If you’re a webcaster, you’ve got until January 31 to wrap up your annual SoundExchange homework.
This should not be news to anybody. We’ve provided an annual reminder about the deadline and all that it entails since 2009. And yet, every year, some webcasters don’t pay attention and miss the filing date. As a result, they may lose the ability to claim the “small broadcaster” or “noncommercial microcaster” status that reduces their obligations for the rest of the year. Worse, they could open themselves up to a very sharply worded letter from SoundExchange advising of potentially significant monetary penalties. Sure, those penalties may not reach the worst-case scenario ($150K per copyrighted work), but they will almost certainly exceed by a long shot what it would cost simply to comply with filing requirements on time.
So this year, let’s try not to be the guy who sleeps through the deadline.
The chores should be old hat to anyone who’s been webcasting for more than a year.
The principal item of business is the submission of the Annual Minimum Fee Statement of Account form. That will require you to confirm the webcasting classification that applies to you. There are several classifications to choose from; if you’re a broadcaster who happens to be webcasting, too, you will almost certainly fall into one of six categories:
- commercial broadcaster;
- small commercial broadcaster;
- noncommercial webcaster subject to the Copyright Royalty Board’s Webcaster III decision;
- noncommercial webcaster subject to the Webcaster Settlement Agreement (WSA);
- noncommercial microcaster; or
- noncommercial educational broadcaster.
If you’re a noncommercial educational microcaster, you file the general “noncommercial educational” Statement of Account and simply request the reporting waiver on that form. (Note that some public radio station may belong to a separate classification whose filings are made through Public Radio Interactive.)
When you file your Annual Minimum Fee Statement of Account form – again, it’s due by January 31 – don’t forget to include the minimum fee along with (that’s $500 per channel).
If the classification you choose makes you eligible for waiver of the Playlist Report of Use requirement, make that election on the Annual Minimum Fee Statement of Account form. You’ll have to pay an additional $100 “proxy fee” per service or per channel, depending on your classification. Unlike previous years, this year you will be asked to provide SoundExchange a separate email notification of your waiver election. (Previously, folks claiming the waiver had to file a separate election form.)
Anyone who is not sure which classification they fall into should contact a knowledgeable attorney immediately: once a choice is made and the Annual Minimum Fee Statement of Account Form has been filed, you’re stuck with classification you have selected and there’s no going back until next year.
While completing those chores should get you through the January 31 deadline, that’s not the end of the story.
Most webcasters will also have to file Monthly Statement of Account forms (sometimes called the “report of use” form). These report either (a) the number of performances the webcaster incurred during the reporting month or (b) whether the allowable threshold of 159,140 “aggregate tuning hours” was exceeded in the month. As the name implies, that’s a monthly form. It can be filed as soon as the month ends, but it must be filed no later than 45 days after the end of the month.
Folks who did not opt for the reporting waiver mentioned above (that’s the waiver that requires payment of a $100 “proxy fee”) will normally have to file monthly Playlist Reports of Use. Like the Monthly Statements of Account, these can be filed as soon as the month, but they must be filed within 45 days of the end of the month.
(Note that some rare exceptions to the monthly reporting requirements are available. If you’re not sure whether you qualify, it’s best to confer with an attorney who can help determine whether those exceptions apply in any particular case.)
Dealing with SoundExchange can be a complex and not-necessarily-intutive process. Again, you should contact an attorney if you need more information about the licensing scheme in general or advice regarding your options, obligations, and/or the procedures for compliance.
And don’t wait: again, the first – and binding – deadline is just 10 days away!