[Federal Register: July 1, 1998 (Volume 63, Number 126)]
[Notices]
[Page 35984]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy98-113]
[[Page 35984]]
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LIBRARY OF CONGRESS
Copyright Office
[Docket No. 96-4 CARP DPRA]
Digital Phonorecord Delivery Rate Adjustment Proceeding
AGENCY: Copyright Office, Library of Congress.
ACTION: Notices of intent to participate.
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SUMMARY: The Library of Congress is requesting that those parties
interested in participating in a Copyright Arbitration Royalty Panel
(``CARP'') proceeding for establishing rates and terms for digital
phonorecord deliveries file a Notice of Intent to Participate. Those
parties who have already filed such a notice need not file again.
DATES: Notices of Intent to Participate are due July 31, 1998.
ADDRESSES: Notices of Intent to Participate, when sent by mail, should
be addressed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box
70977, Southwest Station, Washington, DC 20024. If hand delivered, they
should be brought to: Office of the General Counsel, Copyright Office,
James Madison Memorial Building, Room LM-407, First and Independence
Avenues, SE, Washington, DC.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
William Roberts, Senior Attorney for Compulsory Licenses, Copyright
Arbitration Royalty Panels, P.O. Box 70977, Southwest Station,
Washington, DC 20024. Telephone: (202) 707-8380. Facsimile: (202) 707-
8366.
SUPPLEMENTARY INFORMATION:
Background
On November 1, 1995, Congress passed the Digital Performance Right
in Sound Recordings Act of 1995 (``Digital Performance Act''). Public
Law 104-39, 109 Stat. 336. Among other things, it confirms and
clarifies that the scope of the compulsory license to make and
distribute phonorecords of nondramatic musical compositions includes
the right to distribute or authorize distribution by means of a digital
transmission which constitutes a ``digital phonorecord delivery.'' 17
U.S.C. 115(c)(3)(A). A ``digital phonorecord delivery'' is defined as
each individual delivery of a phonorecord by digital transmission of a
sound recording which results in a specifically identifiable
reproduction by or for any transmission recipient. * * '' 17 U.S.C.
115(d).
The Digital Performance Act established that the rate for all
digital phonorecord deliveries made or authorized under a compulsory
license on or before December 31, 1997, is the same rate in effect for
the making and distribution of physical phonorecords. 17 U.S.C.
115(c)(3)(A)(i). For digital phonorecord deliveries made or authorized
after December 31, 1997, the Digital Performance Act established a
process that may take two-steps for determining the terms and rates. 17
U.S.C. 115(c)(3)(A)(ii). The first step in the process is a voluntary
negotiation period initiated by the Librarian of Congress to enable
copyright owners and users of the section 115 digital phonorecord
delivery license to negotiate the terms and rates of the license. The
Librarian initiated this period on July 17, 1996, and directed it to
end on December 31, 1996. 61 FR 37213 (July 17, 1996).
The second step of the process is the convening of a CARP to
determine reasonable terms and rates for digital phonorecord deliveries
for parties not subject to a negotiated agreement. In the July 17,
1996, Federal Register notice, the Library stated that CARP proceedings
would begin, in accordance with the rules of 37 CFR part 251, on
January 31, 1997. 61 FR 37214 (July 17, 1996). The Library also
directed those parties not subject to a negotiated agreement to file
their petitions to convene a CARP, as required by 17 U.S.C.
115(c)(3)(D), by January 10, 1997, and their Notices of Intent to
Participate in CARP proceedings by January 17, 1997. Id. In addition,
the Library directed interested parties to comment by November 8, 1996,
on the possibility of consolidating the CARP proceeding to determine
terms and rates for digital phonorecord deliveries with the proceeding
to adjust the mechanical royalty rate for the making and distributing
of physical phonorecords. 61 FR 37215 (July 17, 1996).
On November 8, 1996, the Library received a joint motion from the
Recording Industry Association of America (``RIAA''), the National
Music Publishers' Association, Inc. (``NMPA''), and The Harry Fox
Agency, Inc. (``Harry Fox'') to vacate the scheduled dates appearing in
the July 17, 1996, Federal Register notice for convening a CARP. The
Library vacated the schedule on December 11, 1996, and established a
new precontroversy discovery schedule and date for the filing of
Notices of Intent to Participate. 61 FR 65243 (December 11, 1996).
After publication of the new schedule, representatives of the RIAA,
NMPA and Harry Fox informed the Library that terms and rates for
digital phonorecord deliveries could be negotiated through voluntary
agreement, and requested that the Library vacate the new schedule to
allow sufficient time for such negotiations. The Library vacated the
new schedule on February 3, 1997. 62 FR 5057 (February 3, 1997). The
parties did reach a voluntary agreement and, pursuant to the rules, the
Library published the proposed rates and terms for digital phonorecord
deliveries for public comment. 62 FR 63506 (December 1, 1997). In that
notice of proposed rulemaking, the Library specified that any party
that objected to the proposed rates and terms was required to file a
Notice of Intent to Participate and was expected to fully participate
in a CARP proceeding. 62 FR 63507 (December 1, 1997). However, the
Library did not call for the filing of Notices of Intent to Participate
by parties other than those who objected to the proposed rates and
terms.
Two parties, the United States Telephone Association (``USTA'') and
the Coalition of Internet Webcasters (``Webcasters''), opposed the
proposed terms and rates and filed Notices of Intent to Participate. A
third party, Broadcast Music, Inc. (``BMI''), also filed a Notice of
Intent to Participate in the event that a CARP takes place. BMI's
interest is the relationship between digital phonorecord deliveries and
the public performance right.
Notices of Intent To Participate
The parties in this proceeding continue to negotiate in an effort
to reach agreement as to the terms and rates for digital phonorecord
deliveries. In the event that a CARP becomes necessary, participating
parties must be identified. Because earlier deadlines for the filing of
Notices of Intent to Participate were vacated at the parties' request,
Notices have yet to be filed in this proceeding, save those filed by
USTA, Webcasters and BMI. Consequently, the Library is instructing
those parties (other than USTA, Webcasters and BMI) who wish to
participate in a CARP proceeding to establish rates and terms for
digital phonorecord deliveries to file a Notice of Intent to
Participate by July 31, 1998.
Dated: June 24, 1998.
David O. Carson,
General Counsel.
[FR Doc. 98-17478 Filed 6-30-98; 8:45 am]
BILLING CODE 1410-33-U