[Federal Register: June 22, 2004 (Volume 69, Number 119)]
[Rules and Regulations]
[Page 34578-34585]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jn04-17]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2001-6B]
Compulsory License for Making and Distributing Phonorecords,
Including Digital Phonorecord Deliveries
AGENCY: Copyright Office, Library of Congress.
ACTION: Final rule.
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SUMMARY: The Copyright Office of the Library of Congress is amending
its regulations governing the content and service of certain notices on
the copyright owner of a musical work. The notice is served or filed by
a person who intends to use a musical work to make and distribute
phonorecords, including by means of digital phonorecord deliveries,
under a compulsory license.
EFFECTIVE DATE: July 22, 2004.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Tanya M. 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:
I. Background
Section 115 of the Copyright Act, 17 U.S.C., provides that ``[w]hen
phonorecords of a nondramatic musical work have been distributed to the
public in the United States under the authority of the copyright owner,
any other person * * * may, by complying with the provisions of this
section, obtain a compulsory license to make and distribute
phonorecords of the work.'' 17 U.S.C. 115(a)(1). The compulsory license
set forth in section 115 permits the use of a nondramatic musical work
in a phonorecord without the consent of the copyright owner if certain
conditions are met and royalties are paid.
Section 115 was subsequently amended on November 1, 1995, with the
enactment of the Digital Performance Right in Sound Recordings Act of
1995 (``DPRA''), Public Law 104-39 (1995). Among other things, this law
expanded the section 115 compulsory license for making and distributing
phonorecords to include not only the traditional use of the musical
work to make an original sound recording, but also the distribution of
a phonorecord of a nondramatic musical work by means of a digital
phonorecord delivery
[[Page 34579]]
(``DPD'').\1\ See 17 U.S.C. 115(c)(3)(A). As defined in the law, a
digital phonorecord delivery (DPD) is:
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\1\ The right to make and distribute a DPD, however, does not
include the exclusive rights to make and distribute the sound
recording itself. These rights are held by the copyright owner of
the sound recording and must be cleared through a separate
transaction. See 17 U.S.C. 115(c)(3)(H).
Each individual delivery of a phonorecord by digital
transmission of a sound recording which results in a specifically
identifiable reproduction by or for any transmission recipient of a
phonorecord of that sound recording, regardless of whether the
digital transmission is also a public performance of the sound
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recording or any nondramatic musical work embodied therein.
17 U.S.C. 115(d).
The DMCA did not change or alter the longstanding notice
requirement set forth in section 115(b) which requires a person who
wishes to obtain a compulsory license under section 115 to notify the
copyright owner of his or her intention to use the copyright owner's
musical work to make and distribute phonorecords under the section 115
license. However, the amendments did require the Copyright Office to
amend its regulations governing the content and service of the required
Notices of Intention to use the license to include the making of a
digital phonorecord delivery, and the Office did so in 1999. See 64 FR
41286 (July 30, 1999). It is now evident that these changes did not go
far enough to address the needs of certain digital music services which
anticipate using most, if not all, of the musical works embodied in the
sound recordings readily available in today's marketplace under the
section 115 license.
Consequently, on August 28, 2001, the Copyright Office published a
second notice of proposed rulemaking (``NPRM'') in which it suggested
further amendments to those rules associated with service of a notice
to use the section 115 license and filing of such notice with the
office. 66 FR 45241 (August 28, 2001). After considering the comments
from the record industry, music publishers and potential new users of
the license who seek to make digital phonorecord deliveries under the
section 115 license, the Office published a set of proposed regulations
that would allow, among other things, service on an agent, the listing
of multiple works on a single notice, and use of an address other than
the one listed in the Copyright Office records. In proposing these
rules, however, the Office identified three issues pertinent to the
rulemaking that either had not been presented to the public for comment
or that required further comment from the parties before the Office
could issue a final rule. For this reason, the Office published yet
another NPRM for the purpose of offering interested parties an
opportunity to comment on these three issues: (1) Whether licensees
should be required to send statements of account and royalty payments
to the agent to whom the notice of intention was sent until the agent
or the copyright owner advises the licensee that the statements and
payments should be sent elsewhere; (2) whether it is advisable to
simplify the requirement that a licensee provide information concerning
its ownership, officers and directors; and (3) the sufficiency of a
Notice to cover all possible configurations, including those not listed
specifically on the notice. 69 FR 11566 (March 11, 2004).
II. Comments and Discussion
The Copyright Office received six comments in response to the March
11 notice from the National Music Publishers' Association, Inc.
(``NMPA'') and The Harry Fox Agency, Inc. (``HFA''), jointly; the
Digital Media Association (``DiMA''); Yemi Adegbonmire; the Recording
Industry Association of America, Inc. (``RIAA''); NMPA/HFA/RIAA,
jointly; and Music Reports, Inc. (``MRI'').\2\
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\2\ The MRI comment was received on May 4, 2004, nearly a month
after the date specified in the March 11 Federal Register notice for
filing comments. Nevertheless, the Office has considered its
comments since review of its comment has not impeded the process nor
caused any undue prejudice to the other interested parties.
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All commenters who expressed an opinion supported proposed rule
Sec. 201.18(b), which would require the authorized agent of a
copyright owner, within two weeks of receiving a notice, to provide the
licensee the name and address of the person to whom the licensee shall
submit Statements of Account and royalty payments. They agreed that the
rule balanced the equities fairly between the licensee, who bears the
responsibility for serving the notice on the proper party in the first
instance, and the copyright owner. RIAA/NMPA/HFA went on to note that
the alternative proposal--to allow a licensee to make payments and file
statements on the agent authorized to accept the notice--would open the
door to disputes concerning misdirected payments which could be
difficult and time consuming to resolve after the fact. We find this
reasoning compelling.
The second proposal--to eliminate the requirement that a licensee
provide certain information concerning its ownership, officers and
directors, and substitute greatly simplified requirements--also
generated no controversy. RIAA/NMPA/HFA had maintained that the current
rules require more information than needed to meet the copyright
owner's legitimate right to know with whom it is dealing and may well
impose a needless burden on licensees. In light of these assertions by
both copyright owners and users, the Office proposed to amend the rule
and adopt the RIAA/NMPA/HFA proposal which requires that a licensee
provide only the name and title of the licensee's CEO, managing partner
or the like, and identifying information for the primary entity (such
as a record company or digital music service) expected to be actively
engaged in business under the license, if that entity is other than the
licensee itself. Because the proposed amendment to the rules provide
sufficient information to identify the licensee and no party opposes
the proposed changes, the Copyright Office is adopting the proposed
amendments as announced in the March 11 notice.
The only issue over which the commenters disagreed was whether a
single Notice of Intention to use a particular work is sufficient
notice to cover all possible format configurations, including both
those specifically identified on the notice and those which could be
used although not listed on the notice. The question arose because of a
comment DiMA made in its initial comment suggesting that the Office
promulgate ``a minimal set of regulations for the common situation in
which online entities will be distributing digital phonorecord
deliveries of sound recordings already covered by a mechanical
license.'' Because DiMA's suggestion was unclear, the Office opined
that DiMA's suggestion may have been intended to permit a licensee to
rely upon an earlier-filed notice, e.g., one filed in order to use the
license to make physical phonorecords, to cover the making of DPDs even
though the digital phonorecord format configuration was not listed on
that notice. We had stated in the March 11 notice that while it was
highly unlikely the final rule promulgated in this proceeding would
include any further amendments to address DiMA's suggestion, we would
consider DiMA's proposal and comments received on this issue for
possible future action.
DiMA, however, did not elaborate on its earlier comment, obviating
the need to consider its suggestion further. On the other hand, HFA/
NMPA and RIAA did file comments on the Office's proposed interpretation
of DiMA's suggestion. Interestingly, the record company representatives
and the publishing interests representatives take
[[Page 34580]]
diametrically opposed positions on whether a single notice covers all
configuration formats or whether additional Notices need to be filed
each time the licensee expects to use the musical work in a format not
previously identified.
RIAA maintains that the current regulations already ``permit a
licensee under section 115 to rely upon a Notice of Intention that had
been previously served or filed to make DPDs.'' It notes that the
Copyright Act recognizes a single compulsory license within section 115
and covers the making and distribution of a nondramatic musical work by
means of a digital audio transmission that results in a digital
phonorecord delivery (``DPD'') and that the regulations treat DPDs as
merely another phonorecord configuration. RIAA then turns to the
regulatory text, focusing on the provision that requires the licensee
to identify those phonorecord configurations already made and those
expected to be made under the license. See 37 CFR 201.18(c)(1)(iv). It
maintains that the phrase ``expected to be made'' does not require
absolute precision and that the licensee need only provide the
information ``in good faith and on the basis of the best knowledge,
information, and belief of the person signing the Notice. If so given,
later developments affecting the accuracy of such information shall not
affect the validity of the Notice.'' 37 CFR 201.18(d)(3), as amended.
According to RIAA, these provisions when taken together do not require
the filing of subsequent notices merely because a new type of
phonorecord configuration is being made and distributed under the
section 115 license.
RIAA then cites to an HFA comment offered during the initial
rulemaking proceeding,\3\ the purpose of which was to establish notice
and recordkeeping requirements for use of the section 115 license,
where HFA stated that it could accept the filing of a single notice
which listed all phonorecord configurations contemplated at the time of
the notice, provided that ``the regulations insure adequate notice of
use of additional forms to be filed for each type of phonorecord
configuration of a particular sound recording of a particular song
(which we feel is necessary for purposes of clarity and sensible
accounting in any event).'' Supplemental Statement Concerning
Regulations to be Promulgated by the Copyright Office Relative to the
Compulsory License Provisions of the Copyright Act (section 115),
submitted by the Harry Fox Agency, Inc., May 26, 1977. RIAA opines that
the Office adopted HFA's position and promulgated Sec. Sec.
201.19(e)(3)(ii)(D) and (f)(4), at least in part, to serve this
purpose. These two provisions of the rules require that specific
accounting information be reported separately for each phonorecord
configuration, thus giving the publishers accurate and timely
information about the number and types of phonorecords being made and
distributed under the compulsory license.
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\3\ This proceeding began on March 30, 1977, when the Copyright
Office published a notice in the Federal Register, announcing public
hearings to receive testimony on substantive issues related to
formulating regulations concerning the form, content and manner of
service of notices of intention and accounting statements. These
hearings took place on April 26 and 27, 1977. 42 FR 16837 (March 30,
1977). It concluded nearly 2\1/2\ years later with the publication
of final rules. 45 FR 79038 (November 28, 1980).
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NMPA and HFA take a radically different view of the current notice
requirements. They now argue that any provision or interpretation which
would allow the filing of a single Notice of Intention to cover format
configurations beyond those identified on the notice, ``would disrupt
longstanding industry practice and conflict directly with established
jurisprudence.'' They maintain that it is standard industry practice to
require each licensee to specify the configuration for which the
licensee seeks the license. They argue that the reason for imposing
configuration limitations is to provide the publishers with a means to
track the licensee's use of the musical work and to insure that the
appropriate royalty rate attaches to the different configurations. In
support of their position, NMPA and HFA cite two court cases which held
that the scope of a mechanical license was limited to the express terms
of the license. See Rodgers & Hammerstein Org. v. UMG Recordings, Inc.,
00 Civ. 9322 (JSM), 2001 U.S. Dist. LEXIS 16111 (S.D.N.Y. Sept. 26,
2001), and Fred Ahlert Music Corp. v. Warner/Chappell Music, Inc., 958
F. Supp. 170 (S.D.N.Y. 1997). Neither court, however, discusses the
terms of use applicable to a section 115 statutory license.
The Office acknowledges that HFA and NMPA offer a well-articulated
presentation of the current state of affairs with respect to mechanical
licenses negotiated in the marketplace but finds that their discussion
misses the mark. As a primary matter, HFA and NMPA overlook the fact
that a voluntary license negotiated in the marketplace between a
willing buyer and a willing seller are not the same as the license
Congress granted to licensees who make and distribute phonorecords
under the terms set forth in section 115 of the Copyright Act. The
terms of the statutory license are set by Congress and are not subject
to modification at will by the parties. Parties may use the statutory
license as a starting point, adopting those provisions that meet their
needs and modifying or eliminating those that do not. But, the result
is a negotiated license which varies from the section 115 statutory
license in significant ways.
NMPA and HFA, however, treat the statutory and negotiated licenses
as one and the same. Thus, they rely on the courts' interpretation of
voluntary license terms to inform the interpretation of similar
statutory and regulatory provisions that govern the statutory license,
but they fail to explain how the courts' interpretation of private
commercial licenses relates to the regulatory framework and the policy
considerations which underlie the notice and accounting requirements
adopted by the Register of Copyrights in 1980.
The relevant question is whether the current regulations adopted in
1980 require a compulsory licensee to file a new notice in the case
where the licensee seeks to expand its use of the section 115 license
to cover phonorecord configurations not listed on the Notice of
Intention to Use. A review of the comments and testimony from the
rulemaking proceeding by which the current regulations were promulgated
show that the question engendered some debate. During the early phase
of that proceeding, publishers sought a rule that would require a
licensee to file a separate notice for each separate type of
phonorecord configuration, but they backed away from that position in
their later comments. In Supplemental Comments filed on May 26, 1977,
the Harry Fox Agency stated its willingness to permit use of a single
notice listing those configurations the licensee is contemplating using
at the time of service, provided that the licensee subsequently
identified the use of new configurations on the accounting forms.
They may have changed their position in light of statements made by
the Register of Copyrights during public hearings held by the Copyright
Office in April 1977. In her comments, the Register spoke directly to
the question and made the observation that the notice was to contain
information that ``would be given as of the date that the Notice was
filed, and there [was] no obligation that it be kept up-to-date.'' In
taking this position, she contrasted the lack of a legal requirement to
update a notice served under section 115 with
[[Page 34581]]
the notice requirements for use of the cable compulsory license ``where
there is a requirement that it be kept up-to-date.'' Transcript of
Second Hearing on Implementation of the Copyright Law Revision, Docket
No. 77-3, at 46. (April 26, 1977).
Beyond the early exchanges, the parties did not address the
question further and the Copyright Office issued interim regulations on
December 29, 1977. 42 FR 64889 (December 29, 1977). These regulations
did not include any provision that would require a licensee to submit a
further formal notice to the copyright owner of actual use beyond the
initial notice that listed format configurations the licensee was using
at the time or expected to use in the future. The rules, however, did
include, and still do, a requirement that the licensee provide the
accounting information specified in Sec. Sec. 201.19(e)(3)(ii)(D) and
(f)(4)(i) for each phonorecord configuration actually made, thus
seeming to adopt the HFA suggestion for using statements of account to
provide further information on actual use.
In light of the fact that the purpose of the Notice of Intention is
merely to give notice to the copyright owner of a licensee's intention
to use the copyright owner's musical work to make and distribute
phonorecords subject to the terms of the section 115 compulsory
license, additional notices to update information that was correct at
the time of service are not part of the statutory scheme. Once a notice
is served, the copyright owner is on notice that the licensee will be
using the identified musical work to make phonorecords. The licensee is
then obligated to provide specific information about the types and
numbers of phonorecords made and distributed as part of the monthly and
annual statements of account, making it unnecessary to file follow-up
notices for this purpose.
III. Additional Issues
1. Further revisions to Sec. 201.19. DiMA offered no specific
comment on the three questions posed in the March 11 notice, but it has
requested that the Office modify Sec. 201.19 as follows: (1) To permit
statements of account to be signed and delivered by the compulsory
licensee or a duly authorized agent preparing the statement; (2) to
eliminate the requirement for a handwritten signature, given the
ability to work through an agent; and (3) to permit service of the
statements of account by regular mail or electronic delivery. MRI
requests the same three modifications.
In the current rulemaking, the Office sought to amend its rules to
expedite the filing of notices pursuant to section 115(b)(1) of the
Copyright Act and offered proposed amendments to Sec. 201.18 to
achieve this goal, while at the same time proposing limited changes to
Sec. 201.19 in order to harmonize the service requirements between the
two sections. See 66 FR 45241 (August 28, 2001). This notice expressly
stated that the Office was not considering further changes to Sec.
201.19 in this proceeding. Id. at 45242. While we understand DiMA's
interest in pursuing additional amendments in the interest of
streamlining the reporting process and will consider initiating a new
rulemaking proceeding to address these issues, we will not place the
current rulemaking on hold to consider new questions. The process with
respect to amending the rules to streamline the process for serving
notices under Sec. 201.18 has come to an end, and it is in the
interest of all parties that these final rules be adopted without
delay.
As part of this proceeding, however, amendments have already been
made to allow service of statements of account by regular mail. See 37
CFR 201.19(e)(7)(i), (ii) and (f)(7)(i) and (iii). Formerly, these
provisions required service by certified mail or registered mail, but
they have been amended to allow for service ``by mail or by reputable
courier service.'' However, the proposed rules did not include a
provision to permit service of statements of account by electronic
delivery because this proceeding had not considered amendments to Sec.
201.19 beyond those needed to provide the licensee with options for
sending the Statements as currently prepared. The rules governing the
Statements of Account differ significantly from those governing a
Notice of Intention in that they require the person signing the
document to certify the accuracy of the information in the Statements
of Account. Consequently, it would appear that the signature of the
certifying official constitutes a legal representation on behalf of the
licensee that should not be dismissed lightly without comment from the
affected parties and, thus, should be considered along with the other
issues identified by DiMA and MRI in a separate rulemaking.
2. Date of filing. Adegbonmire noted that the amended rules did not
clarify that a receipt from a reputable courier indicating the date of
attempted delivery would be acceptable as evidence of the date of
service, even though the March 11 notice stated that such proof would
be sufficient to establish the date of service. He proposes amending
proposed Sec. 201.18(f)(5) to include language expressly stating that
such receipt is acceptable proof for establishing the date of service.
We agree and have made the necessary changes to proposed Sec.
201.18(f)(5) and to Sec. Sec. 201.19(e)(7)(iv) and (f)(7)(iv).
He also suggested that the rules expressly recognize use of a
Delivery Confirmation receipt as proof of the date of service. We are
unfamiliar with this service and decline to adopt the suggestion to
specifically list a Delivery Confirmation receipt as evidence of the
date of service. Sections 201.18(f)(5) and 201.19(e)(7)(iv), however,
should not be interpreted as listing the only acceptable forms of
proof. In fact, the last sentence in these provisions leaves open the
possibility that the licensee may adduce other evidence to establish
the date of service. For that reason, we see no reason to list every
possible means of proof for establishing the date of service and have
only acknowledged the two specific means the parties have already
considered by virtue of the earlier notices.
3. Demand for electronic submission. Adegbonmire has also offered
comment on the proposed regulation that would permit a copyright owner
or its agent to demand that a notice containing more than 50 titles of
works be resubmitted in an electronic format. He proposes setting the
threshold at 25 titles rather than 50 to facilitate the process, though
he does not state how it would do so. Consequently, we see no reason to
reconsider the decision to set the threshold at more than 50 titles.
He also suggests that the rule itself violates the statute because
the rule would allow a licensee to resubmit its notice in an electronic
format within 30 days after receipt of the demand. We disagree.
Provided that the initial notice adheres to the rules and is served on
the copyright owner or its agent before or within 30 days of making,
and before distributing any phonorecords of the listed works, then the
licensee has fulfilled the statutory requirement to serve notice. The
request for an electronic submission is a subsequent requirement that
must be met in accordance with the rules. The requirement itself does
not raise questions of whether the filing is timely; rather, it
addresses compliance with format and submission requirements. Thus,
failure to comply with the copyright owner's demand for an electronic
submission would constitute a violation of the rules governing use of
the license and could provide the basis for a copyright infringement
suit.
There being no other matters for consideration, the Office is
announcing final rules--incorporating the amendments discussed--
governing the
[[Page 34582]]
filing of Notices of Intention to Use a section 115 license for the
making and distribution of phonorecords.
IV. Regulatory Flexibility Act
Although the Copyright Office, as a department of the Library of
Congress and 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 amendments to Sec. Sec.
201.18 and 201.19 on individual authors and small entities. The
Register has determined that the final regulations will not have a
significant economic impact on a substantial number of individual
compulsory licensees or small entities that would require provision of
special relief for small entities in the regulations, and that the
final regulations are, to the extent consistent with the stated
objectives of applicable statutes, designed to minimize any significant
economic impact on small entities.
List of Subjects in 37 CFR Part 201
Copyright.
Final Regulation
0
In consideration of the foregoing, the Copyright Office is amending
part 201 of 37 CFR as follows:
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
0
2. Section 201.18 is revised to read follows:
Sec. 201.18 Notice of intention to obtain a compulsory license for
making and distributing phonorecords of nondramatic musical works.
(a) General. (1) A ``Notice of Intention'' is a Notice identified
in section 115(b) of title 17 of the United States Code, and required
by that section to be served on a copyright owner or, in certain cases,
to be filed in the Copyright Office, before or within thirty days after
making, and before distributing any phonorecords of the work, in order
to obtain a compulsory license to make and distribute phonorecords of
nondramatic musical works.
(2) A Notice of Intention shall be served or filed for nondramatic
musical works embodied, or intended to be embodied, in phonorecords
made under the compulsory license. A Notice of Intention may designate
any number of nondramatic musical works, provided that the copyright
owner of each designated work or, in the case of any work having more
than one copyright owner, any one of the copyright owners is the same
and that the information required under paragraphs (d)(1)(i) through
(iv) of this section does not vary. For purposes of this section, a
Notice which lists multiple works shall be considered a composite
filing of multiple Notices and fees shall be paid accordingly if filed
in the Copyright Office under paragraph (f) of this section (i.e., a
separate fee, in the amount set forth in Sec. 201.3(e)(1), shall be
paid for each work listed in the Notice).
(3) For the purposes of this section, the term copyright owner, in
the case of any work having more than one copyright owner, means any
one of the co-owners.
(4) For the purposes of this section, service of a Notice of
Intention on a copyright owner may be accomplished by means of service
of the Notice on either the copyright owner or an agent of the
copyright owner with authority to receive the Notice. In the case where
the work has more than one copyright owner, the service of the Notice
on any one of the co-owners of the nondramatic musical work or upon an
authorized agent of one of the co-owners identified in the Notice of
Intention shall be sufficient with respect to all co-owners.
Notwithstanding paragraph (a)(2) of this section, a single Notice may
designate works not owned by the same copyright owner in the case where
the Notice is served on a common agent of multiple copyright owners,
and where each of the works designated in the Notice is owned by any of
the copyright owners who have authorized that agent to receive Notices.
(5) For purposes of this section, a copyright owner or an agent of
a copyright owner with authority to receive Notices of Intention may
make public a written policy that it will accept Notices of Intention
to make and distribute phonorecords pursuant to 17 U.S.C. 115 which
include less than all of the information required by this section, in a
form different than required by this section, or delivered by means
(including electronic transmission) other than those required by this
section. Any Notice provided in accordance with such policy shall not
be rendered invalid for failing to comply with the specific
requirements of this section.
(6) For the purposes of this section, a digital phonorecord
delivery shall be treated as a type of phonorecord configuration, and a
digital phonorecord delivery shall be treated as a phonorecord
manufactured, made, and distributed on the date the phonorecord is
digitally transmitted.
(b) Agent. An agent who has been authorized to accept Notices of
Intention in accordance with paragraph (a)(4) of this section and who
has received a Notice of Intention on behalf of a copyright owner shall
provide within two weeks of the receipt of that Notice of Intention the
name and address of the copyright owner or its agent upon whom the
person or entity intending to obtain the compulsory license shall serve
Statements of Account and the monthly royalty in accordance with Sec.
201.19(a)(4).
(c) Form. The Copyright Office does not provide printed forms for
the use of persons serving or filing Notices of Intention.
(d) Content. (1) A Notice of Intention shall be clearly and
prominently designated, at the head of the notice, as a ``Notice of
Intention to Obtain a Compulsory License for Making and Distributing
Phonorecords,'' and shall include a clear statement of the following
information:
(i) The full legal name of the person or entity intending to obtain
the compulsory license, together with all fictitious or assumed names
used by such person or entity for the purpose of conducting the
business of making and distributing phonorecords;
(ii) The telephone number, the full address, including a specific
number and street name or rural route of the place of business, and an
e-mail address, if available, of the person or entity intending to
obtain the compulsory license, and if a business organization intends
to obtain the compulsory license, the name and title of the chief
executive officer, managing partner, sole proprietor or other person
similarly responsible for the management of such entity. A post office
box or similar designation will not be sufficient for this purpose
except where it is the only address that can be used in that geographic
location.
(iii) The information specified in paragraphs (d)(1)(i) and (ii) of
this section for the primary entity expected to be engaged in the
business of making and distributing phonorecords under the license or
of authorizing such making and distribution (for example: a record
company or digital music service), if an entity intending to obtain the
compulsory license is a holding company, trust or other entity that is
not expected to be actively engaged in the business of making and
distributing phonorecords under the license or of authorizing such
making and distribution;
(iv) The fiscal year of the person or entity intending to obtain
the compulsory license. If that fiscal year is
[[Page 34583]]
a calendar year, the Notice shall state that this is the case;
(v) For each nondramatic musical work embodied or intended to be
embodied in phonorecords made under the compulsory license:
(A) The title of the nondramatic musical work;
(B) The name of the author or authors, if known;
(C) A copyright owner of the work, if known;
(D) The types of all phonorecord configurations already made (if
any) and expected to be made under the compulsory license (for example:
single disk, long-playing disk, cassette, cartridge, reel-to-reel, a
digital phonorecord delivery, or a combination of them);
(E) The expected date of initial distribution of phonorecords
already made (if any) or expected to be made under the compulsory
license;
(F) The name of the principal recording artist or group actually
engaged or expected to be engaged in rendering the performances fixed
on phonorecords already made (if any) or expected to be made under the
compulsory license;
(G) The catalog number or numbers, and label name or names, used or
expected to be used on phonorecords already made (if any) or expected
to be made under the compulsory license; and
(H) In the case of phonorecords already made (if any) under the
compulsory license, the date or dates of such manufacture.
(vi) In the case where the Notice will be filed with the Copyright
Office pursuant to paragraph (f)(3) of this section, the Notice shall
include an affirmative statement that with respect to the nondramatic
musical work named in the Notice of Intention, the registration records
or other public records of the Copyright Office have been searched and
found not to identify the name and address of the copyright owner of
such work.
(2) A ``clear statement'' of the information listed in paragraph
(d)(1) of this section requires a clearly intelligible, legible, and
unambiguous statement in the Notice itself and without incorporation by
reference of facts or information contained in other documents or
records.
(3) Where information is required to be given by paragraph (d)(1)
of this section ``if known'' or as ``expected,'' such information shall
be given in good faith and on the basis of the best knowledge,
information, and belief of the person signing the Notice. If so given,
later developments affecting the accuracy of such information shall not
affect the validity of the Notice.
(e) Signature. The Notice shall be signed by the person or entity
intending to obtain the compulsory license or by a duly authorized
agent of such person or entity.
(1) If the person or entity intending to obtain the compulsory
license is a corporation, the signature shall be that of a duly
authorized officer or agent of the corporation.
(2) If the person or entity intending to obtain the compulsory
license is a partnership, the signature shall be that of a partner or
of a duly authorized agent of the partnership.
(3) If the Notice is signed by a duly authorized agent for the
person or entity intending to obtain the compulsory license, the Notice
shall include an affirmative statement that the agent is authorized to
execute the Notice of Intention on behalf of the person or entity
intending to obtain the compulsory license.
(4) If the Notice is served electronically, the person or entity
intending to obtain the compulsory license and the copyright owner
shall establish a procedure to verify that the Notice is being
submitted upon the authority of the person or entity intending to
obtain the compulsory license.
(f) Filing and service. (1) If the registration records or other
public records of the Copyright Office identify the copyright owner of
the nondramatic musical works named in the Notice of Intention and
include an address for such owner, the Notice may be served on such
owner by mail sent to, or by reputable courier service at, the last
address for such owner shown by the records of the Office. It shall not
be necessary to file a copy of the Notice in the Copyright Office in
this case.
(2) If the Notice is sent by mail or delivered by reputable courier
service to the last address for the copyright owner shown by the
records of the Copyright Office and the Notice is returned to the
sender because the copyright owner is no longer located at the address
or has refused to accept delivery, the original Notice as sent shall be
filed in the Copyright Office. Notices of Intention submitted for
filing under this paragraph (f)(2) shall be submitted to the Licensing
Division of the Copyright Office, shall be accompanied by a brief
statement that the Notice was sent to the last address for the
copyright owner shown by the records of the Copyright Office but was
returned, and may be accompanied by appropriate evidence that it was
mailed to, or that delivery by reputable courier service was attempted
at, that address. In these cases, the Copyright Office will specially
mark its records to consider the date the original Notice was mailed,
or the date delivery by courier service was attempted, if shown by the
evidence mentioned above, as the date of filing. An acknowledgment of
receipt and filing will be provided to the sender.
(3) If, with respect to the nondramatic musical works named in the
Notice of Intention, the registration records or other public records
of the Copyright Office do not identify the copyright owner of such
work and include an address for such owner, the Notice may be filed in
the Copyright Office. Notices of Intention submitted for filing shall
be accompanied by the fee specified in Sec. 201.3(e). A separate fee
shall be assessed for each title listed in the Notice. Notices of
Intention will be filed by being placed in the appropriate public
records of the Licensing Division of the Copyright Office. The date of
filing will be the date when the Notice and fee are both received in
the Copyright Office. An acknowledgment of receipt and filing will be
provided to the sender.
(4) Alternatively, if the person or entity intending to obtain the
compulsory license knows the name and address of the copyright owner of
the nondramatic musical work, or the agent of the copyright owner as
described in paragraph (a)(4) of this section, the Notice of Intention
may be served on the copyright owner or the agent of the copyright
owner by sending the Notice by mail or delivering it by reputable
courier service to the address of the copyright owner or agent of the
copyright owner. For purposes of section 115(b)(1) of title 17 of the
United States Code, the Notice will not be considered properly served
if the Notice is not sent to the copyright owner or the agent of the
copyright owner as described in paragraph (a)(4) of this section, or if
the Notice is sent to an incorrect address.
(5) If a Notice of Intention is sent by certified mail or
registered mail, a mailing receipt shall be sufficient to prove that
service was timely. If a Notice of Intention is delivered by a
reputable courier, documentation from the courier showing the first
date of attempted delivery shall also be sufficient to prove that
service was timely. In the absence of a receipt from the United States
Postal Service showing the date of delivery or documentation showing
the first date of attempted delivery by a reputable courier, the
compulsory licensee shall bear the burden of proving that the
[[Page 34584]]
Notice of Intention was served in a timely manner.
(6) If a Notice served upon a copyright owner or an authorized
agent of a copyright owner identifies more than 50 works that are
embodied or intended to be embodied in phonorecords made under the
compulsory license, the copyright owner or the authorized agent may
send the person who served the Notice a demand that a list of each of
the works so identified be resubmitted in an electronic format, along
with a copy of the original Notice. The person who served the Notice
must submit such a list, which shall include all of the information
required in paragraph (d)(1)(v) of this section, within 30 days after
receipt of the demand from the copyright owner or authorized agent. The
list shall be submitted on magnetic disk or another medium widely used
at the time for electronic storage of data, in the form of a flat file,
word processing document or spreadsheet readable with computer software
in wide use at such time, with the required information identified and/
or delimited so as to be readily discernible. The list may be submitted
by means of electronic transmission (such as e-mail) if the demand from
the copyright owner or authorized agent states that such submission
will be accepted.
(g) Harmless errors. Harmless errors in a Notice that do not
materially affect the adequacy of the information required to serve the
purposes of section 115(b)(1) of title 17 of the United States Code,
shall not render the Notice invalid.
0
3. Section 201.19 is amended as follows:
0
a. by revising paragraph (a)(3);
0
b. by redesignating paragraphs (a)(4) through (a)(11) as paragraph
(a)(5) through (a)(12), respectively;
0
c. by adding a new paragraph (a)(4);
0
d. by removing the phrase ``subparagraph (B) of this Sec.
201.19(a)(5)(iii)'' and adding ``paragraph (a)(7)(iii)(B) of this
section'' in its place each place it appears;
0
e. by removing the phrase ``paragraph (B) of this Sec.
201.19(a)(5)(iii)'' and adding ``paragraph (a)(7)(iii)(B) of this
section'' in its place each place it appears;
0
f. in newly designated paragraph (a)(7), by removing the phrase
``paragraph (a)(5)'' and adding ``paragraph (a)(6) of this section'' in
its place;
0
g. in paragraph (c)(2)(iii), by removing the phrase ``paragraph
(a)(7)'' and adding ``paragraph (a)(10)'' in its place;
0
h. in paragraph (d) introductory text, by removing the phrase ``Sec.
201.19(a)(4)'' and adding ``paragraph (a)(5) of this section'' in its
place;
0
i. by revising paragraph (e)(7)(i);
0
j. by revising paragraph (e)(7)(ii)(A);
0
k. in paragraph (e)(7)(ii)(B), by removing the phrase ``Sec.
202.19(e)(7)(ii)'' and adding ``this paragraph (e)(7)(ii)'' in its
place;
0
l. in paragraph (e)(7)(ii)(D), by removing the phrase ``this Sec.
201.19(e)(7)(ii)'' and adding ``this paragraph (e)(7)(ii)'' in its
place;
0
m. by adding a new paragraph (e)(7)(iv);
0
n. by revising paragraph (f)(3)(iii);
0
o. in paragraph (f)(4)(ii), by removing the phrase ``paragraphs (A)
through (F) of this Sec. 201.19(f)(4)(i)'' and adding ``paragraphs
(f)(4)(i)(A) through (F) of this section'' in its place;
0
p. in paragraph (f)(5), by removing the phrase ``[subject to paragraph
(f)(3)(iii)(A)]'';
0
q. by revising paragraph (f)(7)(i);
0
r. by revising paragraph (f)(7)(iii)(A);
0
s. in paragraph (f)(7)(iii)(B), by removing the phrase ``Sec.
202.19(f)(7)(iii)'' and adding ``this paragraph (f)(7)(iii)'' in its
place; and
0
t. by adding a new paragraph (f)(7)(iv).
0
The revisions and additions to Sec. 201.19 read as follows:
Sec. 201.19 Royalties and statements of account under compulsory
license for making and distributing phonorecords of nondramatic musical
works.
(a) * * *
(3) For the purposes of this section, the term copyright owner, in
the case of any work having more than one copyright owner, means any
one of the co-owners.
(4) For the purposes of this section, the service of a Statement of
Account on a copyright owner under paragraph (e)(7) or (f)(7) of this
section may be accomplished by means of service on either the copyright
owner or an agent of the copyright owner with authority to receive
Statements of Account on behalf of the copyright owner. In the case
where the work has more than one copyright owner, the service of the
Statement of Account on one co-owner or upon an agent of one of the co-
owners shall be sufficient with respect to all co-owners.
* * * * *
(e) * * *
(7) Service. (i) Each Monthly Statement of Account shall be served
on the copyright owner or the agent with authority to receive Monthly
Statements of Account on behalf of the copyright owner to whom or which
it is directed, together with the total royalty for the month covered
by the Monthly Statement, by mail or by reputable courier service on or
before the 20th day of the immediately succeeding month. However, in
the case where the licensee has served its Notice of Intention upon an
agent of the copyright owner pursuant to Sec. 201.18, the licensee is
not required to serve Monthly Statements of Account or make any royalty
payments until the licensee receives from the agent with authority to
receive the Notice of Intention notice of the name and address of the
copyright owner or its agent upon whom the licensee shall serve Monthly
Statements of Account and the monthly royalty fees. Upon receipt of
this information, the licensee shall serve Monthly Statements of
Account and all royalty fees covering the intervening period upon the
person or entity identified by the agent with authority to receive the
Notice of Intention by or before the 20th day of the month following
receipt of the notification. It shall not be necessary to file a copy
of the Monthly Statement in the Copyright Office.
(ii)(A) In any case where a Monthly Statement of Account is sent by
mail or reputable courier service and the Monthly Statement of Account
is returned to the sender because the copyright owner or agent is no
longer located at that address or has refused to accept delivery, or in
any case where an address for the copyright owner is not known, the
Monthly Statement of Account, together with any evidence of mailing or
attempted delivery by courier service, may be filed in the Licensing
Division of the Copyright Office. Any Monthly Statement of Account
submitted for filing in the Copyright Office shall be accompanied by a
brief statement of the reason why it was not served on the copyright
owner. A written acknowledgment of receipt and filing will be provided
to the sender.
* * * * *
(iv) If a Monthly Statement of Account is sent by certified mail or
registered mail, a mailing receipt shall be sufficient to prove that
service was timely. If a Monthly Statement of Account is delivered by a
reputable courier, documentation from the courier showing the first
date of attempted delivery shall also be sufficient to prove that
service was timely. In the absence of a receipt from the United States
Postal Service showing the date of delivery or documentation showing
the first date of attempted delivery by a reputable courier, the
compulsory licensee shall bear the burden of proving that the Monthly
Statement of Account was served in a timely manner.
(f) * * *
(3) * * *
(iii) If the compulsory licensee is a business organization, the
name and
[[Page 34585]]
title of the chief executive officer, managing partner, sole proprietor
or other person similarly responsible for the management of such
entity.
* * * * *
(7) Service. (i) Each Annual Statement of Account shall be served
on the copyright owner or the agent with authority to receive Annual
Statements of Account on behalf of the copyright owner to whom or which
it is directed by mail or by reputable courier service on or before the
20th day of the third month following the end of the fiscal year
covered by the Annual Statement. It shall not be necessary to file a
copy of the Annual Statement in the Copyright Office. An Annual
Statement of Account shall be served for each fiscal year during which
at least one Monthly Statement of Account shall be served for each
fiscal year during which at least one Monthly Statement of Account was
required to have been served under paragraph (e)(7) of this section.
* * * * *
(iii)(A) In any case where an Annual Statement of Account is sent
by mail or by reputable courier service and is returned to the sender
because the copyright owner or agent is not located at that address or
has refused to accept delivery, or in any case where an address for the
copyright owner is not known, the Annual Statement of Account, together
with any evidence of mailing or attempted delivery by courier service,
may be filed in the Licensing Division of the Copyright Office. Any
Annual Statement of Account submitted for filing shall be accompanied
by a brief statement of the reason why it was not served on the
copyright owner. A written acknowledgment of receipt and filing will be
provided to the sender.
* * * * *
(iv) If an Annual Statement of Account is sent by certified mail or
registered mail, a mailing receipt shall be sufficient to prove that
service was timely. If an Annual Statement of Account is delivered by a
reputable courier, documentation from the courier showing the first
date of attempted delivery shall also be sufficient to prove that
service was timely. In the absence of a receipt from the United States
Postal Service showing the date of delivery or documentation showing
the first date of attempted delivery by a reputable courier, the
compulsory licensee shall bear the burden of proving that the Annual
Statement of Account was served in a timely manner.
* * * * *
Dated: June 7, 2004.
Marybeth Peters,
Register of Copyrights.
So Approved.
James H. Billington,
The Librarian of Congress.
[FR Doc. 04-14084 Filed 6-21-04; 8:45 am]
BILLING CODE 1410-33-P