Such rates shall include a minimum fee for each type
of service offered by transmitting organizations. The copyright
arbitration royalty panel shall establish rates that most clearly
represent the fees that would have been negotiated in the marketplace
between a willing buyer and a willing seller. In determining such rates
and terms, the copyright arbitration royalty panel shall base its
decision on economic, competitive, and programming information presented
by the parties, including-
(A) whether use of the service may substitute for or may promote the
sales of phonorecords or otherwise interferes with or enhances the
copyright owner's traditional streams of revenue; and
(B) the relative roles of the copyright owner and the transmitting
organization in the copyrighted work and the service made available to
the public with respect to relative creative contribution, technological
contribution, capital investment, cost, and risk.
In establishing such rates and terms, the copyright arbitration royalty
panel may consider the rates and terms under voluntary license
agreements negotiated as provided in paragraphs (2) and (3).
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