[Federal Register: September 4, 1998 (Volume 63, Number 172)]
[Proposed Rules]
[Page 47215-47216]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04se98-26]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 98-7]
Notice and Recordkeeping for Making and Distributing Phonorecords
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of Inquiry.
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SUMMARY: The Copyright Office of the Library of Congress is requesting
comments on the requirements by which copyright owners shall receive
reasonable notice of the use of their works in the making and
distribution of phonorecords. The Digital Performance Right in Sound
Recordings Act of 1995 requires the Librarian of Congress to establish
these regulations to ensure proper payment to copyright owners for the
use of their works.
DATES: Comments are due October 19, 1998. Reply comments are due
November 18, 1998.
ADDRESSES: If sent by mail, an original and ten copies of the comments,
or the reply comments, should be addressed to: David Carson, General
Counsel, Copyright GC/I&R, PO. Box 70400, Southwest Station,
Washington, DC 20024. If hand delivered, an original and ten copies of
the comments, or the reply comments, should be brought to: Office of
the Copyright General Counsel, James Madison Memorial Building, Room
LM-407, First and Independence Avenue, SE, Washington, DC 20599-6000.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Tanya M. Sandros, Attorney Advisor, Copyright GC/I&R, PO Box 70400,
Southwest Station, Washington, DC 20024. Telephone (202) 707-8380 or
Telefax (202) 707-8366.
SUPPLEMENTARY INFORMATION:
Background
What Is the Digital Performance Right in Sound Recordings Act of 1995?
On November 1, 1995, Congress enacted the Digital Performance Right
in Sound Recordings Act of 1995 (DPRSRA), Pub. L. 104-39 (1995). Among
other things, this law clarified that the compulsory license for making
and distributing phonorecords includes the distribution of a
phonorecord of a nondramatic musical work by means of a digital
phonorecord delivery. 17 U.S.C. 115(c)(3). A ``digital phonorecord
delivery'' is each individual delivery of a phonorecord by digital
transmission of
[[Page 47216]]
a sound recording which results in a specifically identifiable
reproduction by or for any transmission recipient. 17 U.S.C. 115(d), 37
CFR 255.4.
Why Has the Copyright Office Initiated This Rulemaking Proceeding?
The DPRSRA directs the Librarian of Congress to establish
regulations by which the entities availing themselves of this new
license would keep records of their use, make the records available to
the copyright owners, and give notice to the copyright owners of the
use of their works. 17 U.S.C. 115(c)(3)(D). Specifically, sec.
115(c)(3)(D) requires ``The Librarian of Congress (to) establish
requirements by which copyright owners may receive reasonable notice of
the use of their works under this section, and under which records of
use shall be kept and made available by persons making digital
phonorecord deliveries.''
Are There Currently Regulations Governing the Use of the Section 115
Compulsory License?
Sections 201.18 and 201.19 of title 37 of the Code of Federal
Regulations, detail how potential compulsory licensees must file a
notice of intention to obtain a compulsory license for making and
distributing phonorecords of nondramatic musical works, how to make
royalty payments to the copyright owners, and how to file statements of
account in compliance with the terms of the sec. 115 license. Although
these rules were promulgated before the passage of the DPRSRA to govern
the making and distribution of physical phonorecords, these regulations
apply equally to compulsory licensees who make digital phonorecord
deliveries.
Can the Regulations in 37 CFR 201.18 and 201.19 Be Amended To
Accommodate the Delivery of Digital Phonorecords and Meet the
Additional Notice and Recordkeeping Requirements in 17 U.S.C.
115(c)(3)(D)?
Section 115(b)(1) of the Copyright Act, 17 United States Code,
requires ``any person who wishes to obtain a compulsory license under
this section * * * (to) serve notice of intention to do so on the
Copyright Owner.'' The section also requires the Copyright Office to
prescribe regulations specifying the form, content, and manner of
service of the notice of intention. Section 201.18 of title 37 of the
Federal Code of Regulations meets this requirement. Similarly, the
regulations in Sec. 201.19 address the requirement that each compulsory
licensee file monthly and annual statements of account for each sec.
115 compulsory license as required under 17 U.S.C. 115(c)(5).
These rules, however, were conceived before the dawn of the digital
age, and consequently, may not serve those compulsory licensees who
intend to use the license to make digital phonorecord deliveries. For
instance, 37 CFR 201.19 uses the terms, ``voluntarily distributed,''
and ``phonorecord reserve,'' which, on their face, do not seem to apply
to the delivery of digital phonorecords. Nevertheless, their purpose is
to provide notice to the copyright owner of the use of his or her work
by a compulsory licensee and to ensure proper payment of royalties--the
same purpose underlying the new notice and recordkeeping provision
found in 17 U.S.C. 115(c)(3)(D).
Therefore, the Copyright Office is requesting that interested
parties consider how to amend 37 CFR 201.18 and 201.19 in order to
accommodate the delivery of digital phonorecords, and whether these
rules, if amended to accommodate the delivery of digital phonorecords,
would fulfill the notice and recordkeeping requirements specified in 17
U.S.C. 115(c)(3)(D), in addition to the requirements to file a notice
of intention and monthly as well as annual statements of accounts.
Furthermore, the Office seeks comment on the specific requirement in
sec. 115(c)(3)(D) that the ``persons making digital phonorecord
deliveries'' must keep and make available records of use. Interested
parties who do not believe that Secs. 201.18 and 201.19 can serve as an
appropriate model for the requirements of sec. 115(c)(3)(D) are invited
to propose alternative means of notice and recordkeeping.
Dated: September 1, 1998.
David O. Carson,
General Counsel.
[FR Doc. 98-23907 Filed 9-3-98; 8:45 am]
BILLING CODE 1410-31-P