, 2004, subject to transition provisions, see section 6 of Pub. L. 108–419, set out as an Effective Date; Transition Provisions note under section 801 of this title. The enactment of the Copyright Royalty and Dis- tribution Reform Act of 2004 and such date of enact- ment, referred to in subsec. (b)(6)(A), (B), probably mean the date of enactment of Pub. L. 108–419, which was approved Nov. 30, 2004. Section 307 of the Legislative Branch Appropriations Act, 1994, referred to in subsec. (e)(2), is section 307 of Pub. L. 103–69, which was formerly set out as a note under section 60–1 of Title 2, The Congress. PRIOR PROVISIONS A prior section 803, Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2597, § 804; Pub. L. 100–568, § 11(2), Oct. 31, 1988, 102 Stat. 2860; Pub. L. 100–667, title II, § 202(5), Nov. 16, 1988, 102 Stat. 3958; Pub. L. 101–318, § 3(c), July 3, 1990, 104 Stat. 288; Pub. L. 102–563, § 3(a)(2), Oct. 28, 1992, 106 Stat. 4248; renumbered § 803 and amended Pub. L. 103–198, § 2(d), Dec. 17, 1993, 107 Stat. 2307; Pub. L. 104–39, § 5(d)(5)–(7), Nov. 1, 1995, 109 Stat. 349; Pub. L. 105–80, § 12(a)(20), Nov. 13, 1997, 111 Stat. 1535; Pub. L. 105–304, title IV, § 405(e)(5), (6), Oct. 28, 1998, 112 Stat. 2902, related to institution and conclusion of pro- ceedings of copyright arbitration royalty panels, prior to the general amendment of this chapter by Pub. L. 108–419. Another prior section 803, Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2596, related to procedures of the Copyright Royalty Tribunal, prior to repeal by Pub. L. 103–198, § 2(c), Dec. 17, 1993, 107 Stat. 2307. AMENDMENTS 2019—Subsec. (e)(1)(A). Pub. L. 116–94 struck out ‘‘3’’ before ‘‘staff members’’. 2018—Subsec. (c)(2)(E)(i)(II). Pub. L. 115–264 struck out ‘‘or 114(f)(2)(C)’’ after ‘‘under section 114(f)(1)(C)’’ and substituted ‘‘114(f)(3)(B)’’ for ‘‘114(f)(4)(B)’’. 2010—Subsec. (b)(6)(A). Pub. L. 111–295 substituted ‘‘All regulations issued by the Copyright Royalty Judges are subject to the approval of the Librarian of Congress and are subject to judicial review pursuant to chapter 7 of title 5, except as set forth in subsection (d).’’ for ‘‘All regulations issued by the Copyright Roy- alty Judges are subject to the approval of the Librarian of Congress.’’ 2006—Subsec. (a)(1). Pub. L. 109–303, § 3(5), substituted ‘‘The Copyright Royalty Judges shall act in accordance with this title, and to the extent not inconsistent with this title, in accordance with subchapter II of chapter 5 of title 5, in carrying out the purposes set forth in section 801. The Copyright’’ for ‘‘The Copyright’’ and inserted ‘‘copyright arbitration royalty panels (to the extent those determinations are not inconsistent with a decision of the Librarian of Congress or the Register of Copyrights),’’ after ‘‘Congress, the Register of Copy- rights,’’. Subsec. (b)(1)(A)(i)(V). Pub. L. 109–303, § 3(6)(A), sub- stituted ‘‘the publication of notice requirement shall not apply in the case of’’ for ‘‘in the case of’’ and struck out ‘‘, such notice may not be published.’’ at end. Subsec. (b)(2). Pub. L. 109–303, § 3(6)(B), struck out ‘‘, together with a filing fee of $150’’ before semicolon at end of subpar. (A) and added subpar. (D). Subsec. (b)(3)(A). Pub. L. 109–303, § 3(6)(C), substituted ‘‘Commencement of proceedings’’ for ‘‘In general’’ in heading, designated existing provisions as cl. (i), in- serted cl. (i) heading, and added cl. (ii). Subsec. (b)(4)(A). Pub. L. 109–303, § 3(6)(D), struck out last sentence which read as follows: ‘‘The participant asserting the claim shall not be required to pay the fil- ing fee under paragraph (2).’’ Subsec. (b)(6)(C)(i). Pub. L. 109–303, § 3(6)(E)(i), in- serted ‘‘and written rebuttal statements’’ after ‘‘writ- ten direct statements’’ and substituted ‘‘which, in the case of written direct statements, may’’ for ‘‘which may’’ and ‘‘clause (iv)’’ for ‘‘clause (iii)’’. Subsec. (b)(6)(C)(ii)(I). Pub. L. 109–303, § 3(6)(E)(ii), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: ‘‘Following the submission to the Copyright Royalty Judges of written direct state- ments by the participants in a proceeding under para- graph (2), the judges shall meet with the participants for the purpose of setting a schedule for conducting and completing discovery. Such schedule shall be deter- mined by the Copyright Royalty Judges.’’ Subsec. (b)(6)(C)(iv). Pub. L. 109–303, § 3(6)(E)(iii), amended cl. (iv) generally. Prior to amendment, cl. (iv) read as follows: ‘‘Discovery in such proceedings shall be permitted for a period of 60 days, except for discovery ordered by the Copyright Royalty Judges in connection with the resolution of motions, orders, and disputes pending at the end of such period.’’ Subsec. (b)(6)(C)(x). Pub. L. 109–303, § 3(6)(E)(iv), amended cl. (x) generally. Prior to amendment, cl. (x) read as follows: ‘‘The Copyright Royalty Judges shall order a settlement conference among the participants in the proceeding to facilitate the presentation of of- fers of settlement among the participants. The settle- ment conference shall be held during a 21-day period following the end of the discovery period and shall take place outside the presence of the Copyright Royalty Judges.’’ Subsec. (c)(2)(B). Pub. L. 109–303, § 3(7), struck out ‘‘concerning rates and terms’’ before period at end. Subsec. (c)(4). Pub. L. 109–303, § 3(8), struck out ‘‘, with the approval of the Register of Copyrights,’’ be- fore ‘‘issue an amendment’’. Subsec. (c)(7). Pub. L. 109–303, § 3(9), substituted ‘‘of the Copyright’’ for ‘‘of Copyright’’. Subsec. (d)(2)(C)(i)(I). Pub. L. 109–303, § 3(10), sub- stituted ‘‘applicable statements of account and reports of use’’ for ‘‘statements of account and any report of use’’. Subsec. (d)(3). Pub. L. 109–303, § 3(11), substituted ‘‘Section 706 of title 5 shall apply with respect to re- view by the court of appeals under this subsection. If the court modifies’’ for ‘‘If the court, pursuant to sec- tion 706 of title 5, modifies’’. 2004—Subsec. (b)(1)(A)(i)(V). Pub. L. 108–447 inserted ‘‘, except that in the case of proceedings under section 111 that are scheduled to commence in 2005, such notice may not be published.’’ before period at end. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2019 AMENDMENT Amendment by Pub. L. 116–94 effective with respect to fiscal year 2020 and each fiscal year thereafter, see section 1405(b) of Pub. L. 116–94, set out as a note under section 802 of this title. EFFECTIVE DATE OF 2006 AMENDMENT Amendment by Pub. L. 109–303 effective as if included in the Copyright Royalty and Distribution Reform Act of 2004, Pub. L. 108–419, see section 6 of Pub. L. 109–303, set out as a note under section 111 of this title. § 804. Institution of proceedings (a) FILING OF PETITION.—With respect to pro- ceedings referred to in paragraphs (1) and (2) of section 801(b) concerning the determination or adjustment of royalty rates as provided in sec- tions 111, 112, 114, 115, 116, 118, 119, and 1004, dur- ing the calendar years specified in the schedule set forth in subsection (b), any owner or user of a copyrighted work whose royalty rates are specified by this title, or are established under this chapter before or after the enactment of the