17 U.S.C. § 802 — Copyright Royalty Judgeships; staff

Page 192 TITLE 17—COPYRIGHTS § 802 Act had not been enacted, and shall continue in effect until modified under title 17, United States Code, as amended by this Act. Such petitions filed and vol- untary agreements entered into shall remain in effect as if this Act had not been enacted. For purposes of this paragraph, the Librarian of Congress may deter- mine whether a proceeding has commenced. The Li- brarian of Congress may terminate any proceeding commenced before the effective date provided in sub- section (a) pursuant to chapter 8 of title 17, United States Code, and any proceeding so terminated shall become null and void. In such cases, the Copyright Royalty Judges may initiate a new proceeding in ac- cordance with regulations adopted pursuant to sec- tion 803(b)(6) of title 17, United States Code. ‘‘(2) CERTAIN ROYALTY RATE PROCEEDINGS.—Notwith- standing paragraph (1), the amendments made by this Act shall not affect proceedings to determine royalty rates pursuant to section 119(c) of title 17, United States Code, that are commenced before January 31, 2006. ‘‘(3) PENDING PROCEEDINGS.—Notwithstanding para- graph (1), any proceedings to establish or adjust rates and terms for the statutory licenses under section [former] 114(f)(2) or 112(e) of title 17, United States Code, for a statutory period commencing on or after January 1, 2005, shall be terminated upon the date of enactment of this Act and shall be null and void. The rates and terms in effect under section [former] 114(f)(2) or 112(e) of title 17, United States Code, on December 31, 2004, for new subscription services, eligi- ble nonsubscription services, and services exempt under section 114(d)(1)(C)(iv) of such title, and the rates and terms published in the Federal Register under the authority of the Small Webcaster Settle- ment Act of 2002 (17 U.S.C. 114 note; Public Law 107–321) (including the amendments made by that Act) for the years 2003 through 2004, as well as any notice and recordkeeping provisions adopted pursu- ant thereto, shall remain in effect until the later of the first applicable effective date for successor terms and rates specified in section 804(b) (2) or (3)(A) of title 17, United States Code, or such later date as the parties may agree or the Copyright Royalty Judges may establish. For the period commencing January 1, 2005, an eligible small webcaster or a noncommercial webcaster, as defined in the regulations published by the Register of Copyrights pursuant to the Small Webcaster Settlement Act of 2002 (17 U.S.C. 114 note; Public Law 107–321) (including the amendments made by that Act) [amending section 114 of this title and enacting provisions set out as notes under sections 101 and 114 of this title], may elect to be subject to the rates and terms published in those regulations by complying with the procedures governing the elec- tion process set forth in those regulations not later than the first date on which the webcaster would be obligated to make a royalty payment for such period. Until successor terms and rates have been established for the period commencing January 1, 2006, licensees shall continue to make royalty payments at the rates and on the terms previously in effect, subject to ret- roactive adjustment when successor rates and terms for such services are established. ‘‘(4) INTERIM PROCEEDINGS.—Notwithstanding sub- section (a), as soon as practicable after the date of enactment of this Act, the Copyright Royalty Judges or interim Copyright Royalty Judges shall publish the notice described in section 803(b)(1)(A) of title 17, United States Code, as amended by this Act, to ini- tiate a proceeding to establish or adjust rates and terms for the statutory licenses under section [former] 114(f)(2) or 112(e) of title 17, United States Code, for new subscription services and eligible non- subscription services for the period commencing Jan- uary 1, 2006. The Copyright Royalty Judges or In- terim Copyright Royalty Judges are authorized to cause that proceeding to take place as provided in subsection (b) of section 803 of that title within the time periods set forth in that subsection. Notwith- standing section 803(c)(1) of that title, the Copyright Royalty Judges shall not be required to issue their determination in that proceeding before the expira- tion of the statutory rates and terms in effect on De- cember 31, 2004. ‘‘(c) EXISTING APPROPRIATIONS.—Any funds made available in an appropriations Act to carry out chapter 8 of title 17, United States Code, shall be available to the extent necessary to carry out this section.’’ § 802. Copyright Royalty Judgeships; staff (a) QUALIFICATIONS OF COPYRIGHT ROYALTY JUDGES.— (1) IN GENERAL.—Each Copyright Royalty Judge shall be an attorney who has at least 7 years of legal experience. The Chief Copyright Royalty Judge shall have at least 5 years of experience in adjudications, arbitrations, or court trials. Of the other 2 Copyright Royalty Judges, 1 shall have significant knowledge of copyright law, and the other shall have sig- nificant knowledge of economics. An indi- vidual may serve as a Copyright Royalty Judge only if the individual is free of any fi- nancial conflict of interest under subsection (h). (2) DEFINITION.—In this subsection, the term ‘‘adjudication’’ has the meaning given that term in section 551 of title 5, but does not in- clude mediation. (b) STAFF.—The Chief Copyright Royalty Judge shall hire full-time staff members to as- sist the Copyright Royalty Judges in performing their functions. (c) TERMS.—The individual first appointed as the Chief Copyright Royalty Judge shall be ap- pointed to a term of 6 years, and of the remain- ing individuals first appointed as Copyright Royalty Judges, 1 shall be appointed to a term of 4 years, and the other shall be appointed to a term of 2 years. Thereafter, the terms of suc- ceeding Copyright Royalty Judges shall each be 6 years. An individual serving as a Copyright Royalty Judge may be reappointed to subse- quent terms. The term of a Copyright Royalty Judge shall begin when the term of the prede- cessor of that Copyright Royalty Judge ends. When the term of office of a Copyright Royalty Judge ends, the individual serving that term may continue to serve until a successor is se- lected. (d) VACANCIES OR INCAPACITY.— (1) VACANCIES.—If a vacancy should occur in the position of Copyright Royalty Judge, the Librarian of Congress shall act expeditiously to fill the vacancy, and may appoint an in- terim Copyright Royalty Judge to serve until another Copyright Royalty Judge is appointed under this section. An individual appointed to fill the vacancy occurring before the expira- tion of the term for which the predecessor of that individual was appointed shall be ap- pointed for the remainder of that term. (2) INCAPACITY.—In the case in which a Copy- right Royalty Judge is temporarily unable to perform his or her duties, the Librarian of Congress may appoint an interim Copyright Royalty Judge to perform such duties during the period of such incapacity. (e) COMPENSATION.— (1) JUDGES.—The Chief Copyright Royalty Judge shall receive compensation at the rate Page 193 TITLE 17—COPYRIGHTS § 802 of basic pay payable for level AL–1 for admin- istrative law judges pursuant to section 5372(b) of title 5, and each of the other two Copyright Royalty Judges shall receive compensation at the rate of basic pay payable for level AL–2 for administrative law judges pursuant to such section. The compensation of the Copyright Royalty Judges shall not be subject to any regulations adopted by the Office of Personnel Management pursuant to its authority under section 5376(b)(1) of title 5. (2) STAFF MEMBERS.—Staff members ap- pointed under subsection (b) shall be com- pensated at a rate not more than the basic rate of pay payable for level 10 of GS–15 of the General Schedule. (3) LOCALITY PAY.—All rates of pay referred to under this subsection shall include locality pay. (f) INDEPENDENCE OF COPYRIGHT ROYALTY JUDGE.— (1) IN MAKING DETERMINATIONS.— (A) IN GENERAL.—(i) Subject to subpara- graph (B) and clause (ii) of this subpara- graph, the Copyright Royalty Judges shall have full independence in making deter- minations concerning adjustments and de- terminations of copyright royalty rates and terms, the distribution of copyright royal- ties, the acceptance or rejection of royalty claims, rate adjustment petitions, and peti- tions to participate, and in issuing other rul- ings under this title, except that the Copy- right Royalty Judges may consult with the Register of Copyrights on any matter other than a question of fact. (ii) One or more Copyright Royalty Judges may, or by motion to the Copyright Royalty Judges, any participant in a proceeding may, request from the Register of Copy- rights an interpretation of any material questions of substantive law that relate to the construction of provisions of this title and arise in the course of the proceeding. Any request for a written interpretation shall be in writing and on the record, and reasonable provision shall be made to permit participants in the proceeding to comment on the material questions of substantive law in a manner that minimizes duplication and delay. Except as provided in subparagraph (B), the Register of Copyrights shall deliver to the Copyright Royalty Judges a written response within 14 days after the receipt of all briefs and comments from the partici- pants. The Copyright Royalty Judges shall apply the legal interpretation embodied in the response of the Register of Copyrights if it is timely delivered, and the response shall be included in the record that accompanies the final determination. The authority under this clause shall not be construed to authorize the Register of Copyrights to pro- vide an interpretation of questions of proce- dure before the Copyright Royalty Judges, the ultimate adjustments and determina- tions of copyright royalty rates and terms, the ultimate distribution of copyright royal- ties, or the acceptance or rejection of roy- alty claims, rate adjustment petitions, or petitions to participate in a proceeding. (B) NOVEL QUESTIONS.—(i) In any case in which a novel material question of sub- stantive law concerning an interpretation of those provisions of this title that are the subject of the proceeding is presented, the Copyright Royalty Judges shall request a de- cision of the Register of Copyrights, in writ- ing, to resolve such novel question. Reason- able provision shall be made for comment on such request by the participants in the pro- ceeding, in such a way as to minimize dupli- cation and delay. The Register of Copyrights shall transmit his or her decision to the Copyright Royalty Judges within 30 days after the Register of Copyrights receives all of the briefs or comments of the partici- pants. Such decision shall be in writing and included by the Copyright Royalty Judges in the record that accompanies their final de- termination. If such a decision is timely de- livered to the Copyright Royalty Judges, the Copyright Royalty Judges shall apply the legal determinations embodied in the deci- sion of the Register of Copyrights in resolv- ing material questions of substantive law. (ii) In clause (i), a ‘‘novel question of law’’ is a question of law that has not been deter- mined in prior decisions, determinations, and rulings described in section 803(a). (C) CONSULTATION.—Notwithstanding the provisions of subparagraph (A), the Copy- right Royalty Judges shall consult with the Register of Copyrights with respect to any determination or ruling that would require that any act be performed by the Copyright Office, and any such determination or ruling shall not be binding upon the Register of Copyrights. (D) REVIEW OF LEGAL CONCLUSIONS BY THE REGISTER OF COPYRIGHTS.—The Register of Copyrights may review for legal error the resolution by the Copyright Royalty Judges of a material question of substantive law under this title that underlies or is con- tained in a final determination of the Copy- right Royalty Judges. If the Register of Copyrights concludes, after taking into con- sideration the views of the participants in the proceeding, that any resolution reached by the Copyright Royalty Judges was in ma- terial error, the Register of Copyrights shall issue a written decision correcting such legal error, which shall be made part of the record of the proceeding. The Register of Copyrights shall issue such written decision not later than 60 days after the date on which the final determination by the Copy- right Royalty Judges is issued. Additionally, the Register of Copyrights shall cause to be published in the Federal Register such writ- ten decision, together with a specific identi- fication of the legal conclusion of the Copy- right Royalty Judges that is determined to be erroneous. As to conclusions of sub- stantive law involving an interpretation of the statutory provisions of this title, the de- cision of the Register of Copyrights shall be binding as precedent upon the Copyright Royalty Judges in subsequent proceedings under this chapter. When a decision has been rendered pursuant to this subparagraph, the 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.—