[Federal Register: September 20, 1999 (Volume 64, Number 181)]
[Rules and Regulations]
[Page 50758-50759]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 99-5A]
Notice and Recordkeeping for Nonsubscription Digital
Transmissions
AGENCY: Copyright Office, Library of Congress.
ACTION: Interim rule amendment.
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SUMMARY: To adjust for changes brought about by the passage of the
Digital Millennium Copyright Act of 1998, the Copyright Office of the
Library of Congress is amending the regulation that requires the filing
of an initial notice of digital transmissions of sound recordings under
statutory license with the Copyright Office.
EFFECTIVE DATE: September 20, 1999.
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, DC 20024. Telephone: (202) 707-8380.
Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
Background
On November 1, 1995, Congress enacted the Digital Performance Right
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 governing
the filing of an initial notice of digital transmissions of sound
recordings under the 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 issued, only three
noninteractive, subscription, digital transmissions services (DMX,
Inc., Digital Cable Radio Associates/Music Choice, and Muzak, Inc.) \1\
were in operation and considered eligible for the license.
Consequently, the Office prescribed a period for filing initial notices
which required any service already operating in accordance with the
section 114 license to submit its notice 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 recordings under the license, or within 45 days of the effective
date of this regulation.'' (Emphasis added).
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\1\ These services were incorrectly identified in the August 4,
1999, notice as nonsubscription services.
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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 preexisting satellite
digital audio radio service to perform publicly a sound recording by
means of certain digital audio transmissions, subject to compliance
with 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 proposed 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. 64 FR 42316 (August 4, 1999).
On September 2, 1999, the Recording Industry of America, Inc.
(``RIAA'') filed a comment supporting, in general, the Office's
proposal to amend the date by which a nonexempt, eligible
nonsubscription service already in operation could file a timely
initial notice. RIAA expressed concern, however, that the proposed
language is overly broad and would allow not only the newly eligible
nonsubscription services an opportunity to file an initial notice
timely, but inadvertently extend the filing period for any preexisting
digital subscription services which had not filed in accordance with
the original rule. To avoid any confusion on this point, the Office is
amending the rule to indicate that any subscription service in
operation prior to September 3, 1998, had until that date to file its
initial notice with the Copyright Office, in addition to establishing
an October 15, 1999, filing deadline for any eligible, nonsubscription
service which is currently in operation. Of course, any new service
which chooses to make use of the license may file its initial notice
after these dates, so long as the service files its initial notice with
the Licensing Division prior to the first transmission of a sound
recording.
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 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
[[Page 50759]]
for small entities. The amendment is designed to minimize any
significant economic impact on small entities.
List of Subjects in 37 CFR Part 201
Copyright.
Final Regulations
For the reasons set forth in the preamble, part 201 of title 37 of
the Code of Federal Regulations is 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.
Sec. 201.35 [Amended]
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 the folllowing: * * * or by September 3, 1998, in the case of a
Service that makes subscription transmissions before or on that date,
or by October 15, 1999, in the case of a Service that makes eligible
nonsubscription transmissions before, or on, that date. * * *
Dated: September 10, 1999.
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 99-24303 Filed 9-17-99; 8:45 am]