Such
rates and terms shall distinguish among the different types of eligible
nonsubscription transmission services then in operation and shall
include a minimum fee for each such type of service, such differences to
be based on criteria including, but not limited to, the quantity and
nature of the use of sound recordings and the degree to which use of the
service may substitute for or may promote the purchase of phonorecords
by consumers. In establishing rates and terms for transmissions by
eligible nonsubscription services and new subscription services, the
copyright arbitration royalty panel shall establish rates and terms that
most clearly represent the rates and terms 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-
(i) whether use of the service may substitute for or may promote the
sales of phonorecords or otherwise may interfere with or may enhance the
sound recording copyright owner's other streams of revenue from its
sound recordings; and
(ii) the relative roles of the copyright owner and the transmitting
entity in the copyrighted work and the service made available to the
public with respect to relative creative contribution, technological
contribution, capital in-vestment, cost, and risk.
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