[Federal Register: February 7, 2002 (Volume 67, Number 26)]
[Proposed Rules]
[Page 5761-5767]
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2002-1]*
Notice and Recordkeeping for Use of Sound Recordings Under
Statutory License
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Copyright Office of the Library of Congress is issuing a
notice of proposed rulemaking on the requirements for giving copyright
owners reasonable notice of the use of their works for sound recordings
under statutory license and for how records of such use shall be kept
and made available to copyright owners. The Digital Performance Right
in Sound Recordings Act of 1995 and the Digital Millennium Copyright
Act enacted in 1998 require the Office to adopt these regulations.
DATES: Comments are due by March 11, 2002. Reply comments are due by
April 8, 2002.
ADDRESSES: An original and ten copies of any comment shall be delivered
to: Office of the General Counsel, Copyright Office, James Madison
Building, Room LM-403, First and Independence Avenue, SE, Washington,
DC; or mailed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box
70977, Southwest Station, Washington, DC 20024-0977.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Tanya Sandros, Senior Attorney, Copyright Arbitration Royalty Panel,
P.O. Box 70977, Southwest Station, Washington, DC 20024-0977.
Telephone: (202) 707-8380. Telefax: (202) 252-3423.
SUPPLEMENTARY INFORMATION:
Background
The Digital Performance Right in Sound Recordings Act of 1995
(DPRA) amended 17 U.S.C. 114 to give sound recording copyright owners
an exclusive right to perform their works publicly by means of a
digital audio transmission, subject to certain limitations and
exemptions. Pub. L. No. 104-39, 109 Stat. 336 (1995). Among the
limitations placed on the performance of a sound recording was the
creation of a statutory license that permits certain subscription
digital audio Services to publicly perform those sound recordings
through digital audio transmission. In order to operate under the
license, eligible subscription digital audio Services must pay the
statutorily required fees and comply with certain other conditions,
such as adherence to notice and recordkeeping requirements.
In 1998, Congress passed the Digital Millennium Copyright Act
(DMCA), which expanded the scope of the section 114 license. It amended
section 114 by adding three new categories of Services that may operate
under the license, and by redesignating the subscription Services
covered by the DPRA statutory license as ``preexisting subscription
Services.'' Pub. L. No. 105-304, 112 Stat. 2860, 2887 (1998). The three
new service categories are: (1) Preexisting satellite digital audio
radio Services, (2) new subscription Services and (3) eligible
nonsubscription transmission Services. The DMCA also amended 17 U.S.C.
112 to add another new license that is available to permit Services to
make ephemeral recordings of a sound recording to facilitate the
transmissions permitted under section 114.
Both the DPRA and the DMCA direct the Librarian of Congress to
establish regulations to require eligible Services to give copyright
owners reasonable notice that their sound recordings are being used
under one or both of the licenses and create and maintain records of
use and make them available to copyright owners. See Secs. 112(e)(4)
and 114(f)(4)(A).
Interim Rule for Digital Audio Subscription Transmissions
On May 13, 1996, the Copyright Office published a Notice of
Proposed Rulemaking (NPRM) in the Federal Register requesting comments
on the requirements by which copyright owners should receive reasonable
notice of the use of their works from subscription digital transmission
Services and how records of such use should be kept and made available
to copyright owners. The Office asked commentators to consider both the
adequacy of notice to sound recording copyright owners and the
administrative burdens placed on digital transmission Services in
providing notice and maintaining records of use. 61 FR 22004 (May 13,
1996).
On November 14, 1996, and again on January 27, 1999, the Copyright
Office met with the parties to facilitate agreement on the notice and
recordkeeping requirements under section 114, and to discuss the proper
regulatory and recordkeeping role of the Office.\1\
---------------------------------------------------------------------------
\1\ The comments, meeting summaries, and meeting handouts are
available in the Public Information Office of the Copyright Office,
James Madison Memorial Building, Room LM-401, First and Independence
Ave., SE., Washington, DC.
---------------------------------------------------------------------------
Based on the comments filed in response to the first NPRM and the
information gleaned from the subsequent meetings, the Copyright Office
published a second NPRM on June 24, 1997, presenting certain
preliminary decisions and asking the parties for further comments.\2\
62 FR 34035 (June 24, 1997). In 1998, after extensive study, the
Copyright Office issued Interim Regulations to implement the notice and
recordkeeping requirements for section 114 that were enacted in 1995 as
part of the DPRA. 63 FR 34289 (June 24, 1998). 37 CFR 201.35-201.37.
The interim rules took effect on June 28, 1998. The rules were issued
on an interim basis in light of the rapidly developing nature of the
digital transmission Service industry and the possibility that new
technology might be developed which would allow the reporting
requirements to be either
[[Page 5762]]
expanded or reduced, depending upon the needs of the industries.
---------------------------------------------------------------------------
\2\ The version that was published in the Federal Register on
June 24, 1998 is a synopsis of the Interim Regulation in Docket No.
RM 96-3B, adopted June 15, 1998. The full text is available for
inspection and copying during normal business hours in the Public
Information Office of the Copyright Office, Room LM-401, and in the
Public Records Office of the Licensing Division of the Copyright
Office, Room LM-458, James Madison Memorial Building, First and
Independence Avenue, SE, Washington, DC 20559-6000. The full text is
also available via the Copyright Office home page at http://
www.loc.gov/copyright/fedreg/1998/63fr34289.html.
---------------------------------------------------------------------------
Since that time, the subscription digital audio Services (now known
as the ``preexisting subscription Services'') have filed notices of use
and maintained records of use in accordance with these rules. These
rules, however, were not adapted to cover the new categories of
Services that operate under the licenses in sections 112 and 114, as
amended by the DMCA.
Current Rulemaking Proceeding
The purpose of this proposed rulemaking is to provide interested
parties with an opportunity to comment on the Interim regulations and
to amend these same rules to include the requirements of the 1998 DMCA
amendments that expanded the section 114 license and created the new
section 112 license. For a full discussion of the issues underpinning
the Interim regulations, please refer to the earlier NPRMs, 61 FR 22004
(May 13, 1996) and 62 FR 34035 (June 24, 1997), and the notice
announcing the interim rules. 63 FR 34289 (June 24, 1998).
1. Preliminary Considerations
On May 24, 2001, the Copyright Office received a petition from the
Recording Industry Association of America (RIAA) and its SoundExchange
division requesting that the Office conduct rulemaking proceedings to
develop notice and recordkeeping requirements that substantively
address the 1998 DMCA amendments. RIAA, however, advised against
establishing any notice or recordkeeping requirements for pre-existing
satellite digital audio radio Services, as defined in 17 U.S.C.
114(j)(10), or for pre-existing subscription Services employing
transmission media other than those used by such Services on July 31,
1998. RIAA petition at 1-2. This suggestion was based on the fact that
RIAA and identified Services were engaged in negotiation discussions
regarding notice and recordkeeping issues for these Services which they
hoped would result in agreement that would be jointly proposed to the
Office for adoption in a second rulemaking proceeding. RIAA petition at
2.
The Office agrees that there is a need to adopt additional notice
and recordkeeping requirements for eligible nonsubscription Services at
this time in order to have them in place when the current CARP
proceeding is concluded. Adoption of such rules will enable copyright
owners to receive their royalty payments as expeditiously as possible.
See U.S. Copyright Office, Order in Docket No. 99-6 CARP DTRA 1 & 2,
Docket No. 2000-3 CARP DTRA2 (December 4, 2000 Order.)
The scope of the rules proposed by the Office, however, covers all
Services that operate under the section 112 and 114 licenses. The
Office takes this approach because preexisting digital audio satellite
Services and new types of subscription Services are already in
operation and should have the benefit of knowing what record keeping
requirements they must use so that they can structure their businesses
accordingly. Moreover, it is likely that the basic requirements for
notice and recordkeeping will be similar for all Services. For this
reason, the proposed rule is an amended version of the interim rule and
addresses the notice and record keeping requirements for all categories
of Services.
2. Elements of Proposed Regulations
To make it explicit that the provisions of 37 CFR 201.35-201.37
apply to the Services added by the DMCA, statutory references to them
have been inserted as appropriate throughout. Also, the statutory
definition for each Service has been added to the definition sections
of 37 CFR 201.35-201.37, either expressly or by a cross reference. A
definition of ``AM/FM Webcast'' has also been included in the
recordkeeping provisions for section 201.36.
The Office also proposes amending 37 CFR 201.35-201.37 throughout
to make those provisions applicable to section 112 licenses in the same
way that they apply to section 114 licenses, although differences in
the statutory requirements have been taken into account where
appropriate. Therefore, statutory references to section 112 licenses
have been incorporated along with references to section 114 licenses.
This approach follows RIAA's recommendation with regard to the
recordkeeping requirements for section 112 licenses. However, while
RIAA recommended that 37 CFR 201.35 be used as a model for section 112
notice requirements, it advocated putting the section 112 notice
requirements in a separate section because ``the existing notice
regulations are so replete with references to the subject matter of the
statutory license as to make it confusing to integrate the two notice
provisions.'' RIAA petition at 11. However, the Copyright Office has
decided not to follow that approach at this time and proposes to amend
37 CFR 201.35 to apply its notice provisions to both section 112 and
114 licenses. The Office does not believe that such an approach is
confusing, and believes that such an approach is more efficient and
will result in less paperwork for the Office and for Services operating
under the statutory license. For example, the proposed rule provides
that a Service may file a single initial notice stating the Service's
intention to use either the section 114 statutory license, or the
section 112 statutory license, or both.
Initial Notice. The proposed changes to the notice requirements of
37 CFR 201.35 are intended to apply to situations in which a Service is
operating under only one license and those in which a Service is
operating under both. Consistent with that approach, the amended rules
propose use of a single standard form for both the section 114 license
and the section 112 license. A Service will be required to expressly
indicate on a standard form Notice of Use of Sound Recordings under
Statutory License the license(s) for which the notice is being
filed.\3\ The form will also require that the Service indicate the
categories of license (e.g., preexisting subscription service, non-
subscription transmission service, etc.) for which it seeks the
license. In addition, the Service must provide the date or the expected
date of the initial digital transmission of a sound recording made
under section 114 and the date of creation of an ephemeral phonorecord
made under section 112.
---------------------------------------------------------------------------
\3\ The Notice of Use of Sound Recordings under Statutory
License would replace the Initial Notice of Digital Transmission of
Sound Recordings under Statutory License found in the current
version of section 201.35.
---------------------------------------------------------------------------
The Office proposes to require all Services, including those which
have previously filed a general Notice of Use for the section 114
license, to file a new Notice of Use. It is the Office's impression
that many Services that have filed Initial Notices under the current
regulation have ceased using the statutory license and, in many cases,
have gone out of business altogether. Requiring all Services to refile
a Notice of Use will make the Office's records more reliable, retiring
records identifying Services that are no longer using the statutory
license. The Office invites comments on this proposal.
Moreover, the Office proposes that all Notices of Use be prepared
using a standard form developed for this purpose. In this way, there
will be an accurate uniform record currently identifying all Services
using these statutory licenses, indicating which licenses are to be
used, the type of transmissions to be made under the section 114
license, and information concerning the date of first transmission or
the date for making an ephemeral recording of a sound recording. Under
current practice, in which parties may submit a notice based on a
suggested,
[[Page 5763]]
but nonmandatory, format, a Notice is more likely to be misfiled and
the information in the Notice is less likely to be easily recognized.
Parties may comment on the elements required as part of the notice, on
when the updated notice should be filed, and on the layout and utility
of the proposed standard form. A prototype of the proposed form has
been posted on the Copyright Office website at: http://www.loc.gov/
copyright/forms/form112-114nou.pdf.
In general, Services transmitting sound recordings under statutory
license will be required to file an initial notice with the Copyright
Office as before, including the Service name, address, telephone
number, and information on how to gain access to the online website or
home page of the Service or entity, where information may be posted
under these regulations concerning the use of sound recordings under
statutory license. If the proposed rules are adopted, the notices will
be placed in the public file in the Licensing Division of the Copyright
Office, where copyright owners may go to access the information
concerning use of sound recordings under the licenses. The Office
proposes to discontinue its current practice of posting copies of all
notices on its website. The Office questions the continued utility of
making this information available on the website, which requires the
expenditure of substantial resources. It does not appear that removing
the notices from the website would be likely to deprive interested
parties of the information found in the notices. The Office proposes to
provide copies of all notices of use to the Collective or Collectives
designated through the CARP process to receive and distribute royalties
under the statutory license, and believes that this, combined with the
availability of the notices for inspection and copying in the Licensing
Division, adequately makes the information in the notices available to
all interested parties.
Moreover, the Office seeks comment on a possible change to the
requirement that all notices be filed in the Copyright Office. Would it
be more efficient for a Service to file its Notice of Use directly with
the designated collection entity, rather than with the Copyright
Office? What would be the propriety and efficiencies of having Services
file Notices of Use not with the Office, but directly with the
Collective designated to receive royalties from the statutory
licensees, and requiring the Collective to make the notices available
to the public for inspection and copying?
Moreover, the Office is seeking comment on the advisability of
requiring periodic filings of the notices of use in order to establish
a continually current and updated file of Services operating under
either the section 114 and section 112 licenses. If the Office finds
there is a need for maintaining an updated file, the final rule will
specify that each Service must file a new Notice of Use with the Office
every year (or other time period to be determined).
In any event, a new Service will still be required to file its
Notice of Use prior to the date of first transmission or the making of
an ephemeral recording, and a Service will continue to be required to
update its filing within 45 days of a change in the information
reported. If notices are to be filed with the Copyright Office, all
notices shall be accompanied by the filing fee (currently $20)
specified in section 201.3(c) of title 37 of the Code of Federal
Regulations. On the other hand, if the Office adopts a rule requiring
Services to file the Notices of Use directly with the designated
collective, there is an open question on whether there should be a
filing fee and how much that fee should be. Interested parties should
address this issue in their comments to the Office.
Reports of Use. Where appropriate, the existing recordkeeping
requirements have been revised to reflect the changes introduced by the
DMCA by inserting the appropriate statutory references. The proposed
amendment sets forth specific reporting requirements for each Service
category. In fashioning the proposed new regulations, the Office is
adopting RIAA's recommended changes for recordkeeping requirements for
new subscription Services and for Services making eligible
nonsubscription transmissions under section 114 and applies the same
rules to the preexisting satellite digital audio radio Services. In
addition, the proposed regulations incorporate RIAA's recommendation
for section 112 recordkeeping requirements. The Office is taking this
approach because the required information seems designed to accomplish
the basic reporting objective of providing information with which
copyright owners can generally monitor compliance with the terms of the
licenses.
As before, a preexisting subscription Service making digital
transmissions in the same transmission medium used by such Service on
July 31, 1998, would be required to submit reports of use with an
Intended Playlist containing all the elements required in the Interim
regulations. No changes have been made to the requirements for those
Services' Intended Playlists. The amended rules, however, require other
types of Services to submit Intended Playlists that provide additional
information, such as the type of program and the time zone from which
the transmission originated.
In addition to the information in the Intended Playlists, RIAA has
made additional requests for information in two instances. In the case
of eligible nonsubscription transmissions and transmissions made by a
new subscription Service, RIAA has requested that these Services
include a ``Listener's Log'' in the Report of Use. The ``Listener's
Log'' will identify the name of the Service, the channel or program
accessed, information on the user, such as date and time the user
logged in and out, the time zone of the place at which the user
received the transmission, the user identifier, and the country in
which the user received the transmission. RIAA has also requested that
a Service making ephemeral phonorecords of sound recordings under
section 112(e) include an ``Ephemeral Phonorecord Log'' in its record
of use. The ``Ephemeral Phonorecord Log'' would, among other things,
include the name of the Service, the date the phonorecord was made or
destroyed, and specific information about the sound recording from
which the ephemeral phonorecord was made. Commenters should discuss in
detail the reasons for including or excluding specific elements of the
Listener's Log and the Ephemeral Phonorecord Log.
On its face, the request for the Intended Playlists, Listener's
Log, and Ephemeral Phonorecord Log seems reasonably based on the
premise that the copyright owners need certain specific information to
monitor compliance and use by the Services. In support of its request
for the detailed information, RIAA argues that the information it seeks
from the Services is ``easily provided, [] not burdensome, and in fact,
is currently provided by a number of licensees who have obtained
licenses through negotiations with the RIAA and/or Sound Exchange.''
RIAA Petition at 10-11. RIAA further justifies the need for the
additional reporting requirements on the basis of differences in
statutory requirements for the different licenses and on the basis of
the different business models used within the different categories of
Services. RIAA petition at 9. Other interested parties, however, may
find the requirements too stringent and burdensome in spite of RIAA's
assertions. Such parties should identify any problems they perceive
with the proposed regulations and explain with specificity the reasons
why the regulations are unworkable or unduly burdensome, or exceed the
needs of the copyright owners.
[[Page 5764]]
3. Final Rules vs. Interim Rules
The Copyright Office issued regulations governing notice and record
keeping for the preexisting Services operating under the section 114
statutory licenses as interim regulations because the industry was
young and there was a reasonable expectation that the rules would need
revision in a short period of time. The Office, however, intends to
issue final rules at the conclusion of this proceeding which shall
govern all Services operating under both the section 112 and section
114 statutory licenses. Of course, an affected party can always seek
revision of the rules at a future time if and when the need for change
arises.
List of Subjects in 37 CFR Part 201
Copyright, Recordings.
Proposed Regulation
In consideration of the foregoing, the Copyright Office proposes
amending part 201 of 37 CFR to read 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. Sections 201.35 and 201.36 are revised to read as follows:
Sec. 201.35 Notice of Use of Sound Recordings under Statutory License.
(a) General. This section prescribes rules under which copyright
owners shall receive notice of use of their sound recordings when used
under either sections 112(e) or 114(d)(2) of title 17 of the United
States Code, or both.
(b) Definitions. (1) A Notice of Use of Sound Recordings under
Statutory License is a written notice to sound recording copyright
owners of the use of their works under section 114(d)(2) or section
112(e) of title 17 of the United States Code, or both, and is required
under this section to be filed by a Service in the Copyright Office.
(2) A Service is an entity engaged in either the digital
transmission of sound recordings pursuant to section 114(d)(2) of title
17 of the United States Code or making ephemeral phonorecords of sound
recordings pursuant to section 112(e) of title 17 of the United States
Code or both. For purposes of this section, the definition of a service
includes an entity that transmits an AM/FM broadcast signal over a
digital communications network such as the Internet, regardless of
whether the transmission is made by the broadcaster that originates the
AM/FM signal or by a third party, provided that such transmission meets
the applicable requirements of the statutory license set forth in 17
U.S.C. 114(d)(2). A Service may be further characterized as either a
preexisting subscription service, preexisting satellite digital audio
radio service, new subscription service, non-subscription transmission
service or a combination of those:
(i) A preexisting subscription service is a service that performs
sound recordings by means of noninteractive audio-only subscription
digital audio transmissions, which was in existence and was making such
transmissions to the public for a fee on or before July 31, 1998, and
may include a limited number of sample channels representative of the
subscription service that are made available on a nonsubscription basis
in order to promote the subscription service.
(ii) A preexisting satellite digital audio radio service is a
subscription satellite digital audio radio service provided pursuant to
a satellite digital audio radio service license issued by the Federal
Communications Commission on or before July 31, 1998, and any renewal
of such license to the extent of the scope of the original license, and
may include a limited number of sample channels representative of the
subscription service that are made available on a nonsubscription basis
in order to promote the subscription service.
(iii) A new subscription service is a service that performs sound
recordings by means of noninteractive subscription digital audio
transmissions and that is not a preexisting subscription service or a
preexisting satellite digital audio radio service.
(iv) A non-subscription transmission service is a service that
makes noninteractive nonsubscription digital audio transmissions that
are not exempt under subsection 114(d)(1) and are made as part of a
service that provides audio programming consisting, in whole or in
part, of performances of sound recordings, including transmissions of
broadcast transmissions, if the primary purpose of the service is to
provide to the public such audio or other entertainment programming,
and the primary purpose of the service is not to sell, advertise, or
promote particular products or services other than sound recordings,
live concerts, or other music-related events.
(c) Forms and content. A Notice of Use of Sound Recordings under
Statutory License shall be prepared on a form that may be obtained from
the Copyright Office website or from the Licensing Division, and shall
include the following information:
(1) The full legal name of the Service that is either commencing
digital transmission of sound recordings or making ephemeral
phonorecords of sound recordings under statutory license or doing both.
(2) The full address, including a specific number and street name
or rural route, of the place of business of the Service. A post office
box or similar designation will not be sufficient except where it is
the only address that can be used in that geographic location.
(3) The telephone number and facsimile number of the Service.
(4) Information on how to gain access to the online website or home
page of the Service, or where information may be posted under this
section concerning the use of sound recordings under statutory license.
(5) Identification of each license under which the Service intends
to operate, including the identification of each of the following
categories under which the Service will be making digital transmissions
of sound recordings: preexisting subscription service, preexisting
digital audio radio service, new subscription service and non-
subscription transmission service.
(6) The date or expected date of the initial digital transmission
of a sound recording to be made under the section 114 statutory license
and/or the date or the expected date of the initial use of the section
112(e) license for the purpose of making ephemeral recordings of the
sound recordings.
(7) Identification of any amendments required by paragraph (f) of
this section.
(d) Signature. The Notice shall include the signature of the
appropriate officer or representative of the Service that is either
transmitting sound recordings or making ephemeral phonorecords of sound
recordings under statutory license or doing both. The signature shall
be accompanied by the printed or typewritten name and the title of the
person signing the Notice, and by the date of the signature.
(e) Filing notices; Fees. The original Notice and three copies
shall be filed with the Licensing Division of the Copyright Office, and
shall be accompanied by the filing fee set forth in Sec. 201.3(c) of
this part. Notices shall be placed in the public records of the
Licensing Division. The address of the Licensing Division is: Library
of Congress, Copyright Office, Licensing Division, 101 Independence
Avenue, SE., Washington, DC 20557-6400.
(1) A Service that, prior to [the effective date of the final
rule], has already commenced making digital transmissions of sound
recordings pursuant to section 114(d)(2) of title 17
[[Page 5765]]
of the United States Code or making ephemeral phonorecords of sound
recordings pursuant to section 112(e) of title 17 of the United States
Code, or both, and that has already filed an Initial Notice of Digital
Transmission of Sound Recordings under Statutory License, and that
intends to continue to make digital transmissions or ephemeral
phonorecords following [the effective date of the final rule], shall
file a Notice of Use of Sound Recordings under Statutory License with
the Licensing Division of the Copyright Office no later than 60 days
following [the effective date of the final rule].
(2) A Service that, on or after [the effective date of the final
rule], commences making digital transmissions and ephemeral
phonorecords of sound recordings under statutory license shall file a
Notice of Use of Sound Recordings under Statutory License with the
Licensing Division of the Copyright Office prior to the making of the
first ephemeral phonorecord of the sound recording and prior to the
first digital transmission of the sound recording.
(3) A Service that, on or after [the effective date of the final
rule], commences making only ephemeral phonorecords of sound
recordings, shall file a Notice of Use of Sound Recordings under
Statutory License with the Licensing Division of the Copyright Office
prior to the making of the first ephemeral recording under the
statutory license.
(f) Amendment. A Service shall file a new Notice of Use of Sound
Recordings under Statutory License within 45 days after any of the
information contained in the Notice on file with the Licensing Division
has changed, and shall indicate in the space provided on the form
provided by the Copyright Office that the Notice is an amended filing.
The Licensing Division shall retain copies of all prior Notices filed
by the Service.
Sec. 201.36 Report of Use of Sound Recordings under Statutory License.
(a) General. This section prescribes rules under which Services
shall serve copyright owners with reports of use of their sound
recordings under either section 112(e) or section 114(d)(2) of title 17
of the United States Code, or both.
(b) Definitions. (1) A Report of Use of Sound Recordings under
Statutory License is a report required under this section to be
provided by a Service that is either transmitting sound recordings or
making ephemeral phonorecords of sound recordings under statutory
license or both.
(2) A Service shall have the same definition as provided in
Sec. 201.35(b)(2) of this part.
(3) An AM/FM Webcast is a transmission made by an entity that
transmits an AM/FM broadcast signal over a digital communications
network such as the Internet, regardless of whether the transmission is
made by the broadcaster that originates the AM/FM signal or by a third
party, provided that such transmission meets the applicable
requirements of the statutory license set forth in 17 U.S.C. 114(d)(2).
(4) A Collective is a collection and distribution organization that
is designated under one or both of the statutory licenses, either by
settlement agreement reached under section 112(e)(3), section
112(e)(6), section 114(f)(1)(A), section 114(f)(1)(C)(i), section
114(f)(2)(A), or section 114(f)(2)(C)(i) and adopted pursuant to 37 CFR
251.63(b), or by an order of the Librarian pursuant to 17 U.S.C.
802(f).
(c) Service. Reports of Use shall be served upon Collectives
designated under the applicable statutory license 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 reached under section 112(e)(3), section
112(e)(6), section 114(f)(1)(A), section 114(f)(1)(C)(i), section
114(f)(2)(A), or section 114(f)(2)(C)(i) and adopted pursuant to 37 CFR
251.63(b), or by decision of a Copyright Arbitration Royalty Panel
(CARP) under section 112(e)(4), section 112(e)(6), section
114(f)(1)(B), section 114(f)(1)(C)(ii), section 114(f)(2)(B), or
section 114(f)(2)(C)(ii) or by an order of the Librarian pursuant to 17
U.S.C. 802(f). Reports of Use shall be served, by certified or
registered mail, or by other means if agreed upon by the respective
Service and Collective, on or before the twentieth day after the close
of each month, commencing with [the month succeeding the month in which
the final rule becomes effective].
(d) Posting. In the event that no Collective is designated under
the applicable statutory license, or if all designated Collectives have
terminated collection and distribution operations, a Service
transmitting sound recordings under statutory license shall post and
make available online its Reports of Use. Services shall post their
Reports of Use online on or before the 20th day after the close of each
month, and make them available to all sound recording copyright owners
for a period of 90 days. Services may require use of passwords for
access to posted Reports of Use, but must make passwords available in a
timely manner and free of charge or other restrictions. Services may
predicate provision of a password upon:
(1) Information relating to identity, location and status as a
sound recording copyright owner; and
(2) A ``click-wrap'' agreement not to use information in the Report
of Use for purposes other than royalty collection, royalty
distribution, and determining compliance with statutory license
requirements, without the express consent of the Service providing the
Report of Use.
(e) Content. (1) Heading. A ``Report of Use of Sound Recordings
under Statutory License'' shall be identified as such by prominent
caption or heading,
(2) Intended Playlists. For a Service making digital transmissions
of sound recordings pursuant to a statutory license under 17 U.S.C.
114(d)(2), each report of use shall include a Service's ``Intended
Playlists'' for each channel on each day of the reported month.
(i) In the case of transmissions of sound recordings made pursuant
to a statutory license under 17 U.S.C. 114(d)(2) by a Service that is a
preexisting subscription service in the same transmission medium used
by such Service on July 31, 1998, the ``Intended Playlists'' shall
include a consecutive listing of every recording scheduled to be
transmitted, and shall contain the following information in the
following order:
(A) The name of the Service or entity;
(B) The channel;
(C) The sound recording title;
(D) The featured recording artist, group, or orchestra;
(E) The retail album title (or, in the case of compilation albums
created for commercial purposes, the name of the retail album
identified by the Service for purchase of the sound recording);
(F) The recording label;
(G) The catalog number;
(H) The International Standard Recording Code (ISRC) embedded in
the sound recording, where available and feasible;
(I) The date of transmission; and
(J) The time of transmission.
(ii) In the case of all other Services not covered by paragraph
(e)(2)(i) of this section, that are transmitting sound recordings
pursuant to a statutory license under 17 U.S.C. 114(d)(2), the
``Intended Playlists'' shall include a consecutive listing of every
recording scheduled to be transmitted, or if transmissions are not
scheduled in advance, every recording actually transmitted, and shall
contain the following information in the following order:
[[Page 5766]]
(A) The name of the Service or entity;
(B) The channel or program; or in the case of an AM/FM Webcast, the
station identifier used by the Service, including the band designation
and the FCC facility identification number of the broadcast station
that is transmitted; provided that if a program is generated as a
random list of sound recordings from a predetermined list, the channel
or program must be a unique identifier differentiating each user's
randomized playlist from all other users' randomized playlists;
(C) The type of program: ``A'' (for an ``archived program'' as
defined section 114(j)(2)), ``L'' (for ``looped'' if the program is a
``continuous program'' as defined in section 114(j)(4)), ``V'' (for
``live'' if the program is transmitted substantially at the time it is
first performed in its entirety), or ``PS'' (for ``prescheduled'' if
the program is an identifiable program transmitted at times that have
been publicly announced in advance);
(D) For programs other than archived programs, the date of
transmission;
(E) For programs other than archived programs; the time of
transmission of the sound recording;
(F) The time zone of the place from which the transmission
originated (as an offset from Greenwich Mean Time);
(G) For archived programs, the numeric designation of the place of
the sound recording within the order of the program;
(H) The duration of the transmission of the sound recording (to the
nearest second);
(I) The sound recording title;
(J) The International Standard Recording Code (ISRC) embedded in
the sound recording, where available and feasible;
(K) The release year identified in the copyright notice on the
album and, in the case of compilation albums created for commercial
purposes, the release year identified in the copyright notice for the
individual track;
(L) The featured recording artist, group, or orchestra;
(M) The retail album title (or, in the case of compilation albums
created for commercial purposes, the name of the retail album
identified by the Service for purchase of the sound recording);
(N) The recording label;
(O) The Universal Product Code of the retail album;
(P) The catalog number;
(Q) The copyright owner information provided in the copyright
notice on the retail album (e.g., following the symbol `P')*
or, in the case of compilation albums created for commercial purposes,
in the copyright notice for the individual track; and
(R) The musical genre of the channel or program, or in the case of
AM/FM Webcast, the broadcast station format.
(3) Listener's Log. Except for a preexisting subscription Service,
a Service that transmits sound recordings pursuant to a statutory
license under 17 U.S.C. 114(d)(2) shall also include such Service's
``Listener Log.'' The ``Listener Log'' shall contain the following
information in the following order for each session during which a user
is logged in to receive transmissions as part of the Service:
(i) The name of the Service or entity;
(ii) The channel or program, using an identifier corresponding to
that in the Intended Playlist;
(iii) The date and time that the user logged in (local time at
user's location);
(iv) The date and time that the user logged out (local time at the
user's location);
(v) The time zone of the place at which the user received
transmissions (as an offset from Greenwich Mean Time);
(vi) The unique user identifier assigned to a particular user or
session; and
(vii) The country in which the user received transmissions.
(4) Ephemeral Phonorecord Log. In the case of a Service that has
made ephemeral phonorecords of sound recordings pursuant to a statutory
license under 17 U.S.C. 112(e), the Service shall include an
``Ephemeral Phonorecord Log.'' The ``Ephemeral Phonorecord Log'' shall
contain the following information in the following order for each act
of creation or destruction of ephemeral phonorecords of sound
recordings under statutory license:
(i) The name of the Service or entity;
(ii) Whether the ephemeral phonorecord was created or destroyed;
(iii) The date the ephemeral phonorecord was created or destroyed;
(iv) The sound recording title;
(v) The International Standard Recording Code (ISRC) embedded in
the sound recording, where available and feasible;
(vi) The release year identified in the copyright notice on the
album and, in the case of compilation albums created for commercial
purposes, the release year identified in the copyright notice for the
individual track;
(vii) The featured recording artist, group or orchestra;
(viii) The retail album title (or, in the case of compilation
albums created for commercial purposes, the name of the retail album
identified by the Service for purchase of the sound recording);
(ix) The recording label;
(x) The catalog number;
(xi) The Universal Product Code of the retail album;
(xii) The copyright owner information provided in the copyright
notice of the retail album (e.g. following the symbol
`P')* or, in the case of compilation albums created for
commercial purposes, in the copyright notice for the individual track;
and
(xiii) The number of ephemeral phonorecords that were created or
destroyed.
(5) System failure. The Report of Use shall include a report of any
system failure resulting in a deviation from the Intended Playlists of
scheduled sound recordings. Such report shall include the date, time
and duration of any system failure.
(f) Signature. Reports of Use shall include a signed statement by
the appropriate officer or representative of the Service attesting,
under penalty of perjury, that the information contained in the Report
is believed to be accurate and is maintained by the Service in its
ordinary course of business. The signature shall be accompanied by the
printed or typewritten name and title of the person signing the Report,
and by the date of signature.
(g) Format. Reports of Use should be provided on a standard
machine-readable medium, such as diskette, optical disc, or magneto-
optical disc, and should conform as closely as possible to the
following specifications:
(1) In the case of transmissions made as part of a Service that is
a preexisting subscription Service in the same transmission medium used
by such Service on July 31, 1998:
(i) ASCII delimited format, using pipe characters as delimiter,
with no headers or footers;
(ii) Carats (caret) should surround strings;
(iii) No carats (caret ) should surround dates and
numbers;
(iv) Dates should be indicated by: MM/DD/YYYY;
(v) Times should be based on a 24-hour clock: HH:MM:SS;
(vi) A carriage return should be at the end of each line; and
(vii) All data for one record should be on a single line.
(2) In the case of all other Services not covered by paragraph
(g)(1) of this section that are transmitting sound recordings pursuant
to a statutory license under 17 U.S.C. 114(d)(2) and in the case of
Ephemeral Phonorecord Logs:
(i) ASCII delimited format, using pipe characters as delimiter,
with no headers or footers;
(ii) Field names should not be included as the first row of the
file;
[[Page 5767]]
(iii) Carats (caret) should surround strings;
(iv) No carats (caret) should surround dates and
numbers;
(v) Dates and times should be indicated by: DDMMYYYYhhmmss, where
DD is the two-digit day of the log period; MM is the two-digit month of
the log period; YYYY is the four-digit year of the log period; hh is
the two-digit hour of the log period; mm is the two-digit minute of the
log period; ss is the two-digit second of the log period; single digit
days, months, hours, minutes and second should be prepended with a
zero; and times are local times using a 24-hour clock;
(vi) A carriage return should be at the end of each line;
(vii) All data for one record should be on a single line;
(viii) All data for each month and each log type should be
contained in a single file;
(ix) Files may be compressed in ZIP or GZ format; and
(x) Files should be named Service Name_Log Type_MMYYYY, where Log
Type should be Play List, Listener or Ephemeral.
(h) Confidentiality. Copyright owners, their agents and Collectives
shall not disseminate information in the Reports of Use to any persons
not entitled to it, nor utilize the information for purposes other than
royalty collection and distribution, and determining compliance with
statutory license requirements, without express consent of the Service
providing the Report of Use.
(i) Documentation. All statutory licensees shall, for a period of
at least three years from the date of service or posting of the Report
of Use, keep and retain a copy of the Report of Use. For reporting
periods from February 1, 1996, through August 31, 1998, the Service
shall serve upon all designated Collectives and retain for a period of
three years from the date of transmission records of use indicating
which sound recordings were performed and the number of times each
recording was performed, but is not required to produce full Reports of
Use or Intended Playlists for those periods.
3. Section 201.37 (a) and (b) are revised to read as follows:
Sec. 201.37 Designated Collective.
(a) General. This section prescribes rules governing a Collective
designated to collect and distribute statutory royalties for use of the
statutory licenses set forth in sections 112(e) and 114(d)(2) of title
17 of the United States Code.
(b) Definitions. (1) A Collective shall have the same definition as
provided in Sec. 201.36(b)(4) of this part.
(2) A Service shall have the same definition as provided in
Sec. 201.35(b)(2) of this part.
* * * * *
Dated: February 1, 2002.
David O. Carson,
General Counsel.
[FR Doc. 02-2842 Filed 2-6-02; 8:45 am]
BILLING CODE 1410-31-P
*Note: Text corrected as per 67 FR 9045, February 27, 2002.