[Federal Register: August 4, 1999 (Volume 64, Number 149)]
[Proposed Rules]
[Page 42316-42317]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 99-5]
Notice and Recordkeeping for Subscription Digital Transmissions
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Copyright Office of the Library of Congress is proposing
to amend the regulation that requires the filing of an initial notice
of digital transmissions of sound recordings under statutory license
with the Copyright Office to adjust for changes brought about by the
passage of the Digital Millennium Copyright Act of 1998.
DATES: Comments are due September 3, 1999.
ADDRESSES: An original and ten copies of the comments shall be
delivered to: Office of General Counsel, Copyright Office, LM-403,
James Madison Memorial Building, 101 Independence Avenue, S.E.,
Washington, D.C. 20559-6000, or mailed to: David O. Carson, General
Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station,
Washington, D.C. 20024.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Tanya M. Sandros, Attorney Advisor, Copyright GC/I&R, P.O. Box 70400,
Southwest Station, Washington, D.C. 20024. Telephone: (202) 707-8380.
Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
Background
On November 1, 1995, Congress enacted the Digital Performance Act
in Sound Recordings Act of 1995 (``DPRA''), Public Law 104-39, 109
Stat. 336 (1995). The DPRA gave to sound recording copyright owners an
exclusive right to perform their works publicly by means of a digital
audio transmission. 17 U.S.C. 106(6). The new right, however, was
subject to certain limitations, including exemptions for certain
digital transmissions, 17 U.S.C. 114(d)(1), and the creation of a
statutory license for nonexempt digital subscription services. 17
U.S.C. 114(d)(2).
The statutory license requires adherence to regulations under which
copyright owners may receive reasonable notice of use of their sound
recordings under the statutory license, and under which entities
performing the sound recordings shall keep and make available records
of such use. 17 U.S.C. 114(f)(2). On May 13, 1996, the Copyright Office
initiated a rulemaking proceeding to promulgate regulations to govern
the notice and recordkeeping requirements. 61 FR 22004 (May 13, 1996).
This rulemaking concluded with the issuance of interim rules to govern
the filing of an initial notice of digital transmissions of sound
recordings under statutory license, 37 CFR 201.35, and the filing of
reports of use of sound recordings under statutory license, 37 CFR
201.36. See 63 FR 34289 (June 24, 1998).
At the time these regulations were announced, only three
noninteractive, nonsubscription, digital transmissions services (DMX,
Inc., Digital Cable Radio Associates/Music Choice, and Muzak, Inc.)
were in operation and considered eligible for the license.
Consequently, the Office prescribed a period for filing initial notices
such that all existing services, which were already operating in
accordance with the section 114 license, had to submit their notices
within 45 days of the effective date of the regulation. Section
201.35(f) reads, in part, as follows: ``A Service shall file the
Initial Notice with the Licensing Division of the Copyright Office
prior to the first transmission of sound
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recordings under the license, or within 45 days of the effective date
of this regulation.'' (Emphasis added).
Subsequently, the President signed into law the Digital Millennium
Copyright Act of 1998 (``DMCA''). Among other things, the DMCA expanded
the section 114 compulsory license to allow a nonexempt, eligible
nonsubscription transmission service and a pre-existing satellite
digital audio radio service to perform publicly a sound recording by
means of certain digital audio transmissions, subject to notice and
recordkeeping requirements. 17 U.S.C. 114(f).
The notice and recordkeeping requirements found in Secs. 201.35 and
201.36 would appear to apply to any service eligible for the section
114 license, including those newly eligible to use the license under
the amended provisions of the license. However, these regulations
provide no opportunity for a newly eligible nonsubscription
transmission service which was in service prior to the passage of the
DMCA to make a timely filing of its initial notice of transmission.
Therefore, the Copyright Office is proposing an amendment to
Sec. 201.35(f) which would extend the period for filing the initial
notice to October 15, 1999, in order to allow the eligible
nonsubscription services which were in operation prior to the passage
of the DMCA an opportunity to file their initial notice timely.
Comments on the extension of the filing period must be filed with the
Copyright Office within September 3, 1999.
The Office also recognizes that Sec. 201.36, which prescribes rules
detailing how services shall notify copyright owners of the use of
their sound recordings, what to include in that notice, and how to
maintain and make available such records, does not apply to those
services newly eligible for the section 114 license under the DMCA.
Currently, Sec. 201.36(c) requires ``Reports of Use [to] be served upon
Collectives that are identified in the records of the Licensing
Division of the Copyright Office as having been designated under the
statutory license, either by settlement agreement . . ., or by decision
of a Copyright Arbitration Royalty Panel . . ., or by an order of the
Librarian . . . .'' At this time, no collective has been designated in
accordance with any of the methods enumerated in Sec. 201.36(c) for the
purpose of collecting royalty fees from the newly eligible services,
nor have any rates or terms been set for the use of the license by
these services. See 63 FR 65555 (November 27, 1998). The newly eligible
services and the interested copyright owners, however, continue
negotiations to reach industry-wide agreement on rates and terms for
the expanded section 114 license. In deference to these negotiations,
the Office will refrain from initiating at this time a rulemaking
proceeding to consider amendments to the recordkeeping regulations.
Regulatory Flexibility Act
Although the Copyright Office, located in the Library of Congress
which is part of the legislative branch, is not an ``agency'' subject
to the Regulatory Flexibility Act, 5 U.S.C. 601-612, the Register of
Copyrights has considered the effect of the proposed amendment on small
businesses. The Register has determined that the amendment would not
have a significant economic impact on a substantial number of small
entities that would require provision of special relief for small
entities. The proposed amendment is designed to minimize any
significant economic impact on small entities.
List of Subjects in 37 CFR Part 201
Copyright.
Proposed Regulations
For the reasons set forth in the preamble, part 201 of title 37 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 201--GENERAL PROVISIONS
1. The authority citation for part 201 continues to read as
follows:
Authority: 17 U.S.C. 702.
2. Section 201.35(f) is amended by removing the phrase ``or within
45 days of the effective date of this regulation.'' and adding in its
place ``or by October 15, 1999.''
Dated: July 30, 1999.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 99-19988 Filed 8-3-99; 8:45 am]
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