37 C.F.R. PART 351—PROCEEDINGS
Title 37 - Patents, Trademarks, and Copyrights
Authority: 17 U.S.C. 803, 805.
Source: 70 FR 30905, May 31, 2005, unless otherwise noted.
(a) Notice of commencement; solicitation of petitions to participate. All proceedings before the Copyright Royalty Board to make determinations and adjustments of reasonable terms and rates of royalty payments, and to authorize the distribution of royalty fees, shall be initiated by publication in the (b) Petitions to participate—(1) Royalty rate proceedings. (i) Single petition. Each petition to participate filed in a royalty rate proceeding must include: (A) The petitioner's full name, address, telephone number, facsimile number (if any), and e-mail address (if any); (B) A description of the petitioner's significant interest in the subject matter of the proceeding; and (C) A statement of the petitioner's intention to fully participate in the royalty rate proceeding; (ii) Joint petition. Petitioners with similar interests may, in lieu of filing individual petitions, file a single petition. Each joint petition must include: (A) The full name, address, telephone number, facsimile number (if any), and e-mail address (if any) of the person filing the petition; (B) A list identifying all participants to the joint petition; (C) A description of the participants' significant interest in the subject matter of the proceeding; (D) A statement of the participants' intention to fully participate in the royalty rate proceeding; and (E) If the joint petition is filed by counsel or a representative of one or more of the participants that are named in the joint petition, a statement from such counsel or representative certifying that, as of the date of submission of the joint petition, such counsel or representative has the authority and consent of the participants to represent them in the royalty rate proceeding. (2) Distribution proceedings. (i) Single petition. Each petition to participate filed in a royalty distribution proceeding must include: (A) The petitioner's full name, address, telephone number, facsimile number (if any), and e-mail address (if any); (B) In a cable or satellite royalty distribution proceeding, identification of whether the petition covers a Phase I proceeding (the initial part of a distribution proceeding where royalties are divided among the categories or groups of copyright owners), a Phase II proceeding (where the money allotted to each category is subdivided among the various copyright owners within that category), or both; (C) A description of the petitioner's significant interest in the subject matter of the proceeding; and (D) A statement of the petitioner's intention to fully participate in the royalty distribution proceeding; (ii) Joint petition. Petitioners with similar interests may, in lieu of filing individual petitions, file a single petition. Each joint petition must include: (A) The full name, address, telephone number, facsimile number (if any), and e-mail address (if any) of the person filing the petition; (B) A list identifying all participants to the joint petition; (C) In a cable or satellite royalty distribution proceeding, identification of whether the petition covers a Phase I proceeding (the initial part of a distribution proceeding where royalties are divided among the categories or groups of copyright owners), a Phase II proceeding (where the money allotted to each category is subdivided among the various copyright owners within that category), or both; (D) A description of the participants' significant interest in the subject matter of the proceeding; (E) A statement of the participants' intention to fully participate in the royalty distribution proceeding; and (F) If the joint petition is filed by counsel or a representative of one or more of the participants that are named in the joint petition, a statement from such counsel or representative certifying that, as of the date of submission of the joint petition, such counsel or representative has the authority and consent of the participants to represent them in the royalty distribution proceeding. (3) Filing deadline. A petition to participate shall be filed by no later than 30 days after the publication of the notice of commencement of a proceeding, subject to the qualified exception set forth in paragraph (d) of this section. (4) Filing fee. A petition to participate must be accompanied with a filing fee of $150 or the petition will be rejected. Payment shall be made to the Copyright Royalty Board. If a check is subsequently dishonored, the petition will be rejected. If the petitioner believes that the contested amount of that petitioner's claim will be less than $10,000, petitioner shall so state in the petition to participate and should not include payment of the $150 filing fee. If it becomes apparent during the course of the proceedings that the contested amount of the claim is more than $10,000, the Board will require payment of the filing fee at such time. (c) Acceptance and rejection of petitions to participate. A petition to participate will be deemed to have been allowed by the Copyright Royalty Board unless the Board has determined that the petitioner lacks a significant interest in the proceeding or that the petition is otherwise invalid. (d) Late petitions to participate. The Copyright Royalty Board may, for substantial good cause shown, and if there is no prejudice to the participants that have already filed petitions, accept late petitions to participate at any time up to the date that is 90 days before the date on which participants in the proceeding are to file their written direct statements. However, 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. (a) Commencement; duration. Within thirty-five business days from the date a proceeding is initiated by notice in the (b) Settlement—(1) Distribution proceedings. To the extent that a settlement or partial settlement has been reached in a distribution proceeding, that agreement will provide the basis for a full or partial distribution. (2) Royalty rate proceedings. If, in a proceeding to determine statutory terms and rates, the participating parties report that a settlement has been reached by some or all of the parties, the Copyright Royalty Board will publish the settlement in the (a) Declaration of controversy. If a settlement has not been reached within the voluntary negotiation period, the Copyright Royalty Board will issue an order declaring that further proceedings are necessary. The procedures set forth at §§351.4, et seq., for formal hearings will apply, unless the abbreviated procedures set forth in paragraphs (b) and (c) of this section are invoked by the Copyright Royalty Board. (b) Small claims in distribution proceedings—(1) General. If, in a distribution proceeding, the contested amount of a claim is $10,000 or less, the Copyright Royalty Board shall decide the controversy on the basis of the filing of the written direct statement by each participant (or participant group filing a joint petition), the response by any opposing participant, and one optional reply by a participant who has filed a written direct statement. (2) Bad faith inflation of claim. If the Copyright Royalty Board determines that a participant asserts in bad faith an amount in controversy in excess of $10,000 for the purpose of avoiding a determination under the procedure set forth in paragraph (b)(1) of this section, the Copyright Royalty Board 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. (c) Paper proceedings—(1) Where used. The procedure under this paragraph (c) will 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 writing to the procedure. In the absence of an agreement in writing among all participants, this procedure may be applied by the Board, in its discretion, either on the motion of a party or by the Copyright Royalty Board sua sponte. A party requesting use of paper proceedings, in the absence of agreement among the other participants, should include in the motion a showing that the use of paper proceedings in the particular case would meet any due process or other legal requirements. (2) Course of procedure. Paper proceedings will be decided on the basis of the filing of the written direct statement by the participant (or participant group filing a joint petition), the response by any opposing participant, and one optional reply by a participant who has filed a written direct statement. Before a decision becomes final in a case utilizing paper proceedings, the Copyright Royalty Board will offer the participants the opportunity to comment on the decision. (a) Required filing; deadline. All parties who have filed a petition to participate in the hearing must file a written direct statement. The deadline for the filing of the written direct statement will be specified by the Copyright Royalty Board, not earlier than 4 months, nor later than 5 months, after the end of the voluntary negotiation period set forth in §351.2. (b) Content required—(1) Testimony. The written direct statement shall include all testimony, including each witness's background and qualifications, along with all the exhibits to be presented in the direct statement. (2) Designated testimony. Each participating party may designate a portion of past records, including records of the Copyright Royalty Tribunal or Copyright Arbitration Royalty Panels, that it wants included in its direct statement. If a party intends to rely on any part of the testimony of a witness in a prior proceeding, the complete testimony of that witness (i.e., direct, cross and redirect examination) must be designated. The party submitting such designated testimony shall include a copy of that testimony with the written direct statement. (3) Claim. In the case of a royalty distribution proceeding, each party must state in the written direct statement its percentage or dollar claim to the fund. In the case of a rate (or rates) proceeding, each party must state its requested rate. No party will be precluded from revising its claim or its requested rate at any time during the proceeding up to, and including, the filing of the proposed findings of fact and conclusions of law. (4) Material questions. Under a separate heading, the written direct statement shall set forth any “material question of substantive law” that is expected to arise in the course of the proceeding and might warrant certification to the Register of Copyrights under 17 U.S.C. 802(f). Cf., 37 CFR Part 354. (c) Amended written direct statements. A participant in a proceeding may amend a written direct statement based on new information received during the discovery process, within 15 days after the end of the discovery period. An amended written direct statement must explain how it differs from the written direct statement it will amend and must demonstrate that the amendment is based on new information received during the discovery process. The participant amending its written direct statement may file either the amended portions of the written direct statement or submit complete new copies at its option. (a) Schedule. Following the submission to the Copyright Royalty Board of written direct statements by the participants in a royalty rate proceeding, and after conferring with the participants, the Copyright Royalty Board will issue a discovery schedule. Discovery shall be permitted for a period of 60 days, except for discovery ordered by the Copyright Royalty Board in connection with the resolution of motions, orders, and disputes pending at the end of such period. The discovery schedule will include a date for the post-discovery settlement conference addressed in §351.7. (b) Document production. A participant in a royalty rate proceeding may request of an opposing participant nonprivileged documents that are directly related to the written direct statement or written rebuttal statement of that participant. Any objection to such a request shall be resolved by a motion or request to compel production. The motion must show how the disputed document or documents would actually be relevant to the moving party's case and that the information sought is not readily available to the moving participant in a form or format that would be substantially less burdensome to produce. The motion must also include a statement that the parties had conferred and were unable to resolve the matter. (c) Depositions and interrogatories. In a proceeding to determine royalty rates, the participants entitled to receive royalties shall collectively be permitted to take no more than 10 depositions and secure responses to no more than 25 interrogatories. Similarly, the participants obligated to pay royalties shall collectively be permitted to take no more than 10 depositions and secure responses to no more than 25 interrogatories. In distribution proceedings, the Board shall designate a 45-day period following the filing of written direct and rebuttal statements within which parties may request of an opposing party nonprivileged underlying documents related to the written exhibits and testimony. A post-discovery settlement conference will be held among the participants, within 21-days after the close of discovery, outside of the presence of the Copyright Royalty Board. Immediately after this conference the participants shall file with the Copyright Royalty Board a Joint Settlement Conference Report indicating the extent to which the participants have reached a settlement. In the absence of a complete settlement in a proceeding not subject to the abbreviated procedures set forth in §§351.3(b) and (c), a hearing will be scheduled expeditiously so as to allow the Board to conduct hearings and issue its final determination in the proceeding within the time allowed by the Copyright Act. Prior to the hearing, the Board may conduct a prehearing conference to assist in setting the order of presentation of evidence and the appearance of witnesses at the hearing. (a) By panels. Hearings will be conducted by all Copyright Royalty Judges sitting as a panel. (b) Role of Chief Judge. The Chief Copyright Royalty Judge may preside over such collateral and administrative proceedings, and over proceedings under section 803(b)(1) through (5) of the Copyright Act, as the Chief Judge considers appropriate. Subject to the vote of the Copyright Royalty Judges, the Chief Judge shall have the responsibility for: (1) Setting the order of presentation of evidence and appearance of witnesses; (2) Administering oaths and affirmations to all witnesses; (3) Announcing the Board's ruling on objections and motions and all rulings with respect to introducing or excluding documentary or other evidence. In all cases, whether there are an even number of Judges sitting at the hearing, with the exception of a hearing pursuant to 17 U.S.C. 803(a)(2), it takes a majority vote to grant a motion or sustain an objection. A tie vote will result in the denial of a motion or the overruling of the objection; (4) Regulating the course of the proceedings and the decorum of the parties and their counsel, and insuring that the proceedings are fair and impartial; and (5) Announcing the schedule of subsequent proceedings. (c) Opening statements. In each distribution or rate proceeding, each party may present its opening statement summarizing its written direct statement. (a) Admissibility. All evidence that is relevant and not unduly repetitious or privileged, shall be admissible. Written testimony and exhibits will be received into the record, except where the Board sustains an objection. No evidence, including exhibits, may be submitted without a sponsoring witness, except matters of which the Board may take official notice. (b) Examination of witnesses. All witnesses shall be required to take an oath or affirmation before testifying. Parties are entitled to conduct direct examination (consisting of the testimony of the witness in the written direct statement and an oral summary of that testimony); cross-examination (limited to matters raised on direct examination); and redirect examination (limited to matters raised on cross-examination). The Board may limit the number of witnesses or limit questioning to avoid cumulative testimony. (c) Documentary evidence—(1) Submission as exhibits. Evidence that is submitted in the form of documents or detailed data and information shall be presented as exhibits. (2) Separation of irrelevant portions. Relevant and material matter embraced in a document containing other matter not material or relevant or not intended as evidence must be plainly designated as the matter offered in evidence, and the immaterial or irrelevant parts shall be marked clearly so as to show they are not intended as evidence. (3) Bulky exhibits. In cases where a document in which material and relevant matter occurs is of such bulk that it would unnecessarily encumber the record, it may be marked for identification and the relevant and material parts, once properly authenticated, may be read into the record. In such instances, a true copy of the material and relevant matter may be presented in extract form, and submitted as evidence. (d) Copies. Anyone presenting documents as evidence must present copies to all other participants in the proceedings, or their attorneys, and afford them an opportunity to examine the documents in their entirety and offer into evidence any other portion that may be considered material and relevant. However, if a publicly available document issued by a governmental entity (such as an official report, decision, opinion, or published scientific or economic data) is offered in evidence, it may be offered instead by identifying the document and signaling the relevant parts. (e) Introduction of studies and analyses. If studies or analyses are offered in evidence, they shall state clearly the study plan, all relevant assumptions, the techniques of data collection, and the techniques of estimation and testing. The facts and judgments upon which conclusions are based shall be stated clearly, together with any alternative courses of action considered. If requested, tabulations of input data shall be made available to the Board. (1) Statistical studies. Statistical studies offered in evidence shall be accompanied by a summary of their assumptions, their study plans, and their procedures. Supplementary details shall be included in appendices. For each of the following types of statistical studies the following should be furnished: (i) Sample surveys. (A) A clear description of the survey design, the definition of the universe under consideration, the sampling frame and units, the validity and confidence limits on major estimates; and (B) An explanation of the method of selecting the sample and of the characteristics which were measured and counted. (ii) Econometric investigations. (A) A complete description of the econometric model, the reasons for each assumption, and the reasons for the statistical specification; (B) A clear statement of how any changes in the assumptions might affect the final result; and (C) Any available alternative studies that employ alternative models and variables, if requested. (iii) Experimental analysis. (A) A complete description of the design, the controlled conditions, and the implementation of controls; and (B) A complete description of the methods of observation and adjustment of observation. (iv) Studies involving statistical methodology. (A) The formula used for statistical estimates; (B) The standard error for each component; (C) The test statistics, the description of how the tests were conducted, related computations, computer programs, and all final results; and (D) Summarized descriptions of input data and, if requested, the input data themselves. (f) Objections; offers of proof. Parties are entitled to raise objections to evidence on any proper ground during the course of the hearing, including an objection that an opposing party has not furnished unprivileged underlying documents. If the Board rejects or excludes testimony, the participant proffering the testimony may submit an offer of proof for the record. In the case of documentary or written evidence, a copy of such evidence shall be marked for identification and shall constitute the offer of proof. (g) New documents for use in cross-examination. Documents that have not been identified and exchanged in advance may be shown to a witness on cross-examination. However, copies of such documents must be distributed to the Board and to the other participants before being shown to the witness at the time of cross-examination, unless the Board directs otherwise. If the document is not, or will not be, supported by a witness for the cross-examining party, that document can be used solely to impeach the witness's direct testimony. Written rebuttal statements shall be filed at a time designated by the Copyright Royalty Board upon conclusion of the hearing of the direct case, in the same form and manner as the written direct statement, except that the claim or the requested rate shall not have to be included if it has not changed from the written direct statement. Further proceedings at the rebuttal stage shall follow the schedule ordered by the Board. (a) A participant may, in the course of a royalty rate hearing, request of an opposing participant or witness other relevant information. The request may be made by means of written motion or oral motion on the record. The Copyright Royalty Board will allow such request only if they determine that, absent the discovery sought, their ability to achieve a just resolution of the proceeding would be substantially impaired. (b) In determining whether discovery will be granted under this section, the Copyright Royalty Board will consider— (1) Whether the burden or expense of producing the requested information or materials outweighs the likely benefit, taking into account the needs and resources of the participants, the importance of the issues at stake, and the probative value of the requested information or materials in resolving such issues; (2) Whether the requested information or materials would be unreasonably cumulative or duplicative, or are obtainable from another source that is more convenient, less burdensome, or less expensive; and (3) Whether the participant seeking the discovery had an ample opportunity by previous discovery in the proceeding or by other means to obtain the information sought. (c) This section shall not apply to any proceeding scheduled to commence after December 31, 2010. To close the record of a hearing, the Chief Judge shall make an announcement that the taking of testimony has concluded. In its discretion the Copyright Royalty Board may close the record as of a future specified date, and all time for exhibits yet to be prepared to be admitted, provided that the parties to the proceeding stipulate on the record that they waive the opportunity to cross-examine or present evidence with respect to such exhibits. The record in any hearing that has recessed may not be closed by the Chief Judge before the day on which the hearing is to resume, except upon ten days' notice to all parties. (a) An official reporter for the recording and transcribing of hearings shall be designated by the Copyright Royalty Board. Anyone wishing to inspect the transcript of a hearing may do so at the offices of the Board. (b) The transcript of testimony and all exhibits, documents, filings and other items submitted in the course of a proceeding shall constitute the official written record. The written record, along with the Board's final determination, shall be available at the Board's offices for public inspection and copying. (a) Any party to the proceeding may file proposed findings of fact and conclusions, briefs or memoranda of law, or may be directed by the Board to do so. Such filings, and any replies to them, shall take place at such time after the record has been closed as the Board directs. (b) Failure to file when directed to do so shall be considered a waiver of the right to participate further in the proceeding unless good cause for the failure is shown. (c) Proposed findings of fact shall be numbered by paragraph and include all basic evidentiary facts developed on the record used to support proposed conclusions, and shall contain appropriate citations to the record for each evidentiary fact. Proposed conclusions shall be stated and numbered by paragraph separately.
Title 37: Patents, Trademarks, and Copyrights
PART 351—PROCEEDINGS
Section Contents
§ 351.1 Initiation of proceedings.
§ 351.2 Voluntary negotiation period; settlement.
§ 351.3 Controversy and further proceedings.
§ 351.4 Written direct statements.
§ 351.5 Discovery in royalty rate proceedings.
§ 351.6 Discovery in distribution proceedings.
§ 351.7 Settlement conference.
§ 351.8 Pre-hearing conference.
§ 351.9 Conduct of hearings.
§ 351.10 Evidence.
§ 351.11 Rebuttal proceedings.
§ 351.12 Requests for additional discovery during the hearing in rate proceedings.
§ 351.13 Closing the record.
§ 351.14 Transcript and record.
§ 351.15 Proposed findings of fact and conclusions of law.
§ 351.1 Initiation of proceedings.
top
§ 351.2 Voluntary negotiation period; settlement.
top
§ 351.3 Controversy and further proceedings.
top
§ 351.4 Written direct statements.
top
§ 351.5 Discovery in royalty rate proceedings.
top
§ 351.6 Discovery in distribution proceedings.
top
§ 351.7 Settlement conference.
top
§ 351.8 Pre-hearing conference.
top
§ 351.9 Conduct of hearings.
top
§ 351.10 Evidence.
top
§ 351.11 Rebuttal proceedings.
top
§ 351.12 Requests for additional discovery during the hearing in rate proceedings.
top
§ 351.13 Closing the record.
top
§ 351.14 Transcript and record.
top
§ 351.15 Proposed findings of fact and conclusions of law.
top
