[Federal Register: April 5, 2000 (Volume 65, Number 66)]

[Proposed Rules]               

[Page 17840-17841]



Copyright Office

37 CFR Part 201

[Docket No. RM 2000-3A]


Public Performance of Sound Recordings: Definition of a Service

AGENCY: Copyright Office, Library of Congress.

ACTION: Request for comments.


SUMMARY: The Copyright Office is seeking comments on a motion to 

suspend the rulemaking proceeding which would determine whether 

transmissions of a broadcast signal over a digital communications 

system, such as the internet, are exempt from copyright liability.

DATES: Written comments are due on April 17, 2000. Reply comments are 

due May 1, 2000.

ADDRESSES: If sent by mail, an original and ten copies of comments and 

reply comments should be addressed to: Copyright Arbitration Royalty 

Panel (CARP), P.O. Box 70977, Southwest Station, Washington, D.C. 

20024. If hand delivered, they should be brought to: Office of the 

General Counsel, James Madison Memorial Building, Room LM-403, First 

and Independence Avenue, S.E., Washington, D.C. 20559-6000.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 

Tanya M. Sandros, Senior Attorney, Copyright Arbitration Royalty Panel, 

PO Box 70977, Southwest Station, Washington, DC 20024. Telephone: (202) 

707-8380. Telefax: (202) 252-3423.



    On March 1, 2000, the Recording Industry Association of America, 

Inc. (``RIAA'') filed a petition with the Copyright Office, requesting 

that it initiate a rulemaking proceeding to determine whether over-the-

air broadcast radio transmissions that are transmitted over the 

Internet are exempt from copyright liability pursuant to section 114 of 

the Copyright Act, title 17 of the United States Code. On March 16, 

2000, the Office published a notice of proposed rulemaking in which it 

requested comments on the scope of the section 114(a) exemption and 

whether the Office should decide this question through a notice and 

comment proceeding. 65 FR 14227 (March 16, 2000).

    In response to that notice, the National Association of 

Broadcasters (``NAB'') filed, on behalf of its members, a complaint 

against the RIAA in the U.S. District Court for the Southern District 

of New York seeking a declaratory ruling that a simultaneous 

transmission of an over-the-air broadcast of an FCC-licensed radio 

station over the Internet is exempt from the digital performance right 

in sound recordings and, consequently, is not subject to compulsory 

licensing under section 114 of the Act, or to discretionary licensing 

by individual copyright holders. Subsequently, NAB and ABC, Inc., AMFM, 

Inc., Bonneville International Corporation, CBS Corporation, Clear 

Channel Communications, Inc., Cox Radio, Inc., Emmis Communications 

Corporation and the Walt Disney Company (collectively ``movants'') 

filed a motion with the Copyright Office on March 29, 2000, requesting 

a suspension of the rulemaking proceeding regarding the Digital 

Performance Right in Sound Recordings.

    In the motion, Movants suggest that the resolution of a fundamental 

question involving nothing more than the interpretation of a statutory 

provision is best left to a court of competent jurisdiction. Motion at 

5. they intimate that an agency need not involve itself in such issues, 

at least in the first instance, unless the question raises regulatory 

policy concerns or falls within the unique expertise of the agency. 

They also argue that a rulemaking proceeding is an inadequate means for 

resolving such a ``fundamental'' issue, and for that reason such 

questions should be decided by a court.

    Since the issues raised in the motion merely respond to the 

Office's request for comment on whether the Office should proceed to 

decide the question concerning the scope of the section 114(a) 

exemption through a notice and comment proceedings, the Office cannot 

address the merits of the motion until those parties with an interest 

in the proceeding have an opportunity to comment. Because the motion 

sets forth concrete arguments urging the Office defer addressing the 

scope of the section 114(a) exemption in a notice and comment 

proceeding in order to allow a court--in this instance, the U.S. 

District Court for the Southern District of New York--the opportunity 

to resolve the issue, the Office is making the motion available at this 

time in order to give all interested parties notice of the motion and 

an opportunity to comment on the arguments set forth therein.

    Copies of the motion are available from the Office of the General 

Counsel of Copyright at the address listed in this notice. The motion 

has also been posted

[[Page 17841]]

to the Copyright Office website (http://www.copyright.gov/

licensing/motion-suspend.pdf). Comments on the motion to suspend are to 

be included in the comments a party submits on the substantive issues 

set forth in the initial notice of proposed rulemaking. Comments are 

due on April 17, 2000, and reply comments are due on May 1, 2000, the 

dates specified in the initial notice of proposed rulemaking, and 

should be included as part of any comments interested parties submit in 

response to the initial notice of proposed rulemaking.

    Dated: March 31, 2000.

Marilyn J. Kretsinger,

Assistant General Counsel.

[FR Doc. 00-8386 Filed 4-4-00; 8:45 am]