CRB Decision Elicits Opinions
A recent U.S. Circuit Court of Appeals ruling — in a case involving the
Intercollegiate Broadcasting System and its concerns about webcasting royalties
— coughed up an interesting take: At least part of the Copyright Royalty Board is
As with most things legal, the ruling
seems a bit complicated to the layman. Fortunately, legal experts such as
Fletcher Heald & Hildreth attorney Harry Cole (who also writes for Radio World) had a thought on it, as does
attorney David Oxenford as reported by RAIN.
The CRB is charged with “facilitating
efficiency of transactions required by law between copyright holders and
distributors.” Its judges conduct proceedings when parties are unable to reach
agreement on royalty terms, and they facilitate distribution of royalties in
concert with the U.S. Copyright Office.
The nut is that the CRB, or at least part of it, is unconstitutional
because its officers need to be appointed by the president and confirmed by the
Senate (i.e. the “Appointments Clause” in the Constitution). The current crop
was appointed by the Librarian of Congress, not appointed by the president nor
approved by the Senate.
However, according to both of these legal observers, the court “fixed” the constitutionality of the CRB with a little
excision of some language in the governing statute. CommLawBlog half-seriously
described this as a “legerdemaine.” Both agreed that the decision’s main
effect would be construed narrowly and only affect the IBS case rather than creating a wholesale reexamination of all CRB actions. The case
involves a challenge to a decision involving certain noncommercial webcasters.