[Federal Register: November 2, 1999 (Volume 64, Number 211)]

[Proposed Rules]               

[Page 59140-59141]



Copyright Office

37 CFR Part 201

[Docket No. RM 99-5B]


Notice and Recordkeeping for Non-subscription Digital 


AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of Proposed Rulemaking.


SUMMARY: The Copyright Office proposes extending the date by which a 

non-interactive, non-subscription service currently making digital 

transmissions of sound recordings must file an initial notice of 

digital transmission with the Copyright Office from October 15, 1999, 

to December 1, 1999.

DATES: Comments must be received by the Copyright Office on or before 

November 17, 1999.

ADDRESSES: An original and ten copies of the comments shall be hand 

delivered to: Office of General Counsel, Copyright Office, LM-403, 

James Madison Memorial Building, 101 Independence Avenue, SE, 

Washington, DC 20559-6000, or mailed to: David O. Carson, General 

Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, 

Washington, DC 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, DC 20024. Telephone: (202) 707-8380. 

Telefax: (202) 707-8366.



    On October 28, 1998, 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 non-subscription 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. 


    For purposes of promulgating regulations governing the notice and 

recordkeeping requirements, the Office published a notice of proposed 

rulemaking in August, 1999, seeking to amend 37 CFR 201.35(f)--the 

interim regulation that requires the submission of an initial notice of 

digital transmission. The proposed change required each non-

subscription service to file an initial notice of digital transmission 

prior to its first transmission, or in the case of those services 

already making such transmissions, prior to October 15, 1999. 64 FR 

42316 (August 4, 1999). On September 2, 1999, the Recording Industry of 

America, Inc. (``RIAA'') filed the only comment to the proposed change 

supporting, in general, the Office's proposal to amend the date by 

which a nonexempt, eligible non-subscription service already in 

operation could file a timely initial notice. Because there was no 

opposition to the proposed interim rule change, the Office set October 

15, 1999, as the date by which non-subscription services currently 

making digital transmissions had to file its initial notice. 64 FR 

50758 (September 20, 1999).

    On October 15, 1999, the National Association of Broadcasters 

(``NAB'') filed a petition with the Copyright Office, seeking an 

extension of the date for filing these initial notices until December 

1, 1999. NAB makes this request because it believes that many 

potentially affected parties were unaware of the need to file an 

initial notice by the October 15, 1999, date, and consequently, missed 

the filing deadline, thereby jeopardizing their opportunity to rely 

upon the statutory license. NAB also suggests that the Office need not 

have proceeded at such a swift pace to amend the notice requirements 

when the rates and terms for the section 114 license have yet to be 

set. However, NAB is not proposing any change to the published schedule 

for the rate setting proceeding. See 64 FR 52107 (September 27, 1999).

    In a response to the NAB petition, RIAA raised no objection to 

NAB's proposal to extend the date for filing initial notices from 

October 15, 1999, to December 1, 1999, although it stated that it would 

strongly oppose any extension beyond that date and any change to the 

November 1, 1999, filing date for the Notices of Intent to Participate 

in the rate setting proceeding. RIAA states that it needs the 

information supplied by the initial notices and the Notices of Intent 

to Participate in order to complete the industry-wide negotiations, the 

aim of which is to set rates and terms for the section 112 and 114 

statutory licenses. See 63 FR 65555 (November 27, 1998).

    NAB's reasons for requesting the extension are supported by the 

facts. Since October 15, 1999, the Copyright Office has received 

several hundred initial notices and expects additional filings to 

continue. Thus, it appears that many of the potentially affected 

parties were unaware of the rule change that set a date certain by 

which services currently operating under the section 114 statutory 

license had to file an initial notice of digital transmission of sound 


    In recognition of the apparent breakdown in the process to 

disseminate the information regarding the filing requirement to those 

parties most affected by the interim rule change, the Office is 

proposing to amend its interim regulation in accordance with NAB's 

suggestion and to adopt the proposed December 1, 1999, date as the 

deadline for filing initial notices.

    In any event, the Office will accept all initial notices filed with 

the Licensing Division of the Copyright Office. However, the Office 

takes no position on the legal sufficiency of any filing made with the 

Office that does not conform with the filing requirements announced in 

37 CFR 201.35(f). A service should be aware that the date-specific 

filing deadline for non-subscription services is significant only if it 

has made a digital transmission under the statutory license prior to 

that filing date. Any preexisting entity, just as any new entity which 

chooses to make use of the license at a future time, may file its 

initial notice after these dates, so long as it files its initial 

notice with the Licensing Division prior to the first transmission of a 

sound recording.

    For these reasons, and because the Office considers it likely that 

there will be no substantive objections filed and that the Office will 

promulgate a final rule extending the deadline to December 1, services 

that have commenced making eligible non-subscription

[[Page 59141]]

transmissions and that have not yet filed initial notices are 

encouraged to file their initial notices prior to promulgation of the 

final rule and in no event later than December 1, 1999.

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 considers the effect of a proposed amendment on small 

businesses. For that reason, the Register is seeking to amend yet again 

37 CFR 201.35(f) in order to allow small business entities that are 

eligible for the statutory license to make a timely filing of its 

initial notice of digital transmissions. The Register is seeking the 

amendment at the request of the NAB, an organization that represents 

the interests of numerous small broadcasters who were heretofore 

unaware of the filing requirement, and with the expectation that the 

NAB will make its members aware of the filing requirement and the 

proposed new deadline.

List of Subjects in 37 CFR Part 201


Proposed Regulation

    For the reasons set forth in the preamble, it is proposed that part 

201 of title 37 of the Code of Federal Regulations be amended as 



    1. The authority citation for part 201 continues to read as 


    Authority: 17 U.S.C. 702.

    2. Section 201.35(f) is amended by removing the date ``October 15'' 

and inserting in its place ``December 1''.

    Dated: October 27, 1999.

David O. Carson,

General Counsel.