[Federal Register: January 18, 1994]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Parts 251, 252, 253, 254, 255, 256, 257, 258, 259, 301, 302,
303, 304, 305, 306, 307, 308, 309, 310, and 311
[Docket No. RM94-1]
Copyright Arbitration Royalty Panels; Rules and Regulations
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking and announcement of open meeting.
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SUMMARY: On December 22, 1993, the Copyright Office of the Library of
Congress in accordance with the Copyright Royalty Tribunal Reform Act
of 1993, adopted in their entirety the rules and regulations of the
former Copyright Royalty Tribunal. The Office stated at that time that
it was adopting the rules on an interim basis, and that it would soon
commence a rulemaking proceeding to update and revise those rules.
Today's action commences that proceeding by publishing a set of
proposed rules and announcing a public meeting to discuss the proposed
regulations.
DATES: Written comments should be received on or before February 15,
1994. The open meeting will be held on February 1, 1994.
ADDRESSES: Ten copies of written comments should be addressed, if sent
by mail, to: Copyright Office, Library of Congress, Department 17,
Washington, DC 20540. If delivered by hand, copies should be brought
to: Office of the General Counsel, Copyright Office, room LM-407, James
Madison Memorial Building, 101 Independence Avenue, SE., Washington, DC
20540. In order to ensure prompt receipt of these time sensitive
documents, the Office recommends that the comments be delivered by a
private messenger service.
The meeting will be in Hearing Room 921, 9th Floor, 1825
Connecticut Avenue, NW., Washington, DC beginning at 10 a.m. Parties
need not inform the Copyright Office of their intention to participate.
FOR FURTHER INFORMATION CONTACT:
Marybeth Peters, Acting General Counsel, U.S. Copyright Office, Library
of Congress, Washington, DC 20540, (202) 707-8380.
SUPPLEMENTARY INFORMATION: The Copyright Office of the Library of
Congress is proposing new regulations under 17 U.S.C. 802(d),
supplementing and superseding the former Copyright Royalty Tribunal's
rules and regulations which were adopted on December 22, 1993. 58 FR
67690 (1993). The Office is also proposing a course of action for
dealing with rate adjustment and distribution matters which were
pending before the Tribunal at the time of its elimination. A meeting
open to the public will be held on February 1, 1994 at 10 a.m. to
discuss all issues related to today's publication.
I. Background
On December 17, 1993, the President signed into law the Copyright
Royalty Tribunal Reform Act of 1993 (``Reform Act''). Public Law No.
103-198, 107 Stat. 2304. Effective immediately upon enactment, the
Reform Act amends the Copyright Act, 17 U.S.C., by eliminating the
Copyright Royalty Tribunal and transferring its responsibilities and
duties to ad hoc Copyright Arbitration Royalty Panels (CARPs), to be
administered by the Library of Congress and the Copyright Office. As
directed by the new act, the Librarian of Congress will convene
Copyright Arbitration Royalty Panels for the purpose of adjusting rates
and distributing royalties. See 17 U.S.C. 111, 115, 116, 118, 119 and
chapter 10.
Immediately upon enactment of the Reform Act the Copyright Office
issued a notice adopting the full text of the former Tribunal's rules
and regulations on an interim basis. 58 FR 67690 (1993). This action
was required by new section 802(d) of the Copyright Code, which
provides:
Effective on the date of the enactment of the Copyright Royalty
Tribunal Reform Act of 1993, the Librarian of Congress shall adopt
the rules and regulations set forth in chapter 3 of title 37 of the
Code of Federal Regulations to govern proceedings under this
chapter. Such rules and regulations shall remain in effect unless
and until the Librarian, upon the recommendation of the Register of
Copyrights, adopts supplemental or superseding regulations under
subchapter II of chapter 5 of title 5.
17 U.S.C. 802(d). The Copyright Office made only slight technical
changes to the former Tribunal's rules, stating that it intended to
review and revise the rules during the course of a future rulemaking.
58 FR at 67690 (1993). The Office now commences that proceeding to
conform the rules to the new system of Copyright Arbitration Royalty
Panels.
II. Matters Pending Before the Former Tribunal
A major issue facing the Copyright Office of Library of Congress at
the outset of today's proposed rulemaking is the resolution of rate
adjustments and distributions, and related matters, which were pending
before the Copyright Royalty Tribunal at the time of its demise. Some
of these proceedings, such as distribution of 1990 cable royalties, had
already commenced hearings, while others were awaiting determination of
controversies or rulings on procedural issues. Since the Office is
proposing new rules and regulations which will govern and shape rate
adjustment and distribution proceedings under the new system, the
Office must first decide how to handle the Tribunal's old business.
The Copyright Office is of the firm opinion that it is not the
successor agency or office to the Copyright Royalty Tribunal. The
Reform Act represents a radically different approach for adjusting
rates and distributing royalties for the copyright compulsory licenses,
and is not an absorption of one agency by another. The Tribunal is
replaced, not moved or merged, by ad hoc Arbitration Panels which are
to be administered by the Copyright Office of the Library of Congress.
The Office is therefore not simply picking up where the Tribunal left
off, but is responsible for administering a completely new system of
ratemaking and distribution.
Because the Copyright Office is not a successor agency, it is our
preliminary finding that all proceedings pending before the Tribunal at
the time of its elimination were terminated at that time. In other
words, the Office will not continue to conduct and handle matters and
proceedings which were before the Tribunal, but will require that all
parties which had pending business before the Tribunal at the time of
its elimination must, if they desire the matter to receive further
consideration, file the matter anew before the Copyright Office. Thus,
for example, the Librarian will not automatically convene a Copyright
Arbitration Royalty Panel to pick up where the proceedings left off for
the 1990 cable distribution, but will require the parties who
participated in that proceeding to refile their case with the Office in
accordance with the rules and regulations proposed below. While the
Office understands that the parties may be somewhat burdened by
duplicating at least a portion of their case, it is necessary that the
Office wipe the slate clean and, for purposes of the operation of the
proposed rules and administrative efficiency, begin anew the matters
pending before the former Tribunal.
An issue related to the termination of proceedings pending before
the former Tribunal and the requirement of new filings is the legal
effect of orders and decisions issued by the Tribunal during those
proceedings. New section 802(c) of the Copyright Act states that
Copyright Arbitration Royalty Panels ``shall act on the basis of * * *
prior decisions of the Copyright Royalty Tribunal * * *'', but does not
bind the Panels to those decisions; the effect of those decisions on
the Librarian or the Copyright Office is not mentioned.
The Copyright Office has no intention of questioning or reopening
matters decided by the former Tribunal with respect to ongoing
proceedings. However, we understand that the termination of pending
Tribunal proceedings and the requirement of new filings will likely
raise again some of the issues previously decided by the Tribunal. The
Copyright Office of the Library of Congress makes a preliminary finding
that, while we will look to the Tribunal's decisions and orders for
guidance, neither the Office nor the Copyright Arbitration Royalty
Panels are legally bound by those decisions.\1\ All legal issues
related to proceedings pending before the Tribunal at the time of its
elimination may therefore be resubmitted to the Copyright Office and,
where appropriate, to the Arbitration Panels for consideration.
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\1\The Copyright Office acknowledges that it is of course bound
by rate adjustments and distributions that the Tribunal had
conducted and concluded before its elimination. Thus, for example,
the Office will not entertain any petitions to reexamine cable
distributions for years earlier than 1990.
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III. Proposed Rules
Revising the former Tribunal's rules is a particularly complicated
task, given the division of authority between the Copyright Arbitration
Royalty Panels and the Copyright Office of the Library of Congress.
Under the old law the Tribunal acted as a single autonomous body; in
contrast, the distribution of royalty fees or the setting of royalty
rates under the new legislation will often be a multistage process. For
example, in order to adjust a compulsory license royalty rate, the
Librarian of Congress, with the recommendation of the Register of
Copyrights, must appoint an arbitration panel and then review the
panel's report and, with the Register's recommendation, either approve
the report or substitute his/her own judgment. This new system renders
many of the former Tribunal's rules and regulations inappropriate, and
requires creation of a new framework to allocate responsibilities.
At the same time, the Library and the Copyright Office recognize
the desirability of preserving as much continuity as possible between
the old and new systems.\2\ The proposed rules are based upon and seek
to track the structure and organization of the former Tribunal's rules.
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\2\The need for continuity is underscored by the Reform Act's
instruction that the Tribunal's rules be fully adopted upon
enactment, to be later amended or superseded. See 17 U.S.C. 802(d).
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The Library and Copyright Office have thoroughly reviewed the
entire body of the former Tribunal's rules and regulations and
considered the extent to which they fit with the new bifurcated system
of ad hoc Arbitration Panels administered by the Library and the
Office. The results are today's proposed rules, which are intended to
preserve the essential elements of the Tribunal's system while taking
into account the requirements and complexities presented by an
independent arbitration process.
At the outset a technical change is required by the regulations
governing the Code of Federal Regulations itself; the former Tribunal's
rules are being moved from Chapter III to Chapter II of Title 37, CFR.
Chapter III is repealed, and Chapter II is restructured to accommodate
the new body of regulations. Chapter II, which until now has contained
five individual parts (Parts 201-204 and 211), will be divided into two
subchapters. Subchapter A will contain the five original parts of
Chapter II, and new Subchapter B will contain the entire body of the
former Tribunal rules, along with today's proposed changes. And future
rule changes or additions bearing upon the Copyright Arbitration
Royalty Panels will appear in subchapter 8 of Chapter II, 37 CFR.
The part numbers of the rules generally track the Tribunal's
original structure (parts 301-311), and are redesignated parts 251-259
of the Copyright Office's rules. Two parts of the Tribunal's former
rules, parts 303 and 305 relating to jukebox performances, are being
repealed since their relevance has been eliminated by the Reform Act's
repeal of the jukebox compulsory license.
The main task of today's proposed rulemaking is to provide the
substantive changes in the former Tribunal's rules necessary to
implement the Reform Act and to create a workable and efficient system
for adjusting royalty rates and distributing royalties. The following
is a part-by-part summary of the proposed changes.
A. Part 251--Copyright Arbitration Royalty Panels Rules of Procedure
Part 251 is a proposed revision of part 301 of the former
Tribunal's rules, which covered most of the Tribunal's operating
procedures and rules of practice. This is the part that is in greatest
need of revision, since many of the rules are inappropriate to govern
the new system of ad hoc Arbitration Panels. The following summarizes
the proposed changes in the various subparts of part 251.
1. Subpart A--Organization
Subpart A of part 251, entitled ``Organization'' and describing the
composition of the Copyright Royalty Tribunal, was rendered superfluous
by the Reform Act. Since it is necessary to create a completely
different organizational scheme to implement the new system, we are
planning to repeal all of subpart A and to substitute completely new
provisions.
Official Address. Part 251.1 provides a single official address for
all proceedings and actions conducted under subchapter B. Establishment
of an official address is important, since many sections of subchapter
B refer to this section or require documents to be filed at this
address, including all royalty claims, requests for information, public
access to documents, payments of Arbitration Panel costs, and motions,
objections, and records filed with the Panels. Moreover, since all
records submitted to the Copyright Office, to the Library, and to the
CARPs are, with limited exceptions, available to the public for
inspection and copying, a single address is required to assure that all
documents will be assembled in a single location for the convenience of
those wishing to inspect them. We also believe that providing a single
permanent repository for all documents created and submitted under
subchapter B is not only important, but required.
All this may seem self-evident, but there is a problem here. Unlike
the proceedings of the Tribunal, arbitration proceedings will not
necessarily take place at a single location, within the Library of
Congress or elsewhere. There may be incentive in particular cases for
parties to deliver filings directly to the actual location where the
CARP is meeting, but we believe it would be a mistake to allow entire
filings to go to locations different from the mailing address specified
in these proposed regulations. Any possible advantages of such a system
to the parties or the Panels would be outweighed by the dangers of
confusion among parties to different proceedings and possible
uncertainties and difficulties in mail receipt and delivery. Since
individuals' rights often depend on the timely filing and delivery of
papers, the guarantee of proper handling can only be afforded by
delivery to a single address in the Copyright Office of the Library of
Congress.
At the same time, while section 251.1 creates a single official
address, section 251.44 provides the parties flexibility in submitting
documents and filing papers. In cases where an Arbitration Panel is
conducting a hearing, the arbitrators are directed to establish
requirements permitting delivery of filings directly to them, as long
as one copy of the filing is delivered to the Copyright Office at its
official address.
Purpose of the CARPs. Section 251.2 describes the purpose of the
Copyright Arbitration Royalty Panels: to make rate adjustments and/or
royalty distributions for the cable (17 U.S.C. 111), mechanical (17
U.S.C. 115), jukebox (17 U.S.C. 116), public broadcasting (17 U.S.C.
118), satellite carrier (17 U.S.C. 119) and digital audio recording
devices and media (17 U.S.C. chapter 10) licenses. The jurisdiction of
the Copyright Arbitration Royalty Panels is more limited than that of
the Copyright Royalty Tribunal which, for example, had authority to
adjust the royalty maximum for digital audio recording devices. This
adjustment is now the province of the Librarian. See 17 U.S.C.
1004(a)(3). There are also certain arbitration procedures in the
Copyright Act which are not within the jurisdiction of the CARPs. See
17 U.S.C. 119 and 1010.
List of Arbitrators. The Reform Act provides that the selection of
arbitrators for a Royalty Panel must be made from ``lists provided by
professional arbitration associations.'' 17 U.S.C. 802(b). Sections
251.3 and 251.4 govern the creation and use of those lists. Before the
beginning of each year (and, in the case of the current year of 1994,
before March 1), any professional arbitration association or
organization may submit a list of its member arbitrators who would be
qualified to serve on a Copyright Arbitration Royalty Panel. Specific
information is required with respect to each person whose name is
submitted, including current and past employment, educational
background, and a description of the facts and information that would
qualify the person to serve as an arbitrator. After receiving the
lists, there will be an initial screening process in which the
Librarian will determine: 1) if the proposed person meets the necessary
qualifications to serve as an arbitrator; and 2) if that person can
reasonably be expected to be available during that calendar year. The
names of persons meeting the requirements will be published in the
Federal Register at the beginning of each year (in the case of 1994, by
March 1), and this publication will serve as the master list from which
the Librarian can select names for any arbitration proceeding
commencing in that calendar year.
Objection Procedure. The Librarian will screen the master list, and
there is also a procedure for objection. The objection procedure is
confined to the period before an individual arbitration proceeding
begins, and is limited to the parties participating in that proceeding.
In the case of rate adjustment proceedings, parties may file their
objections during the 90-day ``cooling off'' period following the
filing of petitions for adjustment. See Sec. 251.63. In the case of
distribution proceedings, objections must be filed during the
precontroversy discovery period specified by Sec. 251.45(a). Objections
must clearly spell out the facts and reasons for disqualification of
persons on the arbitrator list, and the Librarian will consider them
during the selection process for the first two arbitrators. Once the
Librarian has made his selections, the objections will be made
available to the two arbitrators to assist them in their selection of
the third arbitrator. No peremptory objections will be allowed.
Qualifications of the Arbitrators. Section 251.5 describes the
qualifications a person must have to serve as an arbitrator. We have
deliberately avoided adopting an extensive and specific list of
qualifications on the theory that the results of a long, overly-
particularized list of qualifications would likely result in a
homogeneous Panel, and that the Librarian should be able to choose from
persons of diverse backgrounds and skills. The Reform Act requires that
an arbitrator have experience in conducting arbitration proceedings,
and experience in settling disputes. The only two qualifications the
Office has added are membership in a bar association and ten or more
years of legal practice. Since the arbitration process contemplated by
the Reform Act often resembles an adjudicatory procedure more than a
traditional arbitration, the Office felt that it was necessary for
arbitrators to be lawyers with a fair amount of experience as
practitioners. The area of practice is not specified; we believe that a
background in copyright, though helpful, is not necessarily
indispensable to serving as an arbitrator. Keeping the number of
qualifications to a minimum should produce a diversified group of
individuals to serve as arbitrators with the necessary legal training
and experience to accomplish the task efficiently and effectively.
Selection Process. Section 251.6 describes the selection process
for an arbitration panel, restating the process described in the Reform
Act. See 17 U.S.C. 802(b). The section requires the chairperson to act
according to the majority wishes of the panel. There is also a
provision regarding substitution of arbitrators who, after selection,
for some reason become unable to continue service. In that event, the
Librarian is directed to select a replacement promptly unless hearings
have already begun in the proceeding. If hearings have begun, the
remaining arbitrators or arbitrator would constitute the quorum
necessary to render a determination.
Division of Authority between Librarian and CARP. Section 251.7
underscores the division of authority between the Librarian and the
Royalty Panels. The Panels are limited by the statute to making
determinations in individual and separate proceedings necessary to
settling a controversy over royalty rates or distributions. Although
given authority to issue orders governing the conduct of the
proceedings, the Panels do not have rulemaking authority to amend or
otherwise alter these rules and regulations when they are issued in
final form.\3\ Furthermore, since the Panels are not independent
agencies, they have no authority to publish materials in the Federal
Register. Because the Panels are considered a part of the Copyright
Office and the Library of Congress, any orders and rulings of the
Panels that are to be published must be issued under the auspices of
the Office and the Library.
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\3\Section 251.42 allows an individual Panel to waive or suspend
the rules of subchapter B for purposes of the proceeding. In the
cases where Subchapter B does not prescribe a rule governing a
particular question, the Panel, in accordance with 17 U.S.C. 802(c),
may adopt its own rule for purposes of that proceeding. This
provision is designed to give a Panel some flexibility in executing
its duties with respect to the facts of its case. It is not,
however, a grant of rulemaking authority, and any waiver, suspension
or adoption of a rule has effect only on the course of that
proceeding and in no way affects the rules and regulations of this
subchapter or their application to other proceedings. It is expected
that each Panel will follow these rules and apply them in a way that
produces a just and equitable proceeding.
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2. Subpart B--Public Access to Copyright Arbitration Royalty Panel
Meetings
Although the Government in the Sunshine Act, Public Law No. 94-409,
90 Stat. 1241, does not apply to Copyright Arbitration Royalty Panels,
since CARPs are not an ``agency or agencies,'' the Copyright Office
believes that the provisions of the Act should apply to the conduct of
meetings held by the arbitrators. This Subpart, therefore, tracks the
procedures governing open and closed meetings which the former Tribunal
adopted and followed with only a few changes.
Section 251.11 states that all meetings of a Copyright Arbitration
Royalty Panel shall be open to the public unless otherwise specified.
Notice of the anticipated schedule of the hearings will be placed in
the Federal Register at least 7 days before the meeting. As amendments
to the schedule are made, every practicable effort will be made to keep
the public informed. Section 251.12 provides for public and media
access to open meetings, adopting the former Tribunal's rules in toto.
Sections 251.13 to 152.16 prescribe the procedures to be followed
in closed meetings, adopting virtually all of the former Tribunal's
rules. Section 251.13 drops the requirement of closed meetings for
internal personnel matters, since the Panels are without authority to
hire or maintain personnel, but it adds to the discretion of the Panel
to go into closed session to deliberate on a motion or objection raised
orally at hearing. Section 251.16 directs that transcripts of closed
meetings shall be kept at the Copyright Office, which is the official
address for all arbitration proceedings.
3. Subpart 3--Public Access to and Inspection of Records
As in subpart B, the copyright Office is proposing in subpart C to
adopt the former Tribunal's rules with respect to public access to and
inspection of records, but with some important changes. The range of
documents available to the public is expanded. Section 251.21 provides
that, with limited exceptions, all records of the Copyright Arbitration
Royalty Panels, and also those of the Librarian of Congress assembled
and/or created under 17 U.S.C. 801 and 802, are available for public
inspection and copying. Thus, for example, rulings or decisions of the
Librarian made before the convening of an Arbitration Panel would be
publicly available.
The same difficulties raised by adoption of a single official
address, as discussed above, also arise with respect to the location of
documents. While all filings with a CARP required by the proposed rules
must be submitted through the Copyright Office, certain documents other
than filings may, during the course of a proceeding, be in the sole
possession of a Panel. Example are a document admitted into evidence
during the course of a hearing to impeach the testimony of a witness,
or the transcript of an ongoing proceeding. Section 251.22 therefore
specifies that all documents and records in the sole possession of a
Copyright Arbitration Royalty Panel and not required to be filed with
the Copyright Office may be maintained by the chairperson at the
location of the hearing, or at a location specified by the Panel. All
requests for access, however, must be directed to the Copyright Office,
and not the Arbitration Panel. In the case of documents solely in the
possession of the Panel, the Copyright Office shall made arrangements
to allow the person making the request to inspect and copy them. The
schedule of fees for services of this sort are those currently charged
by the Copyright Office for like services.
Because the Copyright Office already has its own Freedom of
Information Act and Privacy Act guidelines, see 37 CFR parts 203 and
204, it is not adopting the former Tribunal regulations related to
those Acts. The Office acknowledges that some adjustments to those
rules may be required by the peculiarities of the Copyright Arbitration
Royalty Panel system, but we believe there should be some practical
experience before we identify any necessary changes.
4. Subpart D--Standards of Conduct\4\
The Office is not proposing any regulations at this time, but as
part of this proceeding we are inquiring as to standards of conduct
that should apply to the arbitrators.
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\4\The Copyright Office is proposing to repeal subpart D, as it
appeared in the former Tribunal's rules, and replace it with rules
governing standards of conduct for arbitrators. Former subpart D
contained Equal Employment Opportunity provisions for the Tribunal,
which are no longer relevant for CARPs since they are without
authority to hire personnel or maintain a staff.
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5. Subpart E--Procedures of Copyright Arbitration Royalty Panels
As with so many of the rules of this subchapter, the new bifurcated
system of the Reform Act requires some changes in the former Tribunal's
rules governing the conduct of proceedings. Nevertheless, although
consequential adjustments are needed, we believe that the over-all
system of procedures long used by the Tribunal in rate adjustment and
distribution proceedings have served the public interest well and
should be preserved. Maintaining the Tribunal's system to the extent
possible should reduce the learning process for parties that have
appeared before the former Tribunal for many years and should also, we
hope, avoid some confusion.
Application of CARPs Procedures and Practice. For the most part the
hearing procedures and motions practice applicable to the CARPs are
carried over from those of the former Tribunal. Section 251.40
specifies that the procedural rules of this subpart E apply only to the
Copyright Arbitration Royalty Panels and not to the actions of the
Librarian or the Copyright Office, unless otherwise expressly provided
in this subpart. The section also states that subpart E only applies to
CARPs, and not to other arbitration proceedings under the Copyright
Code. The Office is not statutorily required to apply these rules to
other arbitration proceedings. Although it is possible that some or all
of these rules may ultimately be adopted for other arbitration
purposes; the statement clarifies the issue as of now and grants the
Office flexibility in making future decisions on the point.
Formal Hearings and Other CARP Proceedings. Section 251.41 direct
the Panels to conduct formal hearings for rate adjustment and royalty
distribution proceedings. All parties intending to participate in a
hearing must file a notice of their intention to do so. The Panels are
also allowed to conduct other proceedings in the exercise of their
basic functions, subject to section 251.7. For example, in the course
of a distribution controversy, a legal issue may arise which requires
resolution before the proper distribution can be determined. The Panel
could conduct a proceeding to resolve that issue, which would be part
of its function in determining the distribution. It may also happen
that resolution of the legal question will permit the parties to the
proceeding to settle their differences, thereby avoiding the need for a
Panel distribution determination. The Panel, however, is still subject
to section 251.7, and could not conduct a rulemaking proceeding
affecting any provisions of subpart E. Section 251.41 also recognizes
that, in the interest of reducing the expense of litigation, some
parties may wish to have their royalty entitlement or rate determined
solely by written submissions, and a procedure for petitioning the
Librarian to have a ``paper'' proceeding is provided.
Suspension or Waiver of Rules; Ad Hoc Procedures. As noted above,
although it is clear that the Arbitration Panels have no rulemaking
authority, section 251.42 authorizes them to waive or suspend the rules
of subpart E for purposes of a particular proceeding. This carries on a
practice formerly used by the Tribunal, and allows the Panels
flexibility in addressing the specific conditions and circumstances of
each proceeding; if the Panels were not allowed this flexibility, the
resulting procedural rigidity could produce injustices. In cases where
subpart E is silent as to the correct procedure to be observed, the
Panel may follow its own procedures, as long as they are consistent
with the Administrative Procedure Act. However, as with suspension or
waiver, the ad hoc procedures adopted by that Panel apply only to that
particular proceeding and that particular Panel.
Institution of Proceedings. As was the case with the former
Tribunal, proceedings before a Panel begin with the filing of the
written direct case. Section 251.43 specifies that the written direct
case must include all testimony and exhibits, complete with proper
referencing. Each party submitting a written direct case must specify
its requested royalty rate or percentage of the royalty pool, whichever
is applicable. No evidence may be submitted in the direct written case
without a sponsoring witness or official notice, unless good cause is
shown. Section 251.43 also gives Copyright Arbitration Royalty Panels
discretion in setting the time for the filing of written rebuttal cases
after the conclusion of the hearing.
Filing and Service of Written Cases and Pleadings. Section 251.44
governs the filing and service of written cases and pleadings. The
division of authority, together with the possible differences in the
location of the Copyright Office and the places where the CARPs hold
their hearings, require special filing and service requirements. The
former Tribunal could maintain all records and evidence at one
location, but this is not possible under the new system. Section
251.44(a), therefore, requires that an original and three copies of all
filings made to a Panel be submitted in such manner as the Panel shall
direct. As was discussed above in connection with the official mailing
address, location of arbitration proceedings is likely to change, and
the circumstances surrounding mail delivery and receipt could be
uncertain. Section 251.44(a) allows the Panels flexibility to deal with
this problem by allowing them to establish the means of delivery,
whether it be by direct hand delivery, delivery to a specified address,
or establishment of a temporary post office box. The parties submitting
filings, however, are still required to deliver one copy of their
pleading or filing to the Copyright Office at its official address. In
the case of large or bulky filings, a Panel may reduce the number of
copies it requires, but a complete copy must nonetheless be submitted
to the Copyright Office.
Section 251.44(b) prescribes the requirements with respect to all
filings with the Librarian of Congress--that is motions and pleadings
filed with the Librarian in accordance with these proposed rules both
before and after the CARP proceedings. Under the proposed rule, each
party must file an original and five copies with the Copyright Office.
Section 251.44 also maintains the English-language translation,
affidavit, subscription and verification, and service requirements of
the former Tribunal.
Precontroversy Discovery. Section 251.45 significantly expands the
scope of permitted discovery in arbitration proceedings. In his
statement accompanying H.R. 2840. Representative William Hughes,
Chairman of the House Subcommittee on Intellectual Property and
Judicial Administration of the House Committee on the Judiciary,
commented favorably on the use of precontroversy discovery and exchange
of information. See 139 Cong. Rec. H10973 (daily ed. Nov. 22, 1993)
(``In order to reduce the amount of actual litigation time, and thereby
reduce expenses, I encourage the Librarian to promulgate regulations
permitting exchange of information before the tolling of the 180-day
decision period, and, to the extent practicable, generally to permit
precontroversy discovery.''). Section 251.45 is proposed to explore the
efficacy of Chairman Hughes' recommendation. We particularly seek
comments on the scope of such precontroversy discovery: whether it
should include interrogatories of witnesses as well as production of
supporting documents, and whether it would advance Chairman Hughes'
goal of reducing costs by being able to stipulate facts and remove
issues, or whether the additional procedures might add costs to the
proceeding.
In the case of royalty distribution proceedings, the proposed rule
directs the Librarian to designate a period for precontroversy
discovery and exchange of documents. This period is to start after the
filing of claims and to end at the declaration of a controversy, and is
the same time period referred to by section 251.4(b) for the filing of
objections to arbitrators. In the case of rate adjustment proceedings,
the period for precontroversy discovery and exchange of documents
corresponds with the 90-day consideration period for all rate
adjustment petitions and proceedings specified by Sec. 251.63.
All parties to a proceeding may voluntarily exchange documents
during this time, or may make discovery requests. Failure to respond to
requests, and any other discovery controversies or issues, will be
resolved by the Librarian. All other objections to royalty claims or
petitions, or motions for procedural or evidentiary rulings, shall also
be submitted to the Librarian for decision during the same time period.
All parties to the proceeding will be given 14 days in which to respond
to a motion or objection, regardless of whether or not this 14-day
period goes beyond the time periods specified in subsection (a). The
Librarian, after consultation with the Register, shall rule on all
motions or objections timely submitted, and will not declare a
controversy and initiate arbitration proceedings until all rulings have
been made. See 17 U.S.C. 801(c).
Discovery and Motions during Proceedings. Section 251.45(c)
prescribes a similar procedure for exchanging documents and motions and
objections filed with a Panel once a proceeding beings. The Panel must
designate a period for discovery with respect to both the written
direct and rebuttal cases. No time limits are set on the length of the
discovery periods--although, given the Panel's 180-day existence, the
deadline will necessarily be short.
After the filing of written cases, either direct or rebuttal, any
party may file objections. If an objection is apparent on the face of
the written case, it must be raised or may thereafter be considered
waived. Section 251.45(d) allows each party whose claim, petition,
written case or direct evidence is the subject of an objection, either
before the Librarian or a Copyright Arbitration Royalty Panel, to amend
its filing to respond to the objection. The Librarian or the Panel may
also request that such amended filing be made where necessary. All
parties will be given a reasonable period of time to conduct discovery
on the amended filing.
Conduct of Hearings. Sections 251.46 through 251.48 are adopted
nearly intact from the former Tribunal's rules. Section 251.46
describes the role of the arbitrators and the chairperson during the
course of a hearing. Section 251.47 describes the course of proceedings
once a hearing has begun, and section 251.48 prescribes the rules of
evidence. Only conforming changes have been made to these sections.
Transcript and Record. Section 251.49 governs transcription of the
hearings and creation of the record. The Librarian shall, from time to
time, designate an official reporter to transcribe the hearings of any
arbitration proceedings taking place during that time. Since
arbitration proceedings are likely to take place in different
locations, the location of the transcript will not always be at a fixed
site. Therefore, the chairperson is directed to specify the location of
the transcript for public inspection. It is anticipated that the
location will usually correspond to that of the hearing, although this
may not always be the case. Once the arbitration proceeding is
concluded, the transcript, along with the full written record, will be
delivered to the Librarian and may be viewed at the Copyright Office.
Rulings and Orders. Section 251.50 gives CARPs the authority to
issue rules and orders necessary to the resolution of the proceedings.
Once again, the absence of the Panels' authority to issue rulemakings
amending, superseding, or supplementing the rules and regulations of
this Subchapter is underscored.
Closing Hearings; Submission of Findings and Conclusions; Report.
Section 251.51, with respect to closing the hearing, and section
251.52, on submission of proposed findings and conclusions, are adopted
intact from the former Tribunal's rules, with conforming amendments.
Section 251.53 essentially codifies the provisions of 17 U.S.C.
802(e) governing the report of Copyright Arbitration Royalty Panels to
the Librarian of Congress. The determination of a Panel is to be
certified and signed by all the arbitrators, and any written dissent is
to be certified and signed by the dissenting arbitrator. Panels must
distribute copies of their determination to all participating parties.
Assessment of Costs of Panels. Section 251.54 governs the
assessment of costs by Copyright Arbitration Royalty Panels.\5\ It
implements new section 802(c) of the Copyright Act which states:
\5\Assessment of costs by the Library and the Copyright Office
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are addressed in Secs. 251.65 and 251.74.
In ratemaking proceedings, the parties to the proceedings shall
bear the entire cost thereof in such manner and proportion as the
Arbitration Panels shall direct. In distribution proceedings, the
parties shall bear the cost in direct proportion to their share of
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the distribution.
After the conclusion of an arbitration proceeding, the Panel will
assess its costs in accordance with the above-described proportions.
The chairperson will deliver a statement to each participating party
listing the Panel's total costs, the party's individual share, and the
amount due to each arbitrator from that party. Payment is to be made to
each arbitrator, as provided in the statement, and must be made either
by money order, check, or bank draft. Failure to submit timely payment
will subject the party to the provisions of the Debt Collection Act of
1982.
Post-Panel Motions; Order of the Librarian; Effective Date;
Appeals. After the arbitration process has concluded and the Panel has
delivered its report, the Reform Act requires that the Librarian of
Congress review the sufficiency of the Panel's determination within 60
days of receipt of the report. Section 251.55 grants the parties to the
proceeding 14 days in which to file petitions with the Librarian
requesting that the determination be modified or set aside, and an
additional 14 days to reply to such petitions. The petitioner must
clearly state its reasons for the modification or reversal, and include
applicable portions of its proposed findings of fact and conclusions of
law. After the four-week period has run, the Librarian will proceed to
a decision on the Panel's report. Section 251.56 essentially codifies
the review process described in 17 U.S.C. 802(f), with the Librarian
publishing the order of his/her decision in the Federal Register and
delivering it to all the parties to the proceeding. The order is to be
effective 30 days after its publication in the Federal Register, unless
an appeal is taken (Sec. 251.57). The appeals process described in
Sec. 251.58 comes directly from 17 U.S.C. 802(g).
6. Subpart F--Rate Adjustment Proceedings
The basic procedural mechanics of an arbitration proceeding are
described in Subpart E, but the different nature of rate adjustment
proceedings in comparison with that of distribution proceedings calls
for additional separate requirements. Subpart F contains those
requirements for rate adjustment proceedings.
Scope of Subpart F. Section 251.60 describes the scope of Subpart
F, emphasizing that it applies only to rate adjustment proceedings and
that it augments the rules of Subpart E. In circumstances where one or
more provisions of Subpart E and F are inconsistent, section 251.60
makes clear that Subpart F is controlling.
Commencement of Proceedings; Content of Petitions. Section 251.61
describes the commencement of adjustment proceedings for the applicable
compulsory licenses. Adjustment is either automatic, as in the case of
non-commercial broadcasting, or by petition, as in the cases of cable,
phonorecords, jukeboxes, and audio home recording devices and media.
The section implements the changes made by the Reform Act with respect
to the dates when proceedings begin or when petitions may be filed.
Thus, cable rate adjustment petitions may be filed in 1995 and every 5
years thereafter; those for phonorecords in 1997 and every 10 years
thereafter; those for jukeboxes within one year of termination or
expiration of a negotiated license; and those for audio home recording
devices and media from October 29, 1997 to October 28, 1998 and not
more than once a year thereafter. In the case of noncommercial
educational broadcasting, the Librarian will publish notice of
initiation of arbitration proceedings on June 30, 1997, and every 5
years thereafter. Section 251.62 adopts the former Tribunal's rules
governing the content of a petition.
Period for Consideration. Section 251.63 is an important provision.
Although it adopts the 90-day ``cooling off'' period used by the
Tribunal to facilitate settlements after the filing of a petition, or
prior to a non-commercial educational broadcasting rate adjustment, the
90-day period is significant for other purposes. This same 90-day
period is used to conduct precontroversy discovery and exchange of
documents (Sec. 251.45), and to file objections to names on the
arbitrator list (Sec. 251.4). The Librarian will designate the 90-day
period for consideration by publishing notice in the Federal Register,
including the effective beginning and ending dates of that period.
Disposition of Petition; Initiation of Proceeding. After the
expiration of the 90-day period, and after the Librarian has resolved
all motions submitted during that period, section 251.64 prescribes
that the Librarian will determine the sufficiency of the rate
adjustment petition. If the petition is sufficient, the Librarian will
publish in the Federal Register a declaration of a controversy and, at
the same time, a notice of initiation of an arbitration proceeding. The
same declaration and notice of initiation shall be done for
noncommercial educational broadcasting in accordance with 17 U.S.C.
118(b) and (c). The declaration and notice of initiation will commence
the 180-day period for proceedings described in 17 U.S.C. 802.
Deduction of Costs. The final section of Subpart F, Sec. 251.65,
implements section 802(h)(1) of the Copyright Act which allows the
Copyright Office and the Library to assess their reasonable costs for
the rate adjustment proceeding directly to the participating parties.
These costs include any administrative services provided under U.S.C.
801(d).
7. Subpart G--Royalty Fee Distribution Proceedings
Subpart G is like Subpart F in that it prescribes additional
procedural requirements inherent in certain royalty distribution
proceedings. There are three compulsory licenses that require royalty-
fee distributions: cable, satellite and digital audio. Section 251.70
states that the provisions of Subpart G apply to these licenses, and
underscores that, in the case of inconsistencies, Subpart G takes
precedence over Subpart E.
Commencement of Proceedings; Determination of Controversy. Section
251.71 describes the commencement of distribution proceedings by
prescribing the time period for the filing of royalty claims.\6\ In the
case of cable, claims must be filed during the month of July; for
satellite during July; and for digital audio during January and
February. Under section 251.72, after the filing of claims as
prescribed by 17 U.S.C. Secs. 111(d)(4)(B) (cable). 119(b)(4)(B)
(satellite carrier), and 1007(b) (digital audio), the Librarian must
determine whether a controversy exists. The Librarian may issue
requests for information or conduct hearings to assist in determining
the existence of a controversy, with notice of the proceedings to be
published in the Federal Register.
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\6\The procedures for filing claims are described in Parts 252,
256, and 258.
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Declaration of Controversy; Initiation of Proceeding. Once the
Librarian has determined that controversy exists, he/she shall publish
in the Federal Register a declaration of controversy along with a
notice of initiation of arbitration. The notice is to include a
description of the nature, structure and schedule of the proceeding.
Deduction of Costs. Section Sec. 251.74 is the royalty-distribution
counterpart of Sec. 251.65; it allows the Library and the Copyright
Office to deduct their reasonable costs incurred as a result of a
distribution proceeding. These expenses include administrative services
provided under 17 U.S.C. 801(d).
B. Part 252--Filing of Claims to Cable Royalty Fees
Part 252 prescribes the filing requirements for claims to cable
royalties. The Part significantly revises the former Tribunal's rules
governing the filing of cable claims by implementing a procedural
system similar to that adopted by the Tribunal for the filing of
digital audio claims. See 58 FR 53822 (1993). Section 252.1 defines the
scope of Part 252.
Time of Filing. Section 252.2 specifies the time of filing for
cable claims. Claims for cable royalties from the preceding calendar
year must be filed during the month of July, and no distribution will
be made to any party failing to make a timely filing. Cable claims may
be filed jointly or singly as the submitting parties choose.
Content of Claims. Section 252.3 describes the required content of
a claim, and is more detailed than the former Tribunal's requirements.
The Copyright Office is not yet prepared to issue claimant forms, and
each claimant must therefore take care to insure that information
meeting all the requirements of section 252.3 is contained in each
claim. Each claim must state the full legal name of the claimant, and
its address, telephone number and facsimile number, if any. The
claimant must also identify at least one of its copyrighted works that
was subject to a secondary transmission by a cable system in the
previous calendar year, thereby establishing a basis for a claim to
royalties. If the claim is a joint claim, there must be a concise
statement of the authorization for filing the joint claim. For this
purpose, performing rights societies will not be required to obtain
separate authorizations from their individual members beyond their
standard agreements.
All claims must be signed by the claimant or a duly authorized
representative, and the Copyright Office must be notified of name and/
or address changes within 30 days of the change. Failure to notify the
Office in a timely fashion is grounds for dismissal of the claim. If a
party submitting an individual claim wishes to change it to a joint
claim, the Office must be notified within 14 days of the agreement to
submit a joint claim. All joint claimants must make available to the
Copyright Office and, if applicable, to a Copyright Arbitration Royalty
Panel--a list of all individual claimants covered by the joint claim.
Compliance With Statutory Dates. Section 252.4 underscores the
importance of complying with the July filing period. A claim is
considered timely filed if it is received by the Copyright Office
during normal business hours in July, or is properly addressed to the
Copyright Office with correct postage and bears a July U.S. postmark.
Claims dated only with a business meter and not received in July are
untimely. Absolutely no claim will be accepted if it is filed by
facsimile transmission.
Proof of Fixation. Finally, section 252.5 clarifies that the
Copyright Office will not require claimants to file copies of their
works. In the event that the issue of fixation arises, the CARP
conducting the proceeding will resolve the controversy on the basis of
affidavits and other appropriate documentary evidence. No affidavits
need be submitted, however, unless requested by the Panel.
C. Parts 253-256
Parts 253 through 256 adopt, with only minor technical changes, the
provisions of the former Tribunal's regulations for use of copyrighted
works by noncommercial educational broadcasters, adjustment of royalty
rates for phonorecord players (jukeboxes), adjustment of royalty rates
for making and distributing phonorecords, and adjustment of royalty
rates for the cable compulsory license. These actions contain current
royalty rates, as adopted by the Tribunal, and will be amended by the
Copyright Office in the future as new rates are set by a Copyright
Arbitration Royalty Panel or the Librarian of Congress, as the case may
be.
In adopting Parts 253-256, several regulations of the former
Tribunal are being repealed. Former Part 303, entitled ``Access to
Phonorecord Players (Jukeboxes)'' is repealed, as is former Part 305,
``Claims to Phonorecord Player (Jukebox) Royalty Fees.'' The need for
these parts was eliminated by the Reform Act's repeal of the section
116 jukebox compulsory license and replacement with section 116A
governing negotiated licenses. The need for former Tribunal Part 306,
however, was not eliminated since it contains royalty rates applicable
to periods dating back to January 1, 1982. These rates must be
preserved, even though the compulsory license has now been eliminated
for future years, in the event that parties making use of copyrighted
works during the periods covered by the license may now, or in the
future, make initial or supplementary payments. Part 254 therefore
adopts Part 306 of the former Tribunal's rules, with only one minor
technical change.
D. Part 257--Filing of Claims to Satellite Carrier Royalty Fees
Part 257 implements exactly the same requirements for 17 U.S.C. 119
satellite carrier royalty claims that Part 252 adopts for cable claims.
Like those for cable, claims in these cases must be filed during the
month of July, and may be filed singly or jointly. Section 257.6 makes
it clear that, although cable and satellite have the same filing
period, separate claims must be filed by a party seeking both cable and
satellite royalty fees for the same calendar year. Any single claim
which attempts to file for both royalty funds will be dismissed.
E. Parts 258-259
Parts 258 and 259 govern the adjustment of royalty fees for the
satellite carrier compulsory license and the filing of digital audio
claims, respectively. These two parts adopt Parts 310 and 311 of the
former Tribunal's rules with only minor technical changes.
List of Subjects
37 CFR Parts 251 and 301
Administrative practice and procedure, Hearing and appeal
procedures.
37 CFR Parts 252 and 302
Cable television, Claims, Copyright.
37 CFR Parts 253 and 304
Copyright, Music, Radio, Rates, Television.
37 CFR Parts 254 and 306
Copyright, Jukeboxes, Rates.
37 CFR Parts 255 and 307
Copyright, Music, Recordings.
37 CFR Parts 256 and 308
Cable television, Rates.
37 CFR Parts 257 and 309
Cable television, Claims.
37 CFR Parts 258 and 310
Copyright, Satellite.
37 CFR Parts 259 and 311
Claims, Copyright, Digital audio recording devices and media.
37 CFR Parts 303
Copyright, Jukeboxes.
37 CFR Parts 305
Claims, Jukeboxes.
Proposed Rules
For the reasons set out in the preamble, 37 CFR Chapters II and III
are proposed to be amended under authority of 17 U.S.C. 802(d) as
follows:
1. Part 301 of Chapter III is removed.
1a. New Subchapter A--Copyright Office Rules and Procedures--is
added to chapter II consisting of Parts 201-211.
1b. New Subchapter B--Copyright Arbitration Royalty Panel Rules and
Procedures--is added to chapter II consisting of Parts 251-259.
2. A new part 251 is added to subchapter B of Chapter II to read as
follows:
PART 251--COPYRIGHT ARBITRATION ROYALTY PANEL RULES OF PROCEDURE
Subpart A--Organization
Sec.
251.1 Official Address.
251.2 Purpose of Copyright Arbitration Royalty Panels.
251.3 Arbitrator lists.
251.4 Arbitrator lists: Objections.
251.5 Qualifications of the arbitrators.
251.6 Composition and selection of Copyright Arbitration Royalty
Panels.
251.7 Actions of Copyright Arbitration Royalty Panels.
Subpart B--Public Access to Copyright Arbitration Royalty Panel
Meetings
251.11 Open meetings.
251.12 Conduct of open meetings.
251.13 Closed meetings.
251.14 Procedure for closed meetings.
251.15 Transcripts of closed meetings.
251.16 Requests to open or close meetings.
Subpart C--Public Access to and Inspection of Records
251.21 Public records.
251.22 Public access.
251.23 FOIA and Privacy Act [Reserved].
Subpart D--Standards of Conduct [Reserved]
Subpart E--Procedures of Copyright Arbitration Royalty Panels
251.40 Scope.
251.41 Formal hearings.
251.42. Suspension or waiver of rules.
251.43 Written cases.
251.44 Filing and service of written cases and pleadings.
251.45 Discovery and prehearing motions.
251.46 Conduct of hearings: Role for arbitrators.
251.47 Conduct of hearings: Witnesses and counsel.
251.48 Rules of evidence.
251.49 Transcript and record.
251.50 Rulings and orders.
251.51 Closing the hearing.
251.52 Proposed findings and conclusions.
251.53 Report to the Librarian of Congress.
251.54 Assessment of costs of Arbitration Panels.
251.55 Post-Panel motions.
251.56 Order of the Librarian of Congress.
251.57 Effective date of order.
251.58 Judicial review.
Subpart F--Rate Adjustment Proceedings
251.60 Scope.
251.61 Commencement of adjustment proceedings.
251.62 Content of petition.
251.63 Period for consideration.
251.64 Disposition of petition: Initiation of arbitration
proceeding.
251.65 Deduction of costs of rate adjustment proceedings.
Subpart G--Royalty Fee Distribution Proceedings
251.70 Scope.
251.71 Commencement of proceedings.
251.72 Determination of controversy.
251.73 Declaration of controversy: Initiation of arbitration
proceeding.
251.74 Deduction of costs of distribution proceedings.
Authority: 17 U.S.C. 801-803.
Subpart A--Organization
Sec. 251.1 Official address.
Copyright Office, Copyright Arbitration Royalty Panels, Library of
Congress, Washington, DC 20557-6400, (202) 707-8150
Sec. 251.2 Purpose of Copyright Arbitration Royalty Panels.
The Librarian of Congress, upon the recommendation of the Register
of Copyrights, may appoint and convene a Copyright Arbitration Royalty
Panel (CARP) for the following purposes:
(a) To make determinations concerning copyright royalty rates for
the cable compulsory license, 17 U.S.C. 111.
(b) To make determinations concerning copyright royalty rates for
the making and distributing of phonorecords, 17 U.S.C. 115.
(c) To make determinations concerning copyright royalty rates for
coinoperated phonorecord players (jukeboxes) whenever a negotiated
license authorized by 17 U.S.C. 116 expires or is terminated and is not
replaced by another such license agreement.
(d) To make determinations concerning royalty rates and terms for
the use by noncommercial educational broadcast stations of certain
copyrighted works, 17 U.S.C. 118.
(e) To distribute cable television, satellite carrier and digital
audio recording devices and media royalty fees under 17 U.S.C. 111,
119, and chapter 10, respectively, deposited with the Register of
Copyrights.
Sec. 251.3 Arbitrator lists.
(a) Any professional arbitration association or organization may
submit, before March 1, 1994 and before January 1 of each year
thereafter, a list of its members qualified to serve as arbitrators on
a Copyright Arbitration Royalty Panel. Such list shall contain the
following for each member:
(1) The full name, address and telephone number of the member.
(2) The current position and name of the member's employer, if any,
along with a brief summary of the member's employment history.
(3) A brief description of the educational background of the
member, including teaching positions and membership in professional
associations, if any.
(4) A description of the facts and information which qualify the
member to serve as an arbitrator under Sec. 251.4.
(5) Any other information which the professional arbitration
association or organization may consider relevant.
(b) After March 1, 1994, and after January 1 of each year
thereafter, the Librarian of Congress shall publish in the Federal
Register a list of all the members of professional arbitration
associations and organizations submitted to the Librarian who satisfy
the qualifications and requirements of this subchapter and can
reasonably be expected to be available to serve as an arbitrator to a
Copyright Arbitration Royalty Panel during that calendar year.
Sec. 251.4 Arbitrator lists: Objections.
(a) In the case of a rate adjustment proceeding, any party to the
proceeding may, during the 90-day period specified in Sec. 251.63, file
an objection with the Librarian of Congress to one or more of the
persons contained on the arbitrator list for that proceeding. Such
objection shall plainly state the grounds and reasons for each person
found to be objectionable.
(b) In the case of a royalty distribution proceeding, any party to
the proceeding may, during the time specified in Sec. 251.45(a), file
an objection with the Librarian of Congress to one or more of the
persons contained on the arbitrator list for the proceeding. Such
objection shall plainly state the grounds and reasons for each person
found to be objectionable.
Sec. 251.5 Qualifications of the arbitrators.
In order to serve as an arbitrator to a copyright arbitration
panel, a person must, at a minimum, have the following qualifications:
(a) Membership in a bar association of any state, territory, trust
territory or possession of the United States.
(b) Ten or more years of legal practice.
(c) Experience in conducting arbitration proceedings or
facilitating the resolution and settlement of disputes.
Sec. 251.6 Composition and selection of Copyright Arbitration Royalty
Panels.
(a) Within 10 days after publication of a notice in the Federal
Register initiating arbitration proceedings under this subchapter, the
Librarian of Congress shall, upon recommendation of the Register of
Copyrights, select 2 arbitrators from lists provided by professional
arbitration associations.
(b) The 2 arbitrators so selected shall, within 10 days of their
selection, choose a third arbitrator from the same lists. The third
arbitrator shall serve as the chairperson of the Panel during the
course of the proceedings.
(c) If the 2 arbitrators fail to agree upon the selection of the
third, the Librarian shall promptly select the third arbitrator from
the same lists.
(d) The third arbitrator so chosen shall serve as the chairperson
of the Panel during the course of the proceeding. In all matters,
procedural or substantive, the chairperson shall act according to the
majority wishes of the Panel.
(e) If for any reason one or more of the arbitrators selected by
the Librarian is unable to serve during the course of the proceedings,
the Librarian shall promptly appoint a replacement: Provided, that once
hearings have commenced, no such appointment shall be made and the
remaining arbitrators shall constitute a quorum necessary to the
determination of the proceeding.
Sec. 251.7 Actions of Copyright Arbitration Royalty Panels.
Any action of a Copyright Arbitration Royalty Panel requiring
publication in the Federal Register according to 17 U.S.C. or the rules
and regulations of this subchapter shall be published under the
authority of the Librarian of Congress and the Register of Copyrights.
Under no circumstances shall a CARP engage in rulemaking designed to
amend, supplement or supersede any of the rules and regulations of this
subchapter, or seek to have any such action published in the Federal
Register.
Subpart B--Public Access to Copyright Arbitration Royalty Panel
Meetings
Sec. 251.11 Open meetings.
(a) All meetings of a Copyright Arbitration Royalty Panel shall be
open to the public, with the exception of meetings that are listed in
Sec. 251.13.
(b) At the beginning of each proceeding, the CARP shall develop the
original schedule of the proceeding which shall be published in the
Federal Register at least 7 calendar days in advance of the first
meeting. Such announcement shall state the times, dates, and place of
the meetings, the testimony to be heard, whether any of the meetings
are to be closed, and, if so, which ones, and the name and telephone
number of the person to contact for further information.
(c) If changes are made to the original schedule, they will be
announced in open meeting and issued as orders to the parties
participating in the proceeding, and the changes will be noted in the
docket file of the proceeding. In addition, the contact person for the
proceeding shall make any additional efforts to publicize the change as
are practicable.
(d) If it is decided that the publication of the original schedule
must be made on shorter notice than 7 days, that decision must be made
by a recorded vote of the Panel and included in the announcement.
Sec. 251.12 Conduct of open meetings.
(a) Meetings of a Copyright Arbitration Royalty Panel will be
conducted in a manner to insure both the public's right to observe and
the ability of the Panel to conduct its business properly. The
chairperson will take whatever measures necessary to achieve that
purpose.
(b) The right of the public to be present does not include the
right to participate or make comments.
(c) Reasonable access for news media will be provided at all public
sessions, as long as it does not interfere with the comfort or
efficiency of the arbitrators or witnesses. Cameras will be admitted
only on the authorization of the chairperson, and no witness may be
photographed or have his or her testimony recorded for broadcast if he
or she objects.
Sec. 251.13 Closed meetings.
In the following circumstances, a Copyright Arbitration Royalty
Panel may close its meetings or withhold information from the public:
(a) If the matter to be discussed has been specifically authorized
to be kept secret by Executive Order, in the interests of national
defense or foreign policy; or
(b) If the matter relates solely to the internal practices of a
Copyright Arbitration Royalty Panel; or
(c) If the matter has been specifically exempted from disclosure by
statute (other than 5 U.S.C. 552) and there is no discretion on the
issue; or
(d) If the matter involves privileged or confidential trade secrets
or financial information; or
(e) If the result might be to accuse any person of a crime or
formally censure him or her; or
(f) If there would be clearly unwarranted invasion of personal
privacy; or
(g) If there would be disclosure of investigatory records compiled
for law enforcement, or information that if written would be contained
in such records, and to the extent disclosure would:
(1) Interfere with enforcement proceedings; or
(2) Deprive a person of the right to a fair trial or impartial
adjudication; or
(3) Constitute an unwarranted invasion of personal privacy; or
(4) Disclose the identity of a confidential source or, in the case
of a criminal investigation or a national security intelligence
investigation, disclose confidential information furnished only by a
confidential source; or
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or safety of law enforcement personnel.
(h) If premature disclosure of the information would frustrate a
Copyright Arbitration Royalty Panel's action, unless the Panel has
already disclosed the concept or nature of the proposed action, or is
required by law to make disclosure before taking final action; or
(i) If the matter concerns a CARP's participation in a civil action
or proceeding or in an action in a foreign court or international
tribunal, or an arbitration, or a particular case of formal agency
adjudication pursuant to 5 U.S.C. 554, or otherwise involving a
determination on the record after opportunity for a hearing; or
(j) If a motion or objection has been raised in an open meeting and
the Panel determines that it is in the best interest of the proceeding
to deliberate on such motion or objection in closed session.
Sec. 251.14 Procedure for closed meetings.
(a) Meetings may be closed, or information withheld from the
public, only by a recorded vote of a majority of arbitrators of a
Copyright Arbitration Royalty Panel. Each question, either to close a
meeting or to withhold information, must be voted on separately, unless
a series of meetings is involved, in which case the Panel may vote to
keep the discussions closed for 30 days, starting from the first
meetings. If the panel feels that information about a closed meeting
must be withheld, the decision to do so must also be the subject of a
recorded vote.
(b) Before a discussion to close a meeting or withhold information,
the chairperson of a CARP must certify that such an action is
permissible, and the chairperson shall cite the appropriate exemption
under Sec. 251.13. This certification shall be included in the
announcement of the meeting and be maintained as part of the record of
proceedings of the Panel.
(c) Following such a vote, the following information shall be
published in the Federal Register as soon as possible:
(1) The vote of each arbitrator; and
(2) The appropriate exemption under Sec. 251.13; and
(3) A list of all persons expected to attend the meeting and their
affiliation.
Sec. 251.15 Transcripts of closed meetings.
(a) All meetings closed to the public shall be subject either to a
complete transcript or, in the case of Sec. 251.13(h) and at the
discretion of the Copyright Arbitration Royalty Panel, detailed
minutes. Detailed minutes shall describe all matters discussed,
identify all documents considered, summarize action taken as well as
the reasons for it, and record all roll call votes as well as any views
expressed.
(b) Such transcripts or minutes shall be kept by the Copyright
Office for at least 2 years, or for at least 1 year after the
conclusion of the proceedings, whichever is later. Any portion of
transcripts of meetings which the chairperson of a CARP does not feel
is exempt from disclosure under Sec. 251.13 will ordinarily be
available to the public within 20 working days of the meeting.
Transcripts or minutes of closed meetings will be reviewed by the
chairperson at the end of the proceedings of the Panel and, if at that
time he or she determines that they should be disclosed, he or she will
resubmit the question to the Panel to gain authorization for their
disclosure.
Sec. 251.16 Requests to open or close meetings.
(a) Any person may request a Copyright Arbitration Royalty Panel to
open or close a meeting or disclose or withhold information. Such
request must be captioned ``Request to Open'' or ``Request to Close'' a
meeting on a specified date concerning a specific subject. The person
making the request must state his or her reasons, and include his or
her name, address, and telephone number.
(b) In the case of a request to open a meeting that a CARP has
previously voted closed, the Panel must receive the request within 3
working days of the meeting's announcement. Otherwise the request will
not be heeded, and the person making the request will be so notified.
An original and three copies of the request must be submitted.
(c) For a CARP to act on a request to open or close a meeting, the
question must be brought to a vote before the Panel. If the request is
granted, an amended meeting announcement will be issued and the person
making the request notified. If a vote is not taken, or if after a vote
the request is denied, said person will also be notified promptly.
Subpart C--Public Access to and Inspection of Records
Sec. 251.21 Public records.
(a) All official determinations of a Copyright Arbitration Royalty
Panel will be published in the Federal Register in accordance with
Sec. 251.7 and include the relevant facts and reasons for those
determinations.
(b) All records of a CARP, and all records of the Librarian of
Congress assembled and/or created under 17 U.S.C. 801 and 802, are
available for inspection and copying at the address provided in
Sec. 251.1 with the exception of:
(1) Records that relate solely to the internal personnel rules and
practices of the Copyright Office or the Library of Congress;
(2) Records exempted by statute from disclosure;
(3) Interoffice memoranda or correspondence not available by law
except to a party in litigation with a CARP, Copyright Office or
Library of Congress;
(4) Personnel, medical or similar files whose disclosure would be
an invasion of personal privacy;
(5) Communications among arbitrators of a Panel concerning the
drafting of decisions, opinions, reports, and findings on any Panel
matter or proceeding;
(6) Communications among the Librarian of Congress and staff of the
Copyright Office or Library of Congress concerning decisions, opinions,
reports, selection of arbitrators or findings on any matter or
proceeding conducted under 17 U.S.C. chapter 8;
(7) Offers of settlement which have not been accepted, unless they
have been made public by the offeror;
(8) Records not herein listed but which may be withheld as
``exempted'' if a CARP or the Librarian of Congress finds compelling
reasons for such action to exist.
Sec. 251.22 Public access.
(a) Location of Records. All records relating to rate adjustment
and distribution proceedings under this subchapter which are:
(1) Required to be filed with the Copyright Office; or
(2) Submitted to or produced by the Copyright Office or Library of
Congress under 17 U.S.C. 801 and 802, or
(3) Submitted to or produced by a Copyright Arbitration Royalty
Panel during the course of a concluded proceeding shall be maintained
at the Copyright Office. In the case of records submitted to or
produced by a CARP which is currently conducting a proceeding, such
records shall be maintained by the chairperson of that Panel at the
location of the hearing or at a location specified by the panel. Upon
conclusion of the proceeding, all records shall be delivered by the
chairperson to the Copyright Office.
(b) Requesting information. Requests for information or access to
records described in Sec. 251.21 shall be directed to the Copyright
Office at the address listed in Sec. 251.1. No requests shall be
directed to or accepted by a Copyright Arbitration Royalty Panel. In
the case of records in the possession of a CARP, the Copyright Office
shall make arrangements with the Panel for access and copying by the
person making the request.
(c) Fees. Fees for photocopies of CARP or Copyright Office records
are $0.40 per page, and fees for searching for records, certification
of documents, and other costs incurred are as provided in 17 U.S.C.
705, 708.
Sec. 251.23 FOIA and Privacy Act [Reserved]
Subpart D--Standards of Conduct [Reserved]
Subpart E--Procedures of Copyright Arbitration Royalty Panels
Sec. 251.40 Scope.
This subpart governs the proceedings of Copyright Arbitration
Royalty Panels for the adjustment of royalty rates and distribution of
royalty fees convened under 17 U.S.C. 803. This subpart does not apply
to other arbitration proceedings specified by 17 U.S.C., or to actions
or rulemakings of the Librarian of Congress or the Register of
Copyrights, except where expressly provided in the provisions of this
subpart.
Sec. 251.41 Formal hearings.
(a) The formal hearings that will be conducted under the rules of
this subpart are rate adjustment hearings and royalty fee distribution
hearings. All parties intending to participate in a hearing of a
Copyright Arbitration Royalty Panel must file a notice of their
intention. A CARP may also, on its own motion or on the petition of an
interested party, hold other proceedings it considers necessary to the
exercise of its functions, subject to the provisions of Sec. 251.7. All
such proceedings will be governed by the rules of this subpart.
(b) During the time periods provided in Sec. 251.45(a) and
Sec. 251.63, any party to the proceeding may petition the Librarian of
Congress to have the determination of the controversy rendered strictly
on the submission of written pleadings. Replies to such petitions may
be filed within 14 days. The Librarian, upon recommendation of the
Register of Copyright, shall rule on the petition prior to the
declaration of a controversy and initiation of a proceeding.
Sec. 251.42 Suspension or waiver of rules.
For purposes of an individual proceeding, the provisions of this
subpart may be suspended or waived, in whole or in part, by a Copyright
Arbitration Royalty Panel upon a showing of good cause, subject to the
provisions of Sec. 251.7. Such suspension or waiver shall apply only to
the proceeding of the CARP taking that action, and shall not be binding
on any other Panel or proceeding. Where procedures have not been
specifically prescribed in this subpart, and subject to Sec. 251.7, the
Panel shall follow procedures consistent with 5 U.S.C. chapter 5,
subchapter II.
Sec. 251.43 Written cases.
(a) The proceedings of a Copyright Arbitration Royalty Panel for
rate adjustment, royalty fee distribution, or arbitration conducted
under 17 U.S.C. 1010 shall begin with the filing of written direct
cases of the parties who have filed a notice of intent to participate
in the hearing.
(b) The written direct case shall include all testimony, including
each witness's background and qualifications, along with all the
exhibits to be presented in the direct case.
(c) Each party may designate a portion of past records, including
records of the Copyright Royalty Tribunal, that it wants included in
its direct case. Complete testimony of each witness whose testimony is
designated (i.e., direct, cross and redirect) must be referenced.
(d) In the case of a royalty fee distribution proceeding, each
party must state in the written direct case its percentage or dollar
claim to the fund. In the case of a rate adjustment proceeding, each
part 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 the filing of the proposed findings of fact and
conclusions of law.
(e) No evidence, including exhibits, may be submitted in the
written direct case without a sponsoring witness, except where the
Panel has taken official notice, or in the case of incorporation by
reference of past records, or for good cause shown.
(f) Written rebuttal cases of the parties shall be filed at a time
designated by a CARP upon conclusion of the hearing of the direct case
in the same form and manner as the direct case, except that the claim
or the requested rate shall not have to be included if it has not
changed from the direct case.
Sec. 251.44 Filing and service of written cases and pleadings.
(a) Copies filed with a Copyright Arbitration Royalty Panel. In all
filings with a Copyright Arbitration Royalty Panel, the submitting
party shall deliver, in such a fashion as the Panel shall direct, an
original and three copies to the Panel. The submitting party shall also
deliver one copy to the Copyright Office at the address listed in
Sec. 251.1. In the case of exhibits whose bulk or whose cost of
reproduction would unnecessarily encumber the record or burden the
party, a CARP may reduce the number of copies required by the Panel,
but a complete copy must still be submitted to the Copyright Office. In
no case shall a party tender any written case or pleading by facsimile
transmission.
(b) Copies filed with the Librarian of Congress. In all pleadings
filed with the Librarian of Congress, the submitting party shall
deliver an original and five copies to the Copyright Office. In no case
shall a party tender any pleading by facsimile transmission.
(c) English language translations. In all filings with a CARP or
the Librarian of Congress, each submission that is in a language other
than English shall be accompanied by an English-language translation,
duly verified under oath to be a true translation. Any other party to
the proceeding may, in response, submit its own English-language
translation, similarly verified.
(d) Affidavits. The testimony of each witness in a party's written
case, direct or rebuttal, shall be accompanied by an affidavit or a
declaration made pursuant to 28 U.S.C. 1746 supporting the testimony.
(e) Subscription and verification. (1) The original of all
documents filed by any party represented by counsel shall be signed by
at least one attorney of record and shall list the attorney's address
and telephone number. All copies shall be conformed. Except for
English-language translations, written cases, or when otherwise
required, documents signed by the attorney for a party need not be
verified or accompanied by an affidavit. The signature of an attorney
constitutes certification that he or she has read the document, that to
the best of his or her knowledge and belief there is good ground to
support it, and that it has been interposed for purposes of delay.
(2) The original of all documents filed by a party not represented
by counsel shall be both signed and verified by that party and list
that party's address and telephone number.
(3) The original of a document that is not signed, or is signed
with the intent to defeat the purpose of this section, may be stricken
as sham and false, and the matter shall proceed as though the document
had not been filed.
(f) Service. In all filings with a CARP or the Librarian of
Congress, a copy shall be served upon counsel of all other parties
identified in the service list, or, if the party is unrepresented by
counsel, upon the party itself. Proof of service shall accompany the
filing with the Panel or the Copyright Office. If a party files a
pleading that requests or would require action by the Panel or the
Librarian within 10 or fewer days after the filing, it must serve the
pleading upon all other counsel or parties by means no slower than
overnight express mail on the same day the pleading is filed.
Sec. 251.45 Discovery and prehearing motions.
(a) Precontroversy exchange of documents and discovery. In the case
of a royalty fee distribution proceeding, the Librarian of Congress
shall, after the time period for filing claims and before publication
of the notice initiating an arbitration proceeding under 17 U.S.C. 803,
designate a period for precontroversy exchange and discovery of
nonprivileged underlying documents related to the proceeding. In the
case of rate adjustment proceedings, the period for precontroversy
exchange and discovery of documents shall correspond with the 90-day
period specified in Sec. 251.63.
(b) Precontroversy motions and objections. During the time periods
specified in Sec. 251.45(a), as appropriate, any party to the
proceeding may file with the Librarian of Congress motions regarding
precontroversy exchange of documents or discovery, objections to any
party's royalty claim or petition, or motions for procedural or
evidentiary rulings, on any proper ground. Any party to the proceeding
wishing to file a response to such motion or objection may do so within
14 days. The Librarian, upon recommendation of the Register of
Copyrights, shall rule on the motion or objection prior to the
declaration of a controversy and initiation of an arbitration
proceeding.
(c) Discovery and motions filed with a Copyright Arbitration
Royalty Panel. (1) A Copyright Arbitration Royalty Panel shall
designate a period following the filing of the written direct and
rebuttal cases in which parties may request of an opposing party
nonprivileged underlying documents related to the written exhibits and
testimony.
(2) After the filing of the written cases, any party may file with
a CARP objections to any portion of another party's written case on any
proper ground including, without limitation, relevance, competency, and
failure to provide underlying documents. If an objection is apparent
from the face of a written case, that objection must be raised or the
party may thereafter be precluded from raising such an objection.
(d) Amended filings and discovery. In the case of objections filed
with either the Librarian of Congress or a CARP, each party may amend
its claim, petition, written case, or direct evidence to respond to the
objections raised by other parties, or to the requests of either the
Librarian or a Panel. Such amendments must be properly filed with the
Librarian or the CARP, wherever appropriate, and exchanged with all
parties. All parties shall be given a reasonable opportunity to conduct
discovery on the amended filings.
Sec. 251.46 Conduct of hearings: Role of arbitrators.
(a) At the opening of a hearing conducted by a Copyright
Arbitration Royalty Panel, the chairperson shall announce the subject
under consideration.
(b) Only the arbitrators of a CARP, or counsel as provided in this
chapter, shall question witnesses.
(c) Subject to the vote of the CARP, the chairperson shall have
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 Panel'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 or odd number of
arbitrators sitting at the hearing, it takes a majority vote to grant a
motion or sustain an objection. A split vote will result in the denial
of the 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 hearings.
(d) Each arbitrator may examine any witness or call upon any party
for the production of additional evidence at any time. Further
examination, cross-examination, or redirect examination by counsel
relevant to the inquiry initiated by an arbitrator may be allowed by a
Panel, but only to the limited extent that it is directly responsive to
the inquiry of the arbitrator.
Sec. 251.47 Conduct of hearings: Witnesses and counsel.
(a) With all due regard for the convenience of the witnesses,
proceedings shall be conducted as expeditiously as possible.
(b) In each distribution or rate adjustment proceeding, each party
may present its opening statement with the presentation of its direct
case.
(c) All witnesses shall be required to take an oath or affirmation
before testifying; however, attorneys who do not appear as witnesses
shall not be required to do so.
(d) Witnesses shall first be examined by their attorney and by
opposing attorneys for their competency to support their written
testimony and exhibits (voir dire).
(e) Witnesses may then summarize, highlight or read their
testimony. However, witnesses may not materially supplement or alter
their written testimony except to correct it, unless the Panel expands
the witness' testimony to complete the record.
(f) 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 nonprivileged underlying
documents. However, they may not raise objections that were apparent
from the face of a written case and could have been raised before the
hearing without leave from the Panel. See Sec. 251.45(c).
(g) All written testimony and exhibits will be received into the
record, except any to which the Panel sustains an objection; no
separate motion will be required.
(h) If the Panel rejects or excludes testimony and an offer of
proof is made, the offer of proof shall consist of a statement of the
substance of the evidence which it is contended would have been
adduced. 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.
(i) The Panel shall discourage the presentation of cumulative
evidence, and may limit the number of witnesses that may be heard on
behalf of any one party on any one issue.
(j) Parties are entitled to conduct cross-examination and redirect
examination. Cross-examination is limited to matters raised on direct
examination. Redirect examination is limited to matters raised on
cross-examination. The Panel, however, may limit cross-examination and
redirect examination if in its judgment this evidence or examination
would be cumulative or cause undue delay. Conversely, this subsection
does not restrict the discretion of the Panel to expand the scope of
cross-examination or redirect examination.
(k) Documents that have not been exchanged in advance may be shown
to a witness on cross-examination. However, copies of such documents
must be distributed to the Panel and to other participants or their
counsel at hearing before being shown to the witness at the time of
cross-examination, unless the Panel 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 and cannot itself be relied upon in findings of fact as
rebutting the witness' direct testimony. However, upon leave from the
Panel, the document may be admitted as evidence without a sponsoring
witness if official notice is proper, or if, in the Panel's view, the
cross-examined witness is the proper sponsoring witness.
(l) A CARP will encourage individuals or groups with the same or
similar interests in a proceeding to select a single representative to
conduct their examination and cross-examination for them. However, if
there is no agreement on the selection of a representative, each
individual or group will be allowed to conduct its own examination and
cross-examination, but only on issues affecting its particular
interests, provided that the questioning is not repetitious or
cumulative of the questioning of their parties within the group.
Sec. 251.48 Rules of evidence.
(a) Admissibility. In any public hearing before a Copyright
Arbitration Royalty Panel, evidence that is not unduly repetitious or
cumulative and is relevant and material shall be admissible. The
testimony of any witness will not be considered evidence in a
proceeding unless the witness has been sworn.
(b) Documentary evidence. Evidence that is submitted in the form of
documents or detailed data and information shall be presented as
exhibits. 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. 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. If the Panel desires, a true copy of the
material and relevant matter may be presented in extract form, and
submitted as evidence. Anyone presenting documents as evidence must
present copies to all other participants at the hearing 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.
(c) Documents filed with a Copyright Arbitration Royalty Panel or
Copyright Office. If the matter offered in evidence is contained in
documents already on file with a Copyright Arbitration Royalty Panel or
the Copyright Office, the documents themselves need not be produced,
but may instead be referred to according to how they have been filed.
(d) Public documents. If a public document such as an official
report, decision, opinion, or published scientific or economic data, is
offered in evidence either in whole or in part, and if the document has
been issued by an Executive Department, a legislative agency or
committee, or a Federal administrative agency (Government-owned
corporations included), and is proved by the party offering it to be
reasonably available to the public, the document need not be produced
physically, but 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 Copyright Arbitration Royalty
Panel.
(f) 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:
(1) Sample surveys. (i) 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
(ii) An explanation of the method of selecting the sample and of
which characteristics were measured or counted.
(2) Econometric investigations. (i) A complete description of the
econometric model, the reasons for each assumption, and the reasons for
the statistical specification;
(ii) A clear statement of how any changes in the assumptions might
affect the final result; and
(iii) Any available alternative studies, if requested, which employ
alternative models and variables.
(3) Experimental analysis. (i) A complete description of the
design, the controlled conditions, and the implementation of controls;
and
(ii) A complete description of the methods of observation and
adjustment of observation.
(4) Studies involving statistical methodology. (i) The formula used
for statistical estimates;
(ii) The standard error for each component;
(iii) The test statistics, the description of how the tests were
conducted, related computations, computer programs and all final
results; and
(iv) Summarized descriptions of input data and, if requested, the
input data itself.
Sec. 251.49 Transcript and record.
(a) An official reporter for the recording and transcribing of
hearings shall be designated by the Librarian of Congress from time to
time. Anyone wishing to inspect the transcript of a hearing may do so
at a location specified by the chairperson of the Copyright Arbitration
Royalty Panel conducting the hearing. Anyone wishing a copy of the
transcript must purchase it from the official reporter.
(b) The transcript of testimony and all exhibits, papers, and
requests filed in the proceeding shall constitute the official written
record. Such record shall accompany the report of the determination of
the CARP to the Librarian of Congress required by 17 U.S.C. 802(e).
(c) The record, including the report of the determination of a
CARP, shall be available at the Copyright Office for public inspection
and copying in accordance with Sec. 251.22.
Sec. 251.50 Rulings and orders.
In accordance with 5 U.S.C., subchapter II, a Copyright Arbitration
Royalty Panel may issue rulings or orders, either on its own motion or
that of an interested party, necessary to the resolution of issues
contained in the proceeding before it; Provided, That no such rules or
orders shall amend, supplement or supersede the rules and regulations
contained in this subchapter. See Sec. 251.7.
Sec. 251.51 Closing the hearing.
To close the record of hearing, the chairperson of a Copyright
Arbitration Royalty Panel shall make an announcement that the taking of
testimony has concluded. In its discretion the Panel may close the
record as of a future specified date, and allow 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 been recessed may not be closed by the
chairperson before the day on which the hearing is to resume, except
upon 10 days' notice to all parties.
Sec. 251.52 Proposed findings and conclusions.
(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
chairperson to do so. Such filings, and any replies to them, shall take
place at such time after the record has been closed as the chairperson
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 separately. Proposed findings submitted by someone other than an
applicant in a proceeding shall be restricted to those issues
specifically affecting that person.
Sec. 251.53 Report to the Librarian of Congress.
(a) At any time after the filing of proposed findings of fact and
conclusions of law specified in Sec. 251.52, and not later than 180
days from publication in the Federal Register of notification of
commencement of the proceeding, a Copyright Arbitration Royalty Panel
shall deliver to the Librarian of Congress a report incorporating its
written determination. Such determination shall be accompanied by the
written record, and shall set forth the facts that the Panel found
relevant to its determination.
(b) The determination of the Panel shall be certified by the
chairperson and signed by all of the arbitrators. Any dissenting
opinions shall be certified and signed by the arbitrator so dissenting.
(c) At the same time as the submission to the Librarian of
Congress, the chairperson of the Panel shall cause a copy of the
determination to be delivered to all parties participating in the
proceeding.
(d) The Librarian of Congress shall make the report of the CARP and
the accompanying record available for public inspection and copying.
Sec. 251.54 Assessment of costs of Arbitration Panels.
(a) After the conclusion of the proceeding and the delivery of the
report of the determination of the Copyright Arbitration Royalty Panel,
the Panel may assess its costs to the participants to the proceeding.
(1) In the case of a rate adjustment proceeding, the parties to the
proceeding shall bear the entire cost thereof in such manner and
proportion as the Panel shall direct.
(2) In the case of a royalty distribution proceeding, the parties
to the proceeding shall bear the cost of the proceeding in direct
proportion to their share of the distribution.
(b) The chairperson of the Panel shall cause to be delivered to
each participating party a statement of the total costs of the
proceeding, the party's share of the total cost, and the amount owed by
the party to each arbitrator.
(c) All parties to a proceeding shall have 30 days from receipt of
the statement of costs and bill for payment in which to tender payment
to the arbitrators. Payment should be in the form of a money order,
check, or bank draft. Failure to submit timely payment may submit the
nonpaying party to the provisions of the Debt Collection Act of 1982,
including disclosure to consumer credit reporting agencies and referral
to collection agencies.
Sec. 251.55 Post-Panel motions.
(a) Any party to the proceeding may file with the Librarian of
Congress a petition to modify or set aside the determination of a
Copyright Arbitration Royalty Panel within 14 days of the Librarian's
receipt of the Panel's report of its determination. Such petition shall
state the reasons for modification or reversal of the Panel's
determination, and shall include applicable sections of the party's
proposed findings of fact and conclusions of law.
(b) Replies to petitions to modify or set aside shall be filed
within 14 days of the filing of such petitions.
Sec. 251.56 Order of the Librarian of Congress.
(a) After the filing of post-Panel motions, see Sec. 251.55, but
within 60 days from receipt of the report of the determination of a
Panel, the Librarian of Congress shall issue an order accepting the
Panel's determination or substituting the Librarian's own
determination. The Librarian shall adopt the determination of the Panel
unless he or she finds that the determination is arbitrary or contrary
to the applicable provisions of 17 U.S.C.
(b) If the Librarian substitutes his or her own determination, the
order shall set forth the reasons for not accepting the Panel's
determination, and shall set forth the facts which the Librarian found
relevant to his or her determination.
(c) The Librarian shall cause a copy of the order to be delivered
to all parties participating in the proceeding. The librarian shall
also publish the order, and the determination of the Panel, in the
Federal Register .
Sec. 251.57 Effective date of order.
An order of determination issued by the Librarian under Sec. 251.56
shall become effective 30 days following its publication in the Federal
Register, unless an appeal has been filed pursuant to Sec. 251.58 and
notice of the appeal has been served on all parties to the proceeding.
Sec. 251.58 Judicial review.
(a) Any order of determination issued by the Librarian of Congress
under Sec. 251.55 may be appealed, by any aggrieved party who would be
bound by the determination, to the United States Court of Appeals for
the District of Columbia Circuit, within 30 days after publication of
the order in the Federal Register.
(b) If no appeal is brought within the 30 day period, the order of
determination of the Librarian is final, and shall take effect as set
forth in the order.
(c) The pendency of any appeal shall not relieve persons obligated
to make royalty payments under 17 U.S.C. 111, 115, 116, 118, 119, or
1003, and who would be affected by the determination on appeal, from
depositing statements of account and royalty fees specified by those
sections.
Subpart F--Rate Adjustment Proceedings
Sec. 251.60 Scope.
This subpart governs only those proceedings dealing with royalty
rate adjustments affecting cable television (17 U.S.C. 111), the
production of phonorecords (17 U.S.C. 115), performances on coin-
operated phonorecord players (jukeboxes) (17 U.S.C. 116), noncommercial
educational broadcasting (17 U.S.C. 118), and audio home recording
devices and media (17 U.S.C. chapter 10). Those provisions of subpart E
of this part generally regulating the conduct of proceedings shall
apply to rate adjustment proceedings, unless they are inconsistent with
the specific provisions of this subpart.
Sec. 251.61 Commencement of adjustment proceedings.
(a) In the case of cable television, phonorecords, coin-operated
phonorecord players (jukeboxes) and audio home recording devices and
media, rate adjustment proceedings shall commence with the filing of a
petition by an interested party according to the following schedule:
(1) Cable Television: During 1995, and each subsequent fifth
calendar year.
(2) Phonorecords: During 1997 and each subsequent 10th calendar
year.
(3) Coin-operated phonorecord players (jukeboxes): Within one year
of the expiration or termination of a negotiated license authorized by
17 U.S.C. 116.
(4) Audio home recording devices and media: From October 29, 1997
to October 28, 1998, and not more than once each year thereafter.
(b) Cable rate adjustment proceedings may also be commenced by the
filing of a petition, according to 17 U.S.C. 801(b)(2) (B) and (C), if
the Federal Communications Commission amends certain of its rules with
respect to the carriage by cable systems of broadcast signals, or with
respect to syndicated and sports programming exclusivity.
(c) In the case of noncommercial educational broadcasting, a
petition is not necessary for the commencement of proceedings.
Proceedings commence with the publication of a notice of the initiation
of arbitration proceedings in the Federal Register on June 30, 1997,
and at 5 year intervals thereafter.
Sec. 251.62 Content of petition.
(a) In the case of a petition for rate adjustment proceedings for
cable television, phonorecords, and coin-operated phonorecord players
(jukeboxes), the petition shall detail the petitioner's interest in the
royalty rate sufficiently to permit the Librarian of Congress to
determine whether the petitioner has a ``significant interest'' in the
matter. The petition must also identify the extent to which the
petitioner's interest is shared by other owners or users; owners or
users with similar interests may file a petition jointly.
(b) In the case of a petition for rate adjustment proceedings as
the result of a Federal Communications Commission rule change, the
petition shall also set forth the actions of the Federal Communications
Commission on which the petition for a rate adjustment is based.
Sec. 251.63 Period for consideration.
To allow time for parties to settle their differences regarding
rate adjustments, the Librarian of Congress shall, after the filing of
a petition, or prior to a rate adjustment made under 17 U.S.C. 118(b),
designate a 90-day period for consideration. The Librarian shall cause
notice of the consideration period to be published in the Federal
Register, and such notice shall include the effective dates of that
period.
Sec. 251.64 Disposition of petition: Initiation of arbitration
proceeding.
At the end of the 90-day period, and after the Librarian has
resolved all motions filed during that period under Sec. 251.45(b), the
Librarian shall determine the sufficiency of the petition including,
where appropriate, whether one or more of the petitioners' interests
are ``significant.'' If the Librarian determines that a petition is
sufficient, he/she shall cause to be published in the Federal Register
a declaration of a controversy accompanied by a notice of initiation of
an arbitration proceeding. The same declaration and notice of
initiation shall be made for noncommercial educational broadcasting in
accordance with 17 U.S.C. 118 (b) and (c). Such notice shall, to the
extent feasible, describe the nature, general structure, and schedule
of the proceeding.
Sec. 251.65 Deduction of costs of rate adjustment proceedings.
In accordance with 17 U.S.C. 802(h)(1), the Librarian of Congress
and the Register of Copyrights may assess the reasonable costs incurred
by the Library of Congress and the Copyright Office as a result of the
rate adjustment proceedings directly to the parties participating in
the proceedings.
Subpart G--Royalty Fee Distribution Proceedings
Sec. 251.70 Scope.
This subpart governs only those proceedings dealing with
distribution of royalty payments deposited with the Register of
Copyrights for cable television (17 U.S.C. 111), satellite carrier (17
U.S.C. 119), and digital audio recording devices and media (17 U.S.C.
chapter 10). Those provisions of subpart E generally regulating the
conduct of proceedings shall apply to royalty fee distribution
proceedings, unless they are inconsistent with the specific provisions
of this subpart.
Sec. 251.71 Commencement of proceedings.
(a) Cable television. In the case of royalty fees collected under
the cable compulsory license (17 U.S.C. 111), any person claiming to be
entitled to such fees must file a claim with the Copyright Office
during the month of July each year in accordance with the requirements
of this subchapter.
(b) Satellite carriers. In the case of royalty fees collected under
the satellite carrier compulsory license (17 U.S.C. 119), any person
claiming to be entitled to such fees must file a claim with the
Copyright Office during the month of July each year in accordance with
the requirements of this subchapter.
(c) Digital audio recording devices and media. In the case of
royalty payments for the importation and distribution in the United
States, or the manufacture and distribution in the United States, of
any digital recording device or medium, any person claiming to be
entitled to such payments must file a claim with the Copyright Office
during the month of January or February each year in accordance with
the requirements of this subchapter.
Sec. 251.72 Determination of controversy.
(a) Cable television. After the first day of August each year, the
Librarian of Congress shall determine whether a controversy exists
among the claimants of cable television compulsory license royalty
fees. In order to determine whether a controversy exists, and to
facilitate agreement among the claimants as to the proper distribution,
the Librarian may request public comment or conduct public hearings,
whichever he or she deems necessary. All requests for information and
notices of public hearings shall be published in the Federal Register,
along with a description of the general structure and schedule of the
proceeding.
(b) Satellite carriers. After the first day of August of each year,
the Librarian shall determine whether a controversy exists among the
claimants of the satellite carrier compulsory license royalty fees. In
order to determine whether a controversy exists, and to facilitate
agreement among the claimants as to the proper distribution, the
Librarian may request public comment or conduct public hearings,
whichever he or she deems necessary. All requests for information and
notices of public hearings shall be published in the Federal Register,
along with a description of the general structure and schedule of the
proceeding.
(c) Digital audio recording devices and media. Within 30 days after
the last day of February each year, the Librarian of Congress shall
determine whether a controversy exists among the claimants of digital
audio recording devices and media royalty payments as to any Subfund of
the Sound Recording Fund or the Musical Works Fund as set forth in 17
U.S.C. 1006(b) (1) and (2). In order to determine whether a controversy
exists, and to facilitate agreement among the claimants as to the
proper distribution, the Librarian may request public comment or
conduct public hearings, whichever he or she deems necessary. All
requests for information and notices of public hearings shall be
published in the Federal Register, along with a description of the
general structure and schedule of the proceeding.
Sec. 251.73 Declaration of controversy: Initiation of arbitration
proceeding.
If the Librarian determines that a controversy exists among the
claimants to either cable television, satellite carrier, or digital
audio recording devices and media royalties, the Librarian shall
publish in the Federal Register a declaration of controversy along with
a notice of initiation of an arbitration proceeding. Such notice shall,
to the extent feasible, describe the nature, general structure and
schedule of the proceeding.
Sec. 251.74 Deduction of costs of distribution proceedings.
Pursuant to 17 U.S.C. 802(h)(1), the Librarian of Congress and the
Register of Copyrights may, before any distributions of cable
television royalty fees are made, deduct the reasonable costs incurred
by the Library of Congress and the Copyright Office as a result of the
distribution proceedings.
3. Part 302 of chapter III is removed.
3a. A new part 252 is added to subchapter B of chapter II to read
as follows:
PART 252--FILING OF CLAIMS TO CABLE ROYALTY FEES
Sec.
252.1 Scope.
252.2 Time of filing.
252.3 Content of claims.
252.4 Compliance with statutory dates.
252.5 Proof of fixation of works.
Authority: 17 U.S.C. 111(d)(4), 801, 803.
Sec. 252.1 Scope.
This part prescribes procedures under 17 U.S.C. 111(d)(4)(A),
whereby parties claiming to be entitled to cable compulsory license
royalty fees shall file claims with the Copyright Office.
Sec. 252.2 Time of filing.
During the month of July each year, any party claiming to be
entitled to cable compulsory license royalty fees for secondary
transmissions of one or more of its works during the preceding calendar
year shall file a claim to such fees with the Copyright Office. No
royalty fees shall be distributed to a party for secondary
transmissions during the specified period unless such party has timely
filed a claim to such fees. Claimants may file claims jointly or as a
single claim.
Sec. 252.3 Content of claims.
(a) Claims filed by parties claiming to be entitled to cable
compulsory license royalty fees shall include the following
information:
(1) The full legal name of the person or entity claiming royalty
fees.
(2) The telephone number, facsimile number, if any, and full
address, including a specific number and street name or rural route, of
the place of business of the person or entity.
(3) If the claim is a joint claim, a concise statement of the
authorization for the filing of the joint claim. For this purpose a
performing rights society shall not be required to obtain from its
members or affiliates separate authorizations, apart from their
standard agreements.
(4) A general statement of the nature of the claimant's copyrighted
works and identification of at least one secondary transmission by a
cable system establishing a basis for the claim.
(b) Claims shall bear the original signature of the claimant or of
a duly authorized representative of the claimant.
(c) In the event that the legal name and/or address of the claimant
changes after the filing of the claim, the claimant shall notify the
Copyright Office of such change within 30 days of the change, or the
claim may be subject to dismissal.
(d) In the event that, after filing an individual claim, a claimant
chooses to negotiate a joint claim, either the particular joint
claimant or the individual claimant shall notify the Copyright Office
of such change within 14 days from the making of the agreement.
(e) All claimants filing a joint claim shall make available to the
Copyright Office, other claimants, and, where applicable, a Copyright
Arbitration Royalty Panel, a list of all individual claimants covered
by the joint claim.
Sec. 252.4 Compliance with statutory dates.
Claims filed with the Copyright Office shall be considered timely
filed only if:
(a) They are received in the offices of the Copyright Office during
normal business hours during the month of July, or
(b) They are properly addressed to the Copyright Office, see
Sec. 251.1, and they are deposited with sufficient postage with the
United States Postal Service and bear a July U.S. postmark. Claims
dated only with a business meter that are received after July 31 will
not be accepted as having been filed during the month of July. No claim
may be filed by facsimile transmission.
Sec. 252.5 Proof of fixation of works.
In any proceeding for the distribution of cable television royalty
fees, the Copyright Office shall not require the filing by claimants of
tangible fixations of works in whole or in part. In the event of a
controversy concerning the actual fixation of a work in a tangible
medium of expression as required by the Copyright Code, the Copyright
Arbitration Royalty Panel conducting the distribution proceeding shall
resolve such controversy on the basis of affidavits by appropriate
operational personnel and other appropriate documentary evidence, and
such oral testimony as the Panel may deem necessary. Affidavits
submitted by claimants should establish that the work for which the
claim is submitted was fixed in its entirety, and should state the
nature of the work, the title of the program, the duration of the
program, and the date of fixation. No such affidavits need be filed
with a Copyright Arbitration Royalty Panel unless requested by that
Panel.
4. Part 303--ACCESS TO PHONORECORD PLAYERS (JUKEBOXES) of chapter
III is removed.
5. Part 304 of chapter III is transferred to subchapter B of
chapter II and is redesignated as part 253.
6. The heading for part 253 is revised to read as follows:
PART 253--USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH
NONCOMMERCIAL EDUCATIONAL BROADCASTING
7. The authority citation to part 253 is revised to read as
follows:
Authority: 17 U.S.C. 118, 801(b)(1) and 803.
Sec. 253.4 [Amended]
8. Section 253.4 is amended in the introductory text of the section
by removing ``Secs. 304.5 and 304.6'' and adding ``Secs. 253.5 and
253.6''.
Sec. 253.8 [Amended]
9. Section 253.8(e) is amended by removing ``CRT'' each place it
appears and adding ``Copyright Office''.
Sec. 253.9 [Amended]
10. Section 253.9 is amended by removing ``CRT'' and adding
``Copyright Office''.
Sec. 253.10 [Amended]
11. Section 253.10 is amended by removing ``CRT'' each place it
appears and adding ``Copyright Office''.
Sec. 253.10 [Amended]
11a. Section 253.10(b) is amended by removing ``Sec. 304.5'' and
adding ``Sec. 253.5''.
Sec. 253.10 [Amended]
11b. Section 253.10(c) is amended by removing ``Sec. 304.5'' and
adding ``Sec. 253.5''.
Sec. 253.12 [Amended]
12. Section 253.12, ``Amendment of certain regulations'' and
253.13, ``Issuance of interpretative regulations'' are removed.
PART 305-- [REMOVED]
13. Part 305--CLAIMS TO PHONORECORD PLAYER (JUKEBOX) ROYALTY FEES
of chapter III is removed.
14. Part 306 is transferred to chapter II, subchapter B and is
redesignated as part 254.
15. The heading for part 254 is revised to read as follows:
PART 254--ADJUSTMENT OF ROYALTY RATE FOR COIN OPERATED PHONORECORD
PLAYERS
16. The authority citation for part 254 is revised to read as
follows:
Authority: 17 U.S.C. 116. 801(b)(1).
Sec. 254.1 [Amended]
17. Section 254.1 is amended by removing ``306'' and adding ``254''
and by removing ``and 804(a)''.
18. Part 307 of chapter III is transferred to subchapter B of
chapter II and is redesignated as part 255.
19. The heading for part 255 is revised to read as follows:
PART 255--ADJUSTMENT OF ROYALTY PAYABLE UNDER COMPULSORY LICENSE
FOR MAKING AND DISTRIBUTING PHONORECORDS
20. The authority citation for part 255 is revised to read as
follows:
Authority: 17 U.S.C. 801(b)(1) and 803.
Sec. 255.1 [Amended]
21. Section 255.1 is amended by removing ``307'' and adding
``255''.
Sec. 255.2 [Amended]
22. Section 255.2 is amended by removing ``Sec. 307.3'' and adding
``Sec. 255.3''.
Sec. 255.3 [Amended]
23. Section 255.3 is amended in paragraph (g)(1) by removing
``Copyright Royalty Tribunal'' and in paragraphs (g)(1) and (g)(2) by
removing ``CRT'' each place it appears and adding ``Librarian of
Congress'' in each place respectively.
24. Part 308 of chapter III is transferred to subchapter B of
chapter II and is redesignated as part 256.
25. The heading for part 256 is revised to read as follows:
PART 256--ADJUSTMENT OF ROYALTY FEE FOR CABLE COMPULSORY LICENSE
26. Part 309 of chapter III is transferred to subchapter B of
chapter II and is redesignated as part 257.
27. Part 257 is revised to read as follows:
PART 257--FILING OF CLAIMS TO SATELLITE CARRIER ROYALTY FEES
Sec.
257.1 General.
257.2 Time of filing.
257.3 Content of claims.
257.4 Compliance with statutory dates.
257.5 Proof of fixation of works.
257.6 Separate claims required.
Authority: 17 U.S.C. 119.
Sec. 257.1 General.
This part prescribes the procedures under 17 U.S.C. 119(b)(4)
whereby parties claiming to be entitled to compulsory license royalty
fees for secondary transmissions by satellite carriers of television
broadcast signals to the public for private home viewing shall file
claims with the Copyright Office.
Sec. 257.2 Time of filing.
During the month of July each year, any party claiming to be
entitled to compulsory license royalty fees for secondary transmissions
by satellite carriers during the previous calendar year of television
broadcast signals to the public for private home viewing shall file a
claim with the Copyright Office. No royalty fees shall be distributed
to any party during the specified period unless such party has timely
filed a claim to such fees. Claimants may file jointly or as a single
claim.
Sec. 257.3 Content of claims.
(a) Claims filed for satellite carrier compulsory license royalty
fees shall include the following information:
(1) The full legal name of the person or entity claiming compulsory
license royalty fees.
(2) The telephone number. facsimile number, if any, and full
address, including a specific number and street name or rural route, of
the place of business of the person or entity.
(3) If the claim is a joint claim, a concise statement of the
authorization for the filing of the joint claim. For this purpose, a
performing rights society shall not be required to obtain from its
members or affiliates separate authorizations, apart from their
standard membership or affiliate agreements.
(4) A general statement of the nature of the claimant's copyrighted
works and identification of a least one secondary transmission by a
satellite carrier establishing a basis for the claim.
(b) Claims shall bear the original signature of the claimant or of
a duly authorized representative of the claimant.
(c) In the event that the legal name and/or full address of the
claimant changes after the filing of the claim, the claimant shall
notify the Copyright Office of such change within 30 days of the
change, or the claim may be subject to dismissal.
(d) In the event that, after filing an individual claim, an
interested copyright party chooses to negotiate a joint claim, either
the particular joint claimants or individual claimant shall notify the
Copyright Office of such change within 14 days from the making of the
agreement.
(e) All claimants filing a joint claim shall make available to the
Copyright Office, other claimants, and, where applicable, a Copyright
Arbitration Royalty Panel, a list of all individual claimants covered
by the joint claim.
Sec. 257.4 Compliance with statutory dates.
Claims filed with the Copyright Office shall be considered timely
filed only if:
(a) They are received in the offices of the Copyright Office during
normal business hours during the month of July, or
(b) They are properly addressed to the Copyright Office, see
Sec. 251.1, and they are deposited with sufficient postage with the
United States Postal Service and bear a July U.S. postmark. Claims
dated only with a business meter that are received after July 31 will
not be accepted as having been filed during the month of July. No claim
may be filed by facsimile transmission.
Sec. 257.5 Proof of fixation of works.
In any proceeding for the distribution of satellite carrier royalty
fees, the Copyright Office shall not require the filing by claimants of
tangible fixations of works in whole or in part. In the event that a
controversy concerning the actual fixation of a work in a tangible
medium of expression as required by the Copyright Code, the Copyright
Arbitration Royalty Panel conducting the distribution proceeding shall
resolve such controversy on the basis of affidavits by appropriate
operational personnel and other appropriate documentary evidence, and
by such oral testimony as the Panel may deem necessary. Affidavits
submitted by claimants should establish that the work for which the
claim was submitted was fixed in its entirety, and should state the
nature of the work, the title of the program, the duration of the
program, and the date of fixation. No such affidavits need be filed
with a CARP unless requested by that Panel.
Sec. 257.6 Separate claims required.
If a party intends to file claims for both cable compulsory license
and satellite carrier compulsory license royalty fees during the same
month of July, that party must file separate claims with the Copyright
Office. Any single claim which purports to file for both cable and
satellite carrier royalty fees will be dismissed.
28. Part 310 of chapter III is transferred to subchapter B of
chapter II and is redesignated as part 258.
29. The heading for part 258 is revised to read as follows:
PART 258--ADJUSTMENT OF ROYALTY FEE FOR SECONDARY TRANSMISSIONS BY
SATELLITE CARRIERS
29a. The authority citation for part 258 continues to read as
follows:
Authority: 17 U.S.C. 119(c)(3)(F).
Sec. 258.1 [Amended]
30. Section 258.1 is amended by removing ``310'' and adding
``258''.
Sec. 258.2 [Amended]
31. Section 258.2 is amended by removing ``Sec. 310(3)(b)'' and
adding ``Sec. 258(3)(b)''.
32. Part 311 of chapter III is transferred to subchapter B of
chapter II and is redesignated as Part 259.
33. The heading for part 259 is revised to read as follows:
PART 259--FILING OF CLAIMS TO DIGITAL AUDIO RECORDING DEVICES AND
MEDIA ROYALTY PAYMENTS
33a. The authority citation for part 259 is revised to read as
follows:
Authority: 17 U.S.C. 1007(a)(1).
Sec. 259.1 [Amended]
34. Section 259.1 is amended by removing ``Copyright Royalty
Tribunal'' and adding ``Copyright Office''.
Sec. 259.2 [Amended]
35. Section 259.2 is amended by removing ``Copyright Royalty
Tribunal'' each place it appears and adding ``Copyright Office''.
Sec. 259.3 [Amended]
36. Section 259.3 is amended by removing ``Copyright Royalty
Tribunal'' each place it appears and adding ``Copyright Office''.
Sec. 259.4 [Amended]
37. Section 259.4 is amended by removing ``Copyright Royalty
Tribunal'' each place it appears and adding ``Copyright Office''.
Sec. 259.5 [Amended]
38. Section 259.5 is amended by removing ``Copyright Royalty
Tribunal'' each place it appears and adding ``Copyright Office''.
Sec. 259.5b [Amended]
39. Section 259.5(b) is amended by removing ``1825 Connecticut
Avenue, NW., suite 918, Washington, DC 20009'' and adding ``Copyright
Office, see Sec. 251.1.''.
Sec. 259.6 [Removed]
40. Section 259.6 is removed.
Dated: January 11, 1994.
Barbara A. Ringer,
Acting Register of Copyrights.
James H. Billington,
The Librarian of Congress.
[FR Doc. 94-1199 Filed 1-14-94; 8:45 am]
BILLING CODE 1410-09-M