[Federal Register: October 8, 2003 (Volume 68, Number 195)]
[Proposed Rules]
[Page 58054]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc03-20]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2002-1D]
Notice and Recordkeeping for Use of Sound Recordings Under
Statutory License
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
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SUMMARY: The Copyright Office of the Library of Congress is requesting
public comment on the adoption of regulations for records of use of
sound recordings performed pursuant to the statutory license for public
performances of sound recordings by means of digital audio
transmissions between October 28, 1998, and the effective date of soon-
to-be-announced interim regulations.
DATES: Comments are due no later than November 24, 2003. Reply comments
are due no later than December 22, 2003.
ADDRESSES: An original and five copies of any comment or reply comment
shall be delivered by hand to: Office of the General Counsel, James
Madison Memorial Building, Room LM-403, First and Independence Avenue,
SE., Washington, DC 20559-6000; or mailed to: Copyright Arbitration
Royalty Panel (CARP), PO Box 70977, Southwest Station, Washington, DC
20024-0977.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
William J. Roberts, Jr., Senior Attorney, PO Box 70977, Southwest
Station, Washington, DC 20024. Telephone: (202) 707-8380; Telefax:
(202) 252-3423.
SUPPLEMENTARY INFORMATION:
Background
The Copyright Act grants copyright owners of sound recordings the
exclusive right to perform their works publicly by means of digital
audio transmissions subject to certain limitations and exceptions.
Among the limitations placed on the performance of sound recordings is
a statutory license that permits certain eligible subscription,
nonsubscription, satellite digital audio radio, business establishment
and new subscription services to perform those sound recordings
publicly by means of digital audio transmissions. 17 U.S.C. 114.
Similarly, copyright owners of sound recordings are granted the
exclusive right to make copies of their works subject to certain
limitations and exceptions. Among the limitations placed on the
reproduction of sound recordings is a statutory license that permits
certain eligible subscription, nonsubscription, satellite digital
audio, business establishment and new subscription services to make
ephemeral copies of those sound recordings to facilitate their digital
transmission. 17 U.S.C. 112(e).
Both the section 114 and 112 licenses require services to, among
other things, report to copyright owners of sound recordings on the use
of their works. Both licenses direct the Librarian of Congress to
establish regulations to give copyright owners reasonable notice of the
use of their works and create and maintain records of use for delivery
to copyright owners. 17 U.S.C. 114(f)(4)(A) and 17 U.S.C. 112(e)(4).
The purpose of the exchange of data is to ensure that the royalties
collected under the statutory licenses are distributed to the correct
recipients.
The Copyright Office will soon be publishing interim regulations
setting forth the categories of information that services making use of
sound recordings under the statutory licenses must report. Those
interim regulations will require services to identify performances of
sound recordings that they transmit pursuant to the statutory license,
providing information such as the titles of sound recordings that are
transmitted, the names of the recording artists, etc. However, the
interim regulations will be prospective in nature, meaning that they
will not apply to the period from October 28, 1998, to the effective
date of the interim rules. Consequently, there are currently no
regulations establishing the requirements for creating and reporting
records of use for this earlier time period.\1\ While it is certain
that many services have maintained few or, in many instances, no
records of prior uses, a mechanism must be adopted to account for the
performances that occurred during this period in order to distribute
the royalty fees collected during this period. Thus, we seek public
comment as to the form and content such regulations should take.
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\1\ There is one exception. Regulations, codified at 37 CFR
201.36, are already in place for preexisting subscription services,
i.e., subscription services in existence before July 31, 1998. See
17 U.S.C. 114(j)(11); see also 67 FR 5791 (February 7, 2002). This
notice of inquiry seeks comments on requirements for records of use
for all types of services operating under the section 114 statutory
license except preexisting subscription services.
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Request for Comment
Incomplete and absent records create serious difficulties for the
Copyright Office in fashioning regulations that apply to prior uses of
sound recordings. If only partial prior records of use are reported,
and if only some services are able to submit such reports, the data
gathered from those records is likely to skew the royalty distribution
process. How should the Office address this problem? Should the Office
require licensees to report actual performance data for the historical
period, if available; and if so, what elements should be reported,
bearing in mind that the information provided must be sufficient to
identify the copyright owners and performers who are the beneficiaries
of these licenses? What, if any, proxies may be used in lieu of
incomplete or missing prior records? Are there costs associated with
using proxies, and if so, who should bear the cost of obtaining use of
these proxies?
The Copyright Office seeks answers to these questions and
encourages interested parties to consider the costs and benefits to
both the licensees and the copyright owners when formulating a
mechanism for accounting for past performances. In particular, we seek
concrete proposals and proposed regulatory language to implement rules
for the reporting of prior records of use. Services and copyright
owners are encouraged to explore the possibility of joint submissions
of comments that represent consensus among interested parties.
Dated: October 3, 2003.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 03-25523 Filed 10-7-03; 8:45 am]
BILLING CODE 1410-33-P