[Federal Register: May 31, 2005 (Volume 70, Number 103)]
[Rules and Regulations]
[Page 30901-30916]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31my05-7]
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LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Chapter III
[Docket No. RM 2005-1]
Procedural Regulations for the Copyright Royalty Board
AGENCY: Copyright Royalty Board, Library of Congress.
ACTION: Procedural regulations with request for comments.
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SUMMARY: The Interim Chief Copyright Royalty Judge, on behalf of the
Copyright Royalty Board of the Library of Congress, is issuing these
regulations, governing the organization, administration, and procedures
of the Board, for immediate use in proceedings that are subject to the
jurisdiction of Copyright Royalty Judges. Public comments are sought on
these regulations.
DATES: These regulations are effective on May 31, 2005.
Written comments should be received no later than June 30, 2005.
Reply comments should be received no later than July 21, 2005.
ADDRESSES: If hand delivered by a private party, an original and five
copies of comments and reply comments must be brought to Room LM-401 of
the James Madison Memorial Building, Monday through Friday, between
8:30 a.m. and 5 p.m., and the envelope must be addressed as follows:
Copyright Royalty Board, Library of Congress, James Madison Memorial
Building, LM-401, 101 Independence Avenue, SE., Washington, DC 20559-
6000. If delivered by a commercial courier (excluding overnight
delivery services such as Federal Express, United Parcel Service and
similar overnight delivery services), an original and five copies of
comments and reply comments must be delivered to the Congressional
Courier Acceptance Site located at 2nd and D Street, NE., Monday
through Friday, between 8:30 a.m. and 4 p.m., and the envelope must be
addressed as follows: Copyright Royalty Board, Library of Congress,
James Madison Memorial Building, LM-403, 101 Independence Avenue, SE.,
Washington, DC 20559-6000. If sent by mail (including overnight
delivery using United States Postal Service Express Mail), an original
and five copies of comments and reply comments must be addressed to:
Copyright Royalty Board, P.O. Box 70977, Southwest Station, Washington,
DC 20024-0977. Comments and reply comments may not be delivered by
means of overnight delivery services such as Federal Express, United
Parcel Service, etc., due to delays in processing receipt of such
deliveries.
FOR FURTHER INFORMATION CONTACT: William J. Roberts, Jr., Senior
Attorney, or Abioye E. Oyewole, CRB Program Specialist. Telephone (202)
707-8380. Telefax: (202) 252-3423.
SUPPLEMENTARY INFORMATION: On November 30, 2004, the President signed
into law the Copyright Royalty and Distribution Reform Act of 2004 (the
``Reform Act''), Public Law 108-419, 118 Stat. 2341. This Act, which
becomes effective on May 31, 2005, amends the Copyright Act, title 17
of the United States Code with respect to the administration of the
various statutory copyright licenses, phasing out the Copyright
Arbitration Royalty Panel (``CARP'') system and replacing the
arbitrators with three permanent Copyright Royalty Judges.\1\
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\1\ Under the Act, the Copyright Royalty Judges will conduct
proceedings to ``* * * make determinations and adjustments of
reasonable terms and rates of royalty payments as provided in
[Copyright Act] sections 112(e), 114, 115, 116, 118, 119 and 1004,''
``to make determinations concerning the adjustment of the copyright
royalty rates under [Copyright Act] section 111,'' to authorize
distributions under sections 111, 119, and 1007 of the Act, and
``[t]o determine the status of a digital audio recording device or a
digital audio interface device under sections 1002 and 1003, as
provided in section 1010.'' See 17 U.S.C. 801(b).
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Statutory licenses, sometimes referred to as ``compulsory''
licenses, enable a person to use copyrighted materials unilaterally,
without contractual permission of the owners of the materials; so long
as the user complies with applicable reporting and royalty payment
obligations, such uses are not infringements of the owners' copyright.
The first statutory license, created in 1909, allowed manufacturers of
piano rolls to use copyrighted nondramatic musical works; the license
fee was set by Congress in the statute. See, Recording Industry Ass'n
v. Copyright Royalty Tribunal, 662 F.2d. 1 (D.C. Cir. 1981). In 1976,
as part of major revisions to the Copyright Act, Congress greatly
enlarged the regime for statutory licenses, reflecting the development
of new communications industries and media. Henceforth, the rates for
the statutory licenses would be adjusted by administrative decision.
And, in those instances where the statutory license fees would be paid
into royalty pools (as opposed to payments made directly to copyright
owners), the 1976 amendments to the Copyright Act set up administrative
proceedings to adjudicate distribution disputes. See, Christian
Broadcasting Network, Inc. v. Copyright Royalty Tribunal, 720 F.2d
1295, 1300 (D.C. Cir. 1983).
Finding the right administrative structure to set rates and make
distributions for the expanded array of statutory licenses has proven
problematic. Initially, Congress established a stand-alone
administrative agency--the former Copyright Royalty Tribunal--to
perform these tasks. However, ``there was insufficient work to justify
the existence of a permanent body * * * '' National Ass'n of
Broadcasters v. Librarian of Congress, 146 F.3d 907, 912 (D.C. Cir.
1998). Next, in 1993, Congress transferred the ratemaking and
distribution functions to the Library of Congress. In cases where the
parties could not reach agreement, the controversies would be referred
to an ad hoc CARP. The CARP decisions were then reviewed by the
Librarian for possible arbitrariness. Id. at 912-13. But the CARP
system presented perceived problems of continuity, consistency, and
expense.
Under the Reform Act, three permanent Copyright Royalty Judges will
be appointed by the Librarian of Congress to encourage settlements and,
when necessary, resolve statutory license disputes. The expectation is
that the Copyright Royalty Judges, appointed to staggered, six-year
terms, will provide greater decisional stability, yielding the
advantages of the former Copyright Royalty Tribunal, but with greater
efficiency and expertise. On February 7, 2005, the Librarian of
Congress appointed an interim Chief Copyright Royalty Judge and the
Copyright Royalty Board (``CRB'' or ``Board'') was subsequently
established within the Library of Congress to house the Copyright
Royalty Judges.
These regulations implement the requirement of section 803(b)(6)(A)
of the Copyright Act \2\ that directs the Copyright Royalty Judges to
``issue regulations to govern [their] proceedings'' within 120 days of
their
[[Page 30902]]
appointment.\3\ Congress did not intend for these regulations to be
issued as ``proposed rules'' or ``interim regulations.'' \4\ Hence,
unless amended, these regulations will be used in the copyright
statutory license proceedings conducted by the Copyright Royalty Judges
under the Reform Act.\5\ Nevertheless, comments are sought at this time
to identify the need for prompt correction of any errors and to inform
the incoming, permanent Copyright Royalty Judges as to any need for
further rulemaking proceedings.
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\2\ Unless otherwise noted, all references are to Chapter 8 of
title 17 of the United States Code as in effect on May 31, 2005.
\3\ Subsection (a) of section 6 of the Reform Act, the
``effective date and transition provisions,'' required the
appointment of one or more interim Copyright Royalty Judges, within
90 days of enactment, to perform the functions of the permanent
Copyright Royalty Judges until they are appointed.
\4\ See Copyright Act section 803(b)(6)(B), directing that the
CARP regulations will serve as the ``interim regulations'' for the
Copyright Royalty Judges until the regulations under subparagraph
(A) are adopted.
\5\ Ongoing proceedings that are being conducted under the CARP
system regulations, 37 CFR Part 251, will continue to use those
regulations. Similarly, the existing substantive provisions for
compulsory license rates and distributions, 37 CFR Parts 253-256,
258, and 260-262, will remain in effect, as codified in Chapter II,
until superceded by the decisions and regulations of the Copyright
Royalty Judges pursuant to the Reform Act.
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The Reform Act prescribes, to an exceptionally detailed degree, the
procedures that must be adopted for use in proceedings before the
Copyright Royalty Judges. These regulations track those statutory
requirements. Also, these regulations are often drawn from the
procedural regulations used by the Copyright Office for the conduct of
CARP proceedings. However, interested persons are encouraged to
carefully scrutinize these regulations, as these CRB regulations do
depart from the CARP procedural regulations in a number of instances.
Comments are sought especially to identify any possible, inadvertent
inconsistencies between these regulations and the requirements of the
Copyright Act. Any comments that would bring to the Board's attention
areas where further procedural guidance would be helpful, or where
these regulations have created unnecessary burdens, would be most
welcome.
The following items may be of particular interest:
Reservation of Copyright Act Legal Issues to the Register of
Copyrights. A distinctive feature of the adjudicative regime set up by
the Reform Act is its formal division of fact and copyright law
determinations.
Under the Reform Act, Copyright Royalty Judges are guaranteed
``full independence in making determinations concerning adjustments and
determinations of copyright royalty rates and terms, the distribution
of copyright royalties, the acceptance or rejection of royalty claims,
rate adjustment petitions, and petitions to participate, and in issuing
other rulings under this title * * * '' 17 U.S.C. 802(f)(1)(A)(i).
These findings, determinations, and rulings of the Copyright Royalty
Judges are not reviewable, at the administrative level, by any other
official. The final determinations of the Copyright Royalty Judges will
go directly to the court for judicial review, when sought. 17 U.S.C.
803(d).\6\
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\6\ This ``full[y] independen[t]'' role is very different from
that of a typical, federal administrative law judge (ALJ) rendering
recommended decisions for an agency. Compare, e.g., 46 CFR
502.227(a)(6) (Federal Maritime Commission retains plenary authority
to override decision of the ALJ); 30 U.S.C. 823(d)(2)(A)(ii)((I)
(ALJ's unsupported factual decision is reversible by Federal Mine
Safety and Health Review Commission); 5 CFR 2423.41(b) (Federal
Labor Relations Authority has unrestricted authority to reject ALJ's
decision ``[w]henever exceptions are filed''; 10 CFR 2.341 (Nuclear
Regulatory Commission retains discretion to review ALJ decisions for
clear error); Model Adjudication Rules, Administrative Conference of
the U.S., Rule 410, 11 T.M. Cooley L. Rev. 75 (1994) (recommending
retention of plenary authority to review factual findings).
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At the same time, the Reform Act reserves to the Register of
Copyrights control over Copyright Act interpretive policy. The Register
``may review for legal error the resolution by the Copyright Royalty
Judges of a material question of substantive law under this title that
underlies or is contained in a final determination of the Copyright
Royalty Judges.'' 17 U.S.C. 802(f)(1)(D). The statute also provides for
referrals of significant Copyright Act interpretive issues to the
Register, prior to a final determination, during the course of ongoing
Copyright Royalty Judge proceedings. Referral of a ``material question
of substantive law * * * '' is discretionary, something one or more of
the presiding Copyright Royalty Judges ``may request * * * '' 17 U.S.C.
802(f)(1)(A) (emphasis added), on their motion or on the motion of a
participant in a proceeding. But, if the material question of
substantive law is a ``novel'' one, ``the Copyright Royalty Judges
shall request a decision of the Register of Copyrights.'' 17 U.S.C.
802(f)(1)(B) (emphasis added). These regulations provide procedures for
the discretionary and mandatory interlocutory referrals.
The Reform Act anticipates possible instances where a determination
of the Copyright Royalty Judges is perceived by the Register of
Copyrights to be inconsistent with the Register's interpretation of the
Copyright Act, but their decision has become final and is judicially
reviewable. 17 U.S.C. 802(f)(1)(D). This would be a most undesirable
situation for all concerned. These procedural regulations seek to
minimize the likelihood of such an event by attempting to identify
referable ``material questions'' at the earliest possible stage of the
proceedings and by encouraging orderly interlocutory referrals. Public
comments suggesting how these regulations might further reduce the
likelihood of post-decision disputes are particularly invited.
More generally, the regulations implementing section 802(f) are
intended to insure that the manifest, plenary authority of the Register
of Copyrights to control interpretations of the Copyright Act is fully
honored, while averting avoidable interruptions and delays in ongoing
proceedings. Comments are sought on any possible refinements to these
regulations that would better meet these goals.
Petitions to Participate.
Content. The Copyright Arbitration Royalty Panel regulations do not
specify the content of a notice of intent to participate. It has been
the practice of the Copyright Office to require, in the request for
notices of intent to participate, the claimant's full name, address,
telephone number, facsimile number (if any), and e-mail address (if
any); the phase or phases of the proceeding that were involved, if
applicable; \7\ and a statement of intent to fully participate. See,
Ascertainment of Controversy for the 2002 Cable Royalty Funds, 69 FR
44548, 44549 (July 26, 2004). The Board is codifying this de minimis
information requirement in its regulations.
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\7\ For an explanation of the two phases in cable and satellite
royalty pool distribution proceedings, see, e.g., Distribution of
1998 and 1999 Cable Royalty Funds, 69 FR 3606, 3607 (January 26,
2004).
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In addition, the Copyright Act now stipulates that a person must
have a ``significant interest'' in order to participate ``in the
proceeding.'' 17 U.S.C. 803(b)(2)(C). The Act does not define a
``significant interest''; it is a term of art that had been used in the
CARP program to screen petitions. See, 37 CFR 251.62. In past practice,
the Copyright Office has required a putative participant to show some
financial stake in the outcome of the proceeding in order to present a
``significant interest.'' The regulations adopted herewith, Sec.
351.1(b)(1), simply carry forward the statutory language, without
further elaboration. Comments are invited on whether the Board's
regulations should be amended to include more specific guidelines on
``significant interest.''
[[Page 30903]]
Late Petitions. Section 351.1(d) of the regulations indicates that
the Copyright Royalty Judges may accept late-filed petitions to
participate in a proceeding, ``for substantial good cause shown, and if
there is no prejudice to the participants that have already filed
petitions * * *.'' This language is essentially lifted from the Reform
Act, 17 U.S.C. 803(b)(1)(A)(ii). It is acknowledged that this statutory
language poses some ambiguities. Presumably, ``substantial good cause''
requires a stronger showing than mere ``good cause'' and, in context,
``prejudice'' probably relates to some impairment of a party's ability
to proceed, not merely the diminution of that party's potential
recovery.
The regulations, however, do not further flesh out these terms,
leaving resolution of the potential issues they raise to be resolved by
the Copyright Royalty Board in future proceedings. Comments are invited
as to whether some further guidance could or should be placed into the
regulatory language.
Filing Fees. Under section 803(b)(2)(A) of the Copyright Act, a
party seeking to participate in a royalty fund distribution proceeding
must pay a filing fee of $150. That filing fee requirement is waived,
however, if ``the contested amount of the claim is $10,000 or less * *
*.'' Id., section 803(b)(4)(A). While the intent of this provision is
quite clear, how it would be implemented is not. A claimant to a
royalty pool does not necessarily know the value of the claim when it
is submitted and cannot know the ``contested amount'' until competing
claims are weighed, after discovery and voluntary negotiations.
Accordingly, the regulations will ask the claimants to withhold their
fee payments if they believe the ``contested amount'' of their claim
will be $10,000 or less. Under the regulations, Sec. 351.1(b)(4), the
Copyright Royalty Board will require payment of the filing fee at such
time it appears that the ``contested amount of the claim'' will exceed
$10,000. Persons who believe that they are possibly going to be
entitled to a filing fee waiver should therefore delay submission of
the $150 filing fees. It is not practicable for the Board to refund an
erroneously paid fee.
Paper Proceedings. A problem of copyright statutory license program
administration has been to provide access to the adjudicative process
to persons with relatively small copyright royalty claims while, at the
same time, not allowing small claimants to unfairly exploit settlement
leverage by unreasonably prolonging proceedings. An important provision
of the Reform Act, addressing this problem, is section 803(b)(5),
directing the Copyright Royalty Judges to resolve some controversies
solely on a written record, without live testimony, in cases where
there ``is no genuine issue of material fact, there is no need for
evidentiary hearings, and all participants in the proceeding agree in
writing to the procedure * * *.'' 17 U.S.C. 803(b)(5)(A).
The statute also gives the Copyright Royalty Judges broad
discretion to impose paper proceedings ``under such other circumstances
as the Copyright Royalty Judges consider appropriate.'' 17 U.S.C.
803(b)(5)(B). This provision would apply in situations where not all of
the parties accede to paper proceedings, but where live hearings would
not aid the Judges in their deliberations and any legal requirements
could be met with paper proceedings. Cf., Mathews v. Eldridge, 424 U.S.
319 (1976); United States v. Florida E. Coast Ry. Co., 410 U.S. 224,
239 (1973); U.S. ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d
645, 652 (D.C. Cir. 1994). It is difficult to predict, in the abstract,
exactly what sort of controversies will be amenable to involuntary
paper proceedings. These regulations, at Sec. 351.3(c)(1), require a
party seeking an unconsented paper proceeding to show that such
proceedings would be legally permissible. Comments are sought as to
whether the regulations might go further in specifying the situations
where paper proceedings may be imposed upon an unwilling participant.
Discovery in Distribution Proceedings. Section 803(b)(6)(C)(viii)
of the Copyright Act requires the Board to apply ``[t]he rules and
practices'' used by the Copyright Office for CARP proceedings
``relating to discovery in proceedings * * * to determine the
distribution of royalty fees * * *.'' In the context of other Reform
Act procedural requirements, ``rules and practices'' appears to be a
reference to the limited discovery in distribution cases set forth at
37 CFR 251.45(c). Accordingly, in contrast to the depositions and
interrogatories permitted in rate disputes (Sec. 351.5(c)), discovery
in distribution cases (Sec. 351.6) will allow only for production of
documents underlying written direct and rebuttal statements. The 45-day
period for discovery set forth in 37 CFR 251.45(b) will also apply in
these cases.
Additional Discovery During Hearings. Section 351.12, infra, is
intended to implement section 803(b)(6)(C)(vi) of the Copyright Act,
based on the assumption that this provision is designed to allow
certain requests for supplementary reports or analyses during the
course of an evidentiary hearing. Comments are sought on the validity
of that assumption.
It should be noted that the regulations include, in Sec.
351.12(a), a heightened threshold for invocation of this type of
discovery, calling for a showing ``that, absent the discovery sought,
[the Board's] ability to achieve a just resolution of the proceeding
would be substantially impaired.'' This standard reflects the concern
that motions for additional discovery during the proceedings can be
costly and disruptive, if misused as a litigation tactic. Comments on
this concern are solicited.
Extension Policy; Date Computation. Board proceedings will be
conducted with limited staff resources, under schedules that are driven
by statutory deadlines. These proceedings will often involve multiple
parties that will be laboring under the assumption that other parties
will comply with procedural timeliness requirements. Accordingly, the
new Board regulations include a provision, Sec. 350.5(a), that
specifies the required content of an extension motion. It is not
intended to create an unnecessarily restrictive or harsh extension
policy. But extensions must be justified and should not be taken for
granted.
Section 350.5(b) explains how due dates should be computed. The
methodology is adopted from Rule 26, Federal Rules of Appellate
Procedure.
Claims to Funds in Royalty Pools. Eligibility to receive copyright
royalties paid by cable systems, satellite carriers, and manufacturers
and importers of digital audio recording devices and media (``DART'')
is contingent upon the submission of a timely filed claim. See, 17
U.S.C. 111, 119, and 1007. Cable and satellite claims must be filed
during the month of July; DART claims must be filed during the months
of January and February. Under the Reform Act, the next claims filings
will be made under the authority of the Copyright Royalty Judges ``[t]o
accept or reject royalty claims * * * on the basis of timeliness.'' 17
U.S.C. 801(b)(4).
Under Copyright Office regulations in effect prior to 2002, claims
to these royalty pools were timely filed if they were physically
delivered to the Copyright Office or mailed (as proven by a United
States Postal Service postmark) within the applicable month. The
regulations adopted for the Copyright Royalty Board contain this
standard, too. However, the Board is discontinuing an uncodified
practice of the Copyright Office. It has been the Copyright Office
policy to consider a
[[Page 30904]]
claim that was deposited with the United States Postal Service to be
timely filed, in July, if it was physically received in the agency's
mailroom on August 1.\8\ This practice has created additional,
unnecessary administrative burdens. Future claimants are advised that
the Board will not continue this ``August-1-receipt'' practice, but
will adhere to the strict terms of the regulations regarding filing by
United States mail.
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\8\ It was concluded that physical receipt of mail on August 1
provided an ``absolute assurance'' that the claim had been mailed in
the United States (and therefore filed) in July. See, MGM Studios,
Inc. v. Peters, 309 F. Supp. 2d 48 (D.D.C., 2004), and Universal
City Studios, LLLP v. Peters, 308 F. Supp. 2d 1, affirmed sub nom.
Universal City Studios, LLLP v. Peters, D.C. Cir. Nos. 04-5138 & 04-
5142 (April 8, 2005).
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The Board is also codifying herewith provisions allowing for the
filing of claims electronically. In response to disruptions and delays
in mail service, triggered by the anthrax episodes in late 2001 and the
subsequent relocation of mail deliveries to a remote site for
screening, the Copyright Office has allowed additional methods for
filing, accepting claims by e-mail submission or online submission and,
in the case of DART claims, filing by facsimile. The history of these
adjustments is detailed in the Notice of Proposed Rulemaking published
on October 18, 2004, 69 FR 61325, where the Copyright Office proposed
permanent changes to the CARP claims filing rules and invited public
comments. As proposed by the Copyright Office, the amended filing
regulations would provide, in addition to hand delivery and mail
filing, a permanent electronic filing system. This electronic filing
system would be similar to the system used since 2003.
The Copyright Office's proposed regulations also included a
requirement that each claim would utilize a personal identification
number (``PIN'') as a proxy for the original signature requirement for
a hand-delivered or mailed claim. 69 FR 61326-27. Comments on the
proposed filing rules, submitted jointly by representatives of all of
the Phase I copyright owner claimant groups that had been previously
allocated royalties in cable and satellite proceedings (``Claimant
Groups''),\9\ were largely directed against the adoption of this
proposed PIN requirement. The Claimant Groups averred that the use of a
PIN would not prevent fraud. Their comments noted that, in the single
criminal proceeding arising from the submission of fraudulent royalty
claims (U.S. v. Galaz, D.D.C. Crim. No. 02-230), the crime would not
necessarily have been prevented by the proposed PIN requirement. The
Claimant Groups also expressed concerns that the proposed PIN
requirement would add burdens and cause logistical problems, especially
for corporate claimants where ``the individuals filing for particular
copyright owners may change over time'' and their PINs, personal to
those individuals, frequently would not correspond to the actual
copyright owners. Claimant Groups joint comments, at 5. The Claimant
Groups proposed, as an alternative to the PIN proposal, use of an
affirmation or certification at the end of the online form that would
serve as a ratification of the claim. Id., at 7-9 (discussing the
Electronic Signatures in Global and National Commerce Act, 15 U.S.C.
7001, et seq.). The Claimant Groups pointed out that their alternative
proposal would be similar to the verifications used for trademark
registrations at the U.S. Patent and Trademark Office, while the
Copyright Office's PIN proposal was similar to a proposal that was
rejected by the Federal Communications Commission. Id., at 9-12 (citing
In the Matter of Electronic Filing of Documents in Rulemaking
Proceedings, Report and Order, 13 FCCRvd 11322 (1998)).
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\9\ The Claimant Groups' joint comments were signed by
representatives of the National Association of Broadcasters and the
Broadcaster Claimant Group; the Program Suppliers; the Joint Sports
Claimants; the Public Television Claimants; Broadcast Music Inc.
(BMI); the American Society of Composers, Authors and Publishers
(ASCAP); SESAC, Inc.; the Devotional Claimants; National Public
Radio; and the Canadian Claimants.
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In view of the arguments set forth in the Claimant Groups comments,
and in the absence of any support for the PIN proposal, that proposal
will not be adopted in the Board's regulations promulgated with this
notice. The Board will rely upon the verification that accompanies each
claim and the potential of criminal sanctions for false claims.
In making this decision, it should be emphasized that, while the
copyright owners represented stand to lose the most from any claims
fraud that may occur, the officials charged with administering the
statutory license royalty pools have a profound sense of responsibility
to do whatever reasonably might be done by the government to avoid
fraud in the distribution of the royalty pools. Comment is sought as to
any further steps that might be taken to discourage fraud or other
mischief in the claims submission process.\10\
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\10\ It should be noted that any suggestions made regarding the
filing of claims will not be implemented for the filing of cable and
satellite claims in July 2005. Such comments will be considered, and
if accepted, will be implemented at a later date.
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The Claimant Groups also asked (comments at 16-17) the Copyright
Office to regard claims postmarked in July in foreign countries as
timely, regardless of the date received. This proposition has
previously been rejected by the Copyright Office, in its rulemaking
proceedings for the adoption of CARP procedures, for cogent reasons.
See, 59 FR 63025, 63039 (December 7, 1994). If a claim is not received
in July, the Board will accept only a United States Postal Service
postmark with a July date for the same reasons as those expressed by
the Copyright Office in that decision. To avoid difficulties, claimants
ought to submit their claims as early in July as possible.
The forms to be used by the parties in making claims to the royalty
pools will reflect several other suggestions presented in the comments:
The forms will not have a ``filing status'' line. Cf., Claimant Groups
comments, at 15-16. Paragraph 3 of the forms for claims to share in
cable and satellite royalty pools will state that music performing
rights organizations do not have to list the names of their members and
affiliates and paragraph 5 will include a line for listing (a) the name
of a copyrighted musical work performed on the identified television
program, (b) the name of the writer, and (c) the name of the publisher.
Cf., separate ASCAP/BMI comments.
Finally, the Copyright Office's proposed rules included a couple of
technical items on which no comments were received: a requirement that,
with respect to electronic claims filings, the filled-in forms must be
received at the government's server by 5 p.m. on the last day of the
applicable statutory filing period and the elimination of filing by
facsimile for DART claims. The Board is adopting those two proposals.
List of Subjects
37 CFR Part 301
Copyright, Organization and functions (government agencies).
37 CFR Part 302
Copyright, Freedom of information, Reporting and recordkeeping
requirements.
37 CFR Part 350
Administrative practice and procedure, Copyright, Lawyers.
37 CFR Part 351
Administrative practice and procedure, Copyright.
[[Page 30905]]
37 CFR Part 352
Administrative practice and procedure, Copyright.
37 CFR Part 353
Administrative practice and procedure, Copyright.
37 CFR Part 354
Administrative practice and procedure, Copyright.
37 CFR Part 360
Cable television, Claims, Copyright, Recordings, Satellites,
Television.
Authority and Issuance
0
For the reasons set forth in the preamble, the Library of Congress
establishes a new Chapter III in Title 37 of the Code of Federal
Regulations to read as follows:
CHAPTER III--COPYRIGHT ROYALTY BOARD, LIBRARY OF CONGRESS
SUBCHAPTER A--GENERAL PROVISIONS
Part
301--Organization
302--Public access to records
SUBCHAPTER B--COPYRIGHT ROYALTY BOARD RULES AND PROCEDURES
350--General administrative provisions
351--Proceedings
352--Determinations
353--Rehearing
354--Submissions to the Register of Copyrights
360--Filing of claims to royalty fees collected under compulsory
license
SUBCHAPTER A--GENERAL PROVISIONS
PART 301--ORGANIZATION
Sec.
301.1 Copyright Royalty Board.
301.2 Official addresses.
301.3 Office location.
Authority: 17 U.S.C. 801.
Sec. 301.1 Copyright Royalty Board.
The Copyright Royalty Board is the institutional entity in the
Library of Congress that will house the Copyright Royalty Judges,
appointed pursuant to 17 U.S.C. 801(a), and their staff.
Sec. 301.2 Official addresses.
All claims, pleadings, and general correspondence intended for the
Copyright Royalty Board must be addressed as follows:
(a) If sent by mail (including overnight delivery using United
States Postal Service Express Mail), the envelope should be addressed
to: Copyright Royalty Board, P.O. Box 70977, Southwest Station,
Washington, DC 20024-0977.
(b) If hand delivered by a private party, the envelope must be
brought to Room LM-401 of the James Madison Memorial Building, Monday
through Friday, between 8:30 a.m. and 5 p.m., and be addressed as
follows: Copyright Royalty Board, Library of Congress, James Madison
Memorial Building, LM-401, 101 Independence Avenue, SE., Washington, DC
20559-6000.
(c) If hand delivered by a commercial courier (excluding Federal
Express, United Parcel Service and similar courier services), the
envelope must be delivered to the Congressional Courier Acceptance Site
(CCAS) located at Second and D Street, NE., Washington, DC, Monday
through Friday, between 8:30 a.m. and 4 p.m., and be addressed as
follows: Copyright Royalty Board, Library of Congress, James Madison
Memorial Building, LM-403, 101 Independence Avenue, SE., Washington,
DC.
(d) Correspondence and filings for the Copyright Royalty Board may
not be delivered by means of overnight delivery services such as
Federal Express, United Parcel Service, etc., due to delays in
processing receipt of such deliveries.
Sec. 301.3 Office location.
The offices of the Copyright Royalty Board are located in the
Library of Congress, James Madison Memorial Building, Room LM-403, 101
Independence Avenue, S.E., Washington, D.C. 20559-6000.
PART 302--PUBLIC ACCESS TO RECORDS
Sec.
302.1 Public records.
302.2 Public access.
Authority: 5 U.S.C. 552.
Sec. 302.1 Public records.
(a) All final determinations of the Copyright Royalty Board, and
the relevant facts and reasons for those determinations, will be
published in the Federal Register.
(b) Records of proceedings before the Board will be available for
public inspection at the Copyright Royalty Board offices, to the extent
that disclosure is required under the Freedom of Information Act, 5
U.S.C. 552.
Sec. 302.2 Public access.
(a) Location. The records of the Copyright Royalty Board will be
located at the address provided in Sec. 301.3 of this chapter.
(b) Requests. Requests for information or access to records must be
directed to the Copyright Royalty Board. No requests for information or
access to records shall be directed to or accepted by a Copyright
Royalty Judge.
(c) Fees. For services rendered in connection with document
location and reproduction, the following fees shall apply:
(1) For photocopies made by Copyright Royalty Board staff, the
charge will be 40 cents per page copied.
(2) For the time Copyright Royalty Board staff spends in fulfilling
a search request or providing other services, the charge will be $65
per hour or fraction thereof.
SUBCHAPTER B--COPYRIGHT ROYALTY BOARD RULES AND PROCEDURES
PART 350--GENERAL ADMINISTRATIVE PROVISIONS
Sec.
350.1 Scope.
350.2 Representation.
350.3 Caption required.
350.4 Filing and service.
350.5 Time.
350.6 Construction and waiver.
Authority: 17 U.S.C. 803.
Sec. 350.1 Scope.
This subchapter governs procedures generally applicable to
proceedings before the Copyright Royalty Board in making determinations
and adjustments pursuant to the Copyright Act, 17 U.S.C. 801(b).
Sec. 350.2 Representation.
Parties in proceedings before the Board may represent themselves or
be represented by an attorney. The appearance of an attorney on behalf
of any party constitutes a representation that the attorney is a member
of the bar, in one or more states, in good standing.
Sec. 350.3 Caption required.
All pleadings and documents filed in a proceeding before the
Copyright Royalty Board must be identified in a caption that identifies
the proceeding by caption and docket number.
Sec. 350.4 Filing and service.
(a) Filing of pleadings. The submitting party shall deliver an
original and five copies of all filings to the Copyright Royalty Board
in accordance with the provisions set forth in Sec. 301.2 of this
chapter. In no case shall a party tender any document by facsimile
transmission.
(b) Exhibits. All exhibits must be included with the pleadings they
support. In the case of exhibits whose bulk or whose cost of
reproduction would unnecessarily encumber the record or burden the
party, the Board may reduce the number of required copies.
[[Page 30906]]
(c) English language translations. Each submission that is in a
language other than English shall be accompanied by an English-language
translation, duly verified under oath to be a true translation. Any
other party to the proceeding may, in response, submit its own English-
language translation, similarly verified.
(d) Affidavits. The testimony of each witness shall be accompanied
by an affidavit or a declaration made pursuant to 28 U.S.C. 1746
supporting the testimony.
(e) Subscription and verification. (1) Parties represented by
counsel. The original of all documents filed by any party represented
by counsel shall be signed by at least one attorney of record and shall
list the attorney's address and telephone number. Submissions signed by
an attorney for a party need not be verified or accompanied by an
affidavit. The signature of an attorney constitutes certification that,
to the best of his or her knowledge and belief, there is good ground to
support the document, and that it has not been interposed for purposes
of delay.
(2) Parties representing themselves. The original of all documents
filed by a party not represented by counsel shall be signed by that
party and list that party's address and telephone number. The signature
will constitute the party's certification that, to the best of his or
her knowledge and belief, there is good ground to support the document,
and that it has not been interposed for purposes of delay.
(3) Verification. The original of a document that is not signed, or
is signed with the intent to defeat the purpose of this section, may be
stricken as sham and false, and the matter shall proceed as though the
document had not been filed.
(f) Oppositions and replies. Oppositions to motions shall be filed
within seven business days of the filing of the motion, and replies to
oppositions shall be filed within five business days of the filing of
the opposition.
(g) Service list. The Copyright Royalty Board will compile and
distribute, to those parties who have filed a petition to participate
that has been accepted by the Board, the official service list of the
proceeding. In all filings, a copy shall be served upon counsel of all
other parties identified in the service list, or, if the party is
unrepresented by counsel, upon the party itself. Proof of service shall
accompany the filing. Parties shall notify the Board and all parties of
any change in the name or address to which service shall be made.
(h) Service method. During the course of a proceeding, each party
must serve all motions, objections, oppositions, and replies on the
other parties or their counsel by means no slower than overnight
express mail on the same day the pleading is filed. If a party is
willing to accept service of a document electronically (i.e., by e-
mail), followed by a hard copy, first-class mail of the hard copy may
be used in lieu of express mail or other expedited delivery.
Sec. 350.5 Time.
(a) Computation. To compute the due date for filing and serving any
document or performing any other act directed by an order of the
Copyright Royalty Board or the Board's rules:
(1) Exclude the day of the act, event, or default that begins the
period.
(2) Exclude intermediate Saturdays, Sundays, and legal holidays
when the period is less than 11 days, unless stated in calendar days.
(3) Include the last day of the period unless it is a Saturday,
Sunday, legal holiday, or a day on which the weather or other
conditions render the Board's office inaccessible.
(4) As used in this rule, ``legal holiday'' means New Year's Day,
Martin Luther King, Jr.'s Birthday, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving
Day, Christmas Day, and any other day declared a holiday by the
President or the Congress.
(b) Extensions. A party seeking an extension may do so by written
motion. An extension motion must state:
(1) The date on which the action or submission is due;
(2) The length of the extension sought;
(3) The date on which the action or submission would be due if the
extension were allowed;
(4) The reason or reasons why the delay is unavoidable; and
(5) The justification for the amount of additional time being
sought.
Sec. 350.6 Construction and waiver.
The regulations of the Copyright Royalty Board are intended to
provide efficient and just administrative proceedings and will be
construed to advance these purposes. For purposes of an individual
proceeding, the provisions of this subchapter may be suspended or
waived, in whole or in part, upon a showing of good cause, to the
extent allowable by law.
PART 351--PROCEEDINGS
Sec.
351.1 Initiation of proceedings.
351.2 Voluntary negotiation period; settlement.
351.3 Controversy and further proceedings.
351.4 Written direct statements.
351.5 Discovery in royalty rate proceedings.
351.6 Discovery in distribution proceedings.
351.7 Settlement conference.
351.8 Pre-hearing conference.
351.9 Conduct of hearings.
351.10 Evidence.
351.11 Rebuttal proceedings.
351.12 Requests for additional discovery during the hearing in
royalty rate proceedings.
351.13 Closing the record.
351.14 Transcript and record.
351.15 Proposed findings of fact and conclusion of law.
Authority: 17 U.S.C. 803, 805.
Sec. 351.1 Initiation of proceedings.
(a) Notice of commencement; solicitation of petitions to
participate. All proceedings before the Copyright Royalty Board to make
determinations and adjustments of reasonable terms and rates of royalty
payments, and to authorize the distribution of royalty fees, shall be
initiated by publication in the Federal Register of a notice of the
initiation of proceedings calling for the filing of petitions to
participate in the proceeding.
(b) Petitions to participate. (1) Royalty rate proceedings. (i)
Single petition. Each petition to participate filed in a royalty rate
proceeding must include:
(A) The petitioner's full name, address, telephone number,
facsimile number (if any), and e-mail address (if any);
(B) A description of the petitioner's significant interest in the
subject matter of the proceeding; and
(C) A statement of the petitioner's intention to fully participate
in the royalty rate proceeding;
(ii) Joint petition. Petitioners with similar interests may, in
lieu of filing individual petitions, file a single petition. Each joint
petition must include:
(A) The full name, address, telephone number, facsimile number (if
any), and e-mail address (if any) of the person filing the petition;
(B) A list identifying all participants to the joint petition;
(C) A description of the participants' significant interest in the
subject matter of the proceeding;
(D) A statement of the participants' intention to fully participate
in the royalty rate proceeding; and
(E) If the joint petition is filed by counsel or a representative
of one or more of the participants that are named in the joint
petition, a statement from such counsel or representative certifying
that, as of the date of submission of the joint petition, such counsel
or representative has the authority and
[[Page 30907]]
consent of the participants to represent them in the royalty rate
proceeding.
(2) Distribution proceedings. (i) Single petition. Each petition to
participate filed in a royalty distribution proceeding must include:
(A) The petitioner's full name, address, telephone number,
facsimile number (if any), and e-mail address (if any);
(B) In a cable or satellite royalty distribution proceeding,
identification of whether the petition covers a Phase I proceeding (the
initial part of a distribution proceeding where royalties are divided
among the categories or groups of copyright owners), a Phase II
proceeding (where the money allotted to each category is subdivided
among the various copyright owners within that category), or both;
(C) A description of the petitioner's significant interest in the
subject matter of the proceeding; and
(D) A statement of the petitioner's intention to fully participate
in the royalty distribution proceeding;
(ii) Joint petition. Petitioners with similar interests may, in
lieu of filing individual petitions, file a single petition. Each joint
petition must include:
(A) The full name, address, telephone number, facsimile number (if
any), and e-mail address (if any) of the person filing the petition;
(B) A list identifying all participants to the joint petition;
(C) In a cable or satellite royalty distribution proceeding,
identification of whether the petition covers a Phase I proceeding (the
initial part of a distribution proceeding where royalties are divided
among the categories or groups of copyright owners), a Phase II
proceeding (where the money allotted to each category is subdivided
among the various copyright owners within that category), or both;
(D) A description of the participants' significant interest in the
subject matter of the proceeding;
(E) A statement of the participants' intention to fully participate
in the royalty distribution proceeding; and
(F) If the joint petition is filed by counsel or a representative
of one or more of the participants that are named in the joint
petition, a statement from such counsel or representative certifying
that, as of the date of submission of the joint petition, such counsel
or representative has the authority and consent of the participants to
represent them in the royalty distribution proceeding.
(3) Filing deadline. A petition to participate shall be filed by no
later than 30 days after the publication of the notice of commencement
of a proceeding, subject to the qualified exception set forth in
paragraph (d) of this section.
(4) Filing fee. A petition to participate must be accompanied with
a filing fee of $150 or the petition will be rejected. Payment shall be
made to the Copyright Royalty Board. If a check is subsequently
dishonored, the petition will be rejected. If the petitioner believes
that the contested amount of that petitioner's claim will be less than
$10,000, petitioner shall so state in the petition to participate and
should not include payment of the $150 filing fee. If it becomes
apparent during the course of the proceedings that the contested amount
of the claim is more than $10,000, the Board will require payment of
the filing fee at such time.
(c) Acceptance and rejection of petitions to participate. A
petition to participate will be deemed to have been allowed by the
Copyright Royalty Board unless the Board has determined that the
petitioner lacks a significant interest in the proceeding or that the
petition is otherwise invalid.
(d) Late petitions to participate. The Copyright Royalty Board may,
for substantial good cause shown, and if there is no prejudice to the
participants that have already filed petitions, accept late petitions
to participate at any time up to the date that is 90 days before the
date on which participants in the proceeding are to file their written
direct statements. However, petitioners whose petitions are filed more
than 30 days after publication of notice of commencement of a
proceeding are not eligible to object to a settlement reached during
the voluntary negotiation period.
Sec. 351.2 Voluntary negotiation period; settlement.
(a) Commencement; duration. Within thirty-five business days from
the date a proceeding is initiated by notice in the Federal Register
pursuant to Sec. 351.1(a), the Copyright Royalty Board will announce
the beginning of a voluntary negotiation period and will make a list of
the participants available to the participants in the particular
proceeding. The voluntary negotiation period shall last three months,
after which the parties shall notify the Board in writing as to whether
a settlement has been reached.
(b) Settlement. (1) Distribution proceedings. To the extent that a
settlement or partial settlement has been reached in a distribution
proceeding, that agreement will provide the basis for a full or partial
distribution.
(2) Royalty rate proceedings. If, in a proceeding to determine
statutory terms and rates, the participating parties report that a
settlement has been reached by some or all of the parties, the
Copyright Royalty Board will publish the settlement in the Federal
Register for notice and comment from those bound by the terms, rates,
or other determination set by the agreement. The Board may decline to
adopt the agreement as a basis for statutory terms and rates for
participants that are not parties to the agreement if the Board
concludes that the agreement does not provide a reasonable basis for
setting statutory terms or rates.
Sec. 351.3 Controversy and further proceedings.
(a) Declaration of controversy. If a settlement has not been
reached within the voluntary negotiation period, the Copyright Royalty
Board will issue an order declaring that further proceedings are
necessary. The procedures set forth at Sec. Sec. 351.4, et seq., for
formal hearings will apply, unless the abbreviated procedures set forth
in paragraphs (b) and (c) of this section are invoked by the Copyright
Royalty Board.
(b) Small claims in distribution proceedings. (1) General. If, in a
distribution proceeding, the contested amount of a claim is $10,000 or
less, the Copyright Royalty Board shall decide the controversy on the
basis of the filing of the written direct statement by each participant
(or participant group filing a joint petition), the response by any
opposing participant, and one optional reply by a participant who has
filed a written direct statement.
(2) Bad faith inflation of claim. If the Copyright Royalty Board
determines that a participant asserts in bad faith an amount in
controversy in excess of $10,000 for the purpose of avoiding a
determination under the procedure set forth in paragraph (b)(1) of this
section, the Copyright Royalty Board shall impose a fine on that
participant in an amount not to exceed the difference between the
actual amount distributed and the amount asserted by the participant.
(c) Paper proceedings. (1) Where used. The procedure under this
paragraph (c) will be applied in cases in which there is no genuine
issue of material fact, there is no need for evidentiary hearings, and
all participants in the proceeding agree in writing to the procedure.
In the absence of an agreement in writing among all participants, this
procedure may be applied by the Board, in its discretion, either on the
motion of a party or by the Copyright Royalty Board sua sponte. A party
requesting use of paper proceedings, in the absence of
[[Page 30908]]
agreement among the other participants, should include in the motion a
showing that the use of paper proceedings in the particular case would
meet any due process or other legal requirements.
(2) Course of procedure. Paper proceedings will be decided on the
basis of the filing of the written direct statement by the participant
(or participant group filing a joint petition), the response by any
opposing participant, and one optional reply by a participant who has
filed a written direct statement. Before a decision becomes final in a
case utilizing paper proceedings, the Copyright Royalty Board will
offer the participants the opportunity to comment on the decision.
Sec. 351.4 Written direct statements.
(a) Required filing; deadline. All parties who have filed a
petition to participate in the hearing must file a written direct
statement. The deadline for the filing of the written direct statement
will be specified by the Copyright Royalty Board, not earlier than 4
months, nor later than 5 months, after the end of the voluntary
negotiation period set forth in Sec. 351.2.
(b) Content required. (1) Testimony. The written direct statement
shall include all testimony, including each witness's background and
qualifications, along with all the exhibits to be presented in the
direct statement.
(2) Designated testimony. Each participating party may designate a
portion of past records, including records of the Copyright Royalty
Tribunal or Copyright Arbitration Royalty Panels, that it wants
included in its direct statement. If a party intends to rely on any
part of the testimony of a witness in a prior proceeding, the complete
testimony of that witness (i.e., direct, cross and redirect
examination) must be designated. The party submitting such designated
testimony shall include a copy of that testimony with the written
direct statement.
(3) Claim. In the case of a royalty distribution proceeding, each
party must state in the written direct statement its percentage or
dollar claim to the fund. In the case of a rate (or rates) proceeding,
each party must state its requested rate. No party will be precluded
from revising its claim or its requested rate at any time during the
proceeding up to, and including, the filing of the proposed findings of
fact and conclusions of law.
(4) Material questions. Under a separate heading, the written
direct statement shall set forth any ``material question of substantive
law'' that is expected to arise in the course of the proceeding and
might warrant certification to the Register of Copyrights under 17
U.S.C. 802(f). Cf., 37 CFR Part 354.
(c) Amended written direct statements. A participant in a
proceeding may amend a written direct statement based on new
information received during the discovery process, within 15 days after
the end of the discovery period. An amended written direct statement
must explain how it differs from the written direct statement it will
amend and must demonstrate that the amendment is based on new
information received during the discovery process. The participant
amending its written direct statement may file either the amended
portions of the written direct statement or submit complete new copies
at its option.
Sec. 351.5 Discovery in royalty rate proceedings.
(a) Schedule. Following the submission to the Copyright Royalty
Board of written direct statements by the participants in a royalty
rate proceeding, and after conferring with the participants, the
Copyright Royalty Board will issue a discovery schedule. Discovery
shall be permitted for a period of 60 days, except for discovery
ordered by the Copyright Royalty Board in connection with the
resolution of motions, orders, and disputes pending at the end of such
period. The discovery schedule will include a date for the post-
discovery settlement conference addressed in Sec. 351.7.
(b) Document production. A participant in a royalty rate proceeding
may request of an opposing participant nonprivileged documents that are
directly related to the written direct statement or written rebuttal
statement of that participant. Any objection to such a request shall be
resolved by a motion or request to compel production. The motion must
show how the disputed document or documents would actually be relevant
to the moving party's case and that the information sought is not
readily available to the moving participant in a form or format that
would be substantially less burdensome to produce. The motion must also
include a statement that the parties had conferred and were unable to
resolve the matter.
(c) Depositions and interrogatories. In a proceeding to determine
royalty rates, the participants entitled to receive royalties shall
collectively be permitted to take no more than 10 depositions and
secure responses to no more than 25 interrogatories. Similarly, the
participants obligated to pay royalties shall collectively be permitted
to take no more than 10 depositions and secure responses to no more
than 25 interrogatories.
Sec. 351.6 Discovery in distribution proceedings.
In distribution proceedings, the Board shall designate a 45-day
period following the filing of written direct and rebuttal statements
within which parties may request of an opposing party nonprivileged
underlying documents related to the written exhibits and testimony.
Sec. 351.7 Settlement conference.
A post-discovery settlement conference will be held among the
participants, within 21-days after the close of discovery, outside of
the presence of the Copyright Royalty Board. Immediately after this
conference the participants shall file with the Copyright Royalty Board
a Joint Settlement Conference Report indicating the extent to which the
participants have reached a settlement.
Sec. 351.8 Pre-hearing conference.
In the absence of a complete settlement in a proceeding not subject
to the abbreviated procedures set forth in Sec. Sec. 351.3(b) and (c),
a hearing will be scheduled expeditiously so as to allow the Board to
conduct hearings and issue its final determination in the proceeding
within the time allowed by the Copyright Act. Prior to the hearing, the
Board may conduct a prehearing conference to assist in setting the
order of presentation of evidence and the appearance of witnesses at
the hearing.
Sec. 351.9 Conduct of hearings.
(a) By panels. Hearings will be conducted by all Copyright Royalty
Judges sitting as a panel.
(b) Role of Chief Judge. The Chief Copyright Royalty Judge may
preside over such collateral and administrative proceedings, and over
proceedings under section 803(b)(1) through (5) of the Copyright Act,
as the Chief Judge considers appropriate. Subject to the vote of the
Copyright Royalty Judges, the Chief Judge shall have the responsibility
for:
(1) Setting the order of presentation of evidence and appearance of
witnesses;
(2) Administering oaths and affirmations to all witnesses;
(3) Announcing the Board's ruling on objections and motions and all
rulings with respect to introducing or excluding documentary or other
evidence. In all cases, whether there are an even number of Judges
sitting at the hearing, with the exception of a hearing pursuant to 17
[[Page 30909]]
U.S.C. 803(a)(2), it takes a majority vote to grant a motion or sustain
an objection. A tie vote will result in the denial of a motion or the
overruling of the objection;
(4) Regulating the course of the proceedings and the decorum of the
parties and their counsel, and insuring that the proceedings are fair
and impartial; and
(5) Announcing the schedule of subsequent proceedings.
(c) Opening statements. In each distribution or rate proceeding,
each party may present its opening statement summarizing its written
direct statement.
Sec. 351.10 Evidence.
(a) Admissibility. All evidence that is relevant and not unduly
repetitious or privileged, shall be admissible. Written testimony and
exhibits will be received into the record, except where the Board
sustains an objection. No evidence, including exhibits, may be
submitted without a sponsoring witness, except matters of which the
Board may take official notice.
(b) Examination of witnesses. All witnesses shall be required to
take an oath or affirmation before testifying. Parties are entitled to
conduct direct examination (consisting of the testimony of the witness
in the written direct statement and an oral summary of that testimony);
cross-examination (limited to matters raised on direct examination);
and redirect examination (limited to matters raised on cross-
examination). The Board may limit the number of witnesses or limit
questioning to avoid cumulative testimony.
(c) Documentary evidence. (1) Submission as exhibits. Evidence that
is submitted in the form of documents or detailed data and information
shall be presented as exhibits.
(2) Separation of irrelevant portions. Relevant and material matter
embraced in a document containing other matter not material or relevant
or not intended as evidence must be plainly designated as the matter
offered in evidence, and the immaterial or irrelevant parts shall be
marked clearly so as to show they are not intended as evidence.
(3) Bulky exhibits. In cases where a document in which material and
relevant matter occurs is of such bulk that it would unnecessarily
encumber the record, it may be marked for identification and the
relevant and material parts, once properly authenticated, may be read
into the record. In such instances, a true copy of the material and
relevant matter may be presented in extract form, and submitted as
evidence.
(d) Copies. Anyone presenting documents as evidence must present
copies to all other participants in the proceedings, or their
attorneys, and afford them an opportunity to examine the documents in
their entirety and offer into evidence any other portion that may be
considered material and relevant. However, if a publicly available
document issued by a governmental entity (such as an official report,
decision, opinion, or published scientific or economic data) is offered
in evidence, it may be offered instead by identifying the document and
signaling the relevant parts.
(e) Introduction of studies and analyses. If studies or analyses
are offered in evidence, they shall state clearly the study plan, all
relevant assumptions, the techniques of data collection, and the
techniques of estimation and testing. The facts and judgments upon
which conclusions are based shall be stated clearly, together with any
alternative courses of action considered. If requested, tabulations of
input data shall be made available to the Board.
(1) Statistical studies. Statistical studies offered in evidence
shall be accompanied by a summary of their assumptions, their study
plans, and their procedures. Supplementary details shall be included in
appendices. For each of the following types of statistical studies the
following should be furnished:
(i) Sample surveys.
(A) A clear description of the survey design, the definition of the
universe under consideration, the sampling frame and units, the
validity and confidence limits on major estimates; and
(B) An explanation of the method of selecting the sample and of the
characteristics which were measured and counted.
(ii) Econometric investigations.
(A) A complete description of the econometric model, the reasons
for each assumption, and the reasons for the statistical specification;
(B) A clear statement of how any changes in the assumptions might
affect the final result; and
(C) Any available alternative studies that employ alternative
models and variables, if requested.
(iii) Experimental analysis.
(A) A complete description of the design, the controlled
conditions, and the implementation of controls; and
(B) A complete description of the methods of observation and
adjustment of observation.
(iv) Studies involving statistical methodology.
(A) The formula used for statistical estimates;
(B) The standard error for each component;
(C) The test statistics, the description of how the tests were
conducted, related computations, computer programs, and all final
results; and
(D) Summarized descriptions of input data and, if requested, the
input data themselves.
(f) Objections; offers of proof. Parties are entitled to raise
objections to evidence on any proper ground during the course of the
hearing, including an objection that an opposing party has not
furnished unprivileged underlying documents. If the Board rejects or
excludes testimony, the participant proffering the testimony may submit
an offer of proof for the record. In the case of documentary or written
evidence, a copy of such evidence shall be marked for identification
and shall constitute the offer of proof.
(g) New documents for use in cross-examination. Documents that have
not been identified and exchanged in advance may be shown to a witness
on cross-examination. However, copies of such documents must be
distributed to the Board and to the other participants before being
shown to the witness at the time of cross-examination, unless the Board
directs otherwise. If the document is not, or will not be, supported by
a witness for the cross-examining party, that document can be used
solely to impeach the witness's direct testimony.
Sec. 351.11 Rebuttal proceedings.
Written rebuttal statements shall be filed at a time designated by
the Copyright Royalty Board upon conclusion of the hearing of the
direct case, in the same form and manner as the written direct
statement, except that the claim or the requested rate shall not have
to be included if it has not changed from the written direct statement.
Further proceedings at the rebuttal stage shall follow the schedule
ordered by the Board.
Sec. 351.12 Requests for additional discovery during the hearing in
rate proceedings.
(a) A participant may, in the course of a royalty rate hearing,
request of an opposing participant or witness other relevant
information. The request may be made by means of written motion or oral
motion on the record. The Copyright Royalty Board will allow such
request only if they determine that, absent the discovery sought, their
ability to achieve a just resolution of the
[[Page 30910]]
proceeding would be substantially impaired.
(b) In determining whether discovery will be granted under this
section, the Copyright Royalty Board will consider--
(1) Whether the burden or expense of producing the requested
information or materials outweighs the likely benefit, taking into
account the needs and resources of the participants, the importance of
the issues at stake, and the probative value of the requested
information or materials in resolving such issues;
(2) Whether the requested information or materials would be
unreasonably cumulative or duplicative, or are obtainable from another
source that is more convenient, less burdensome, or less expensive; and
(3) Whether the participant seeking the discovery had an ample
opportunity by previous discovery in the proceeding or by other means
to obtain the information sought.
(c) This section shall not apply to any proceeding scheduled to
commence after December 31, 2010.
Sec. 351.13 Closing the record.
To close the record of a hearing, the Chief Judge shall make an
announcement that the taking of testimony has concluded. In its
discretion the Copyright Royalty Board may close the record as of a
future specified date, and all time for exhibits yet to be prepared to
be admitted, provided that the parties to the proceeding stipulate on
the record that they waive the opportunity to cross-examine or present
evidence with respect to such exhibits. The record in any hearing that
has recessed may not be closed by the Chief Judge before the day on
which the hearing is to resume, except upon ten days' notice to all
parties.
Sec. 351.14 Transcript and record.
(a) An official reporter for the recording and transcribing of
hearings shall be designated by the Copyright Royalty Board. Anyone
wishing to inspect the transcript of a hearing may do so at the offices
of the Board.
(b) The transcript of testimony and all exhibits, documents,
filings and other items submitted in the course of a proceeding shall
constitute the official written record. The written record, along with
the Board's final determination, shall be available at the Board's
offices for public inspection and copying.
Sec. 351.15 Proposed findings of fact and conclusions of law.
(a) Any party to the proceeding may file proposed findings of fact
and conclusions, briefs or memoranda of law, or may be directed by the
Board to do so. Such filings, and any replies to them, shall take place
at such time after the record has been closed as the Board directs.
(b) Failure to file when directed to do so shall be considered a
waiver of the right to participate further in the proceeding unless
good cause for the failure is shown.
(c) Proposed findings of fact shall be numbered by paragraph and
include all basic evidentiary facts developed on the record used to
support proposed conclusions, and shall contain appropriate citations
to the record for each evidentiary fact. Proposed conclusions shall be
stated and numbered by paragraph separately.
PART 352--DETERMINATIONS
Sec.
352.1 How made.
352.2 Timing.
352.3 Final determinations.
Authority: 17 U.S.C. 803.
Sec. 352.1 How made.
Except for decisions authorized by law to be made by a single
Copyright Royalty Judge, determinations of the Board in a proceeding
will be made by a majority of the Copyright Royalty Judges. The opinion
or opinions of the majority and any dissenting opinion will be included
in the determination. Each determination by the Board will be
transmitted to the Register of Copyrights to enable review for
consistency with the Copyright Act on the day it is issued.
Sec. 352.2 Timing.
The Copyright Royalty Board will issue its determination within 11
months of the date of the post-discovery settlement conference or 15
days before the expiration of the existing rates or terms in a
proceeding to determine successors to rates or terms that will expire
on a specific date, whichever date first occurs.
Sec. 352.3 Final determinations.
The determination by the Board in a proceeding will become final 15
days after it is issued, unless it is withdrawn by the Board on its own
motion, suspended pending rehearing proceedings, or the Register of
Copyrights advises the Board that its determination is inconsistent
with the Copyright Act. The final determination will be published in
the Federal Register.
PART 353--REHEARING
Sec.
353.1 When granted.
353.2 Form and content of rehearing motions.
353.3 Procedure on rehearing.
353.4 Filing deadline.
353.5 Participation not required.
Authority: 17 U.S.C. 803.
Sec. 353.1 When granted.
A motion for rehearing may be filed by any participant in the
relevant proceeding. The Copyright Royalty Board may grant rehearing
upon a showing that any aspect of the Board's determination may be
erroneous. Rehearing will be granted only in exceptional cases,
however, and should not be sought merely to reargue a rate or
distribution level determination that falls within the zone of
reasonableness established by the record.
Sec. 353.2 Form and content of rehearing motions.
A motion for rehearing shall not exceed 10 pages in length and must
set forth, in the beginning of its text, a brief summary statement of
the aspects of the determination believed by the moving participant to
be without evidentiary support in the record or contrary to legal
requirements.
Sec. 353.3 Procedure on rehearing.
Upon receipt of a motion for rehearing, the Copyright Royalty Board
will issue an order either denying the motion or ordering further
proceedings. No participant shall file a response to a rehearing
motion, unless such response is allowed by order of the Copyright
Royalty Board.
Sec. 353.4 Filing deadline.
A motion for hearing must be filed within 10 days after the date on
which the Copyright Royalty Board delivers to the participants an
initial determination.
Sec. 353.5 Participation not required.
In any case in which a response to a rehearing motion is allowed,
or rehearing is granted, an opposing party shall not be required to
participate in the rehearing. The Copyright Royalty Board will not draw
any negative inference from a lack of participation in a rehearing.
However, participants should be aware that nonparticipation in
rehearing proceedings may limit the scope of their participation in
judicial review proceedings as set forth in 17 U.S.C. 803(d)(1).
PART 354--SUBMISSIONS TO THE REGISTER OF COPYRIGHTS
Sec.
354.1 Material questions of copyright law.
354.2 Novel questions.
[[Page 30911]]
354.3 Register of Copyrights' authority to redesignate referrals.
354.4 Consultation regarding acts required by the Register of
Copyrights.
354.5 Jurisdiction of the Copyright Royalty Board unaffected.
Authority: 17 U.S.C. 802.
Sec. 354.1 Material questions of copyright law.
(a) Discretionary referrals. The Copyright Royalty Board may seek
guidance from the Register of Copyrights with respect to a material
question of substantive law, concerning an interpretation or
construction of those provisions of the Copyright Act, that arises in
the course of their proceedings.
(b) How presented. One or more of the Copyright Royalty Judges may
refer what he or she believes to be a material question of substantive
law to the Register of Copyrights at any time during a proceeding.
(c) Motion; content. Any participant may submit a motion to the
Copyright Royalty Board (but not to the Register of Copyrights)
requesting their referral to the Register of Copyrights a question that
the participant believes would be suitable for referral under paragraph
(a) of this section. The motion should be captioned ``Motion of
[Participant(s)] Requesting Referral of Material Question of
Substantive Law.'' The motion should set forth, at the outset, the
precise legal question for which the moving party is seeking
interlocutory referral to the Register of Copyrights. The motion should
then proceed to explain, with brevity, why the issue meets the criteria
for potential referral under paragraph (a) of this section and why the
interests of fair and efficient adjudication would be best served by
obtaining interlocutory guidance from the Register of Copyrights. The
motion should not include argument on the merits of the issue, but may
include a suggested schedule of briefing that would make reasonable
provision for comments and legal arguments, in such a way as to avoid
delay and duplication.
(d) Time of motion. A motion for referral of a material question of
substantive law to the Register of Copyrights should be filed as soon
as possible in the relevant proceeding. However, such a motion may be
submitted to the Copyright Royalty Board at any time before a final
determination is issued.
(e) Action on motion. (1) Referral granted. Upon consideration of a
Motion Requesting Referral of Material Question of Substantive Law, if
one or more of the Copyright Royalty Judges agrees with the request,
the Chief Judge shall issue an appropriate referral. The referral will
identify the Judge or Judges voting in favor of the referral, the issue
to be referred, and the schedule for the filing of briefs by the
parties of the issues. After the briefs and other relevant materials
are received, they will be transmitted to the Register of Copyrights. A
Copyright Royalty Judge who voted against the referral who wishes to do
so may include a statement explaining that vote in the referral
package.
(2) Referral denied. If none of the Copyright Royalty Judges agrees
with the request, the Board will issue an order denying the request
which will provide the basis for the decision. A copy of any order
denying a Motion Requesting Referral of Material Question of
Substantive Law will be transmitted to the Register of Copyrights.
(f) No effect on proceedings. The issuance of a request to the
Register of Copyrights for an interpretive ruling under this part does
not delay or otherwise affect the schedule of the participants'
obligations in the relevant ongoing proceeding, unless that schedule or
those obligations are expressly changed by order of the Board.
(g) Binding effect; time limit. The Copyright Royalty Board will
not issue a final determination in a proceeding where the referral of a
question to the Register of Copyrights under this part is pending,
unless the Register has not delivered the decision to the Copyright
Royalty Board within 14 days after the Register receives all of the
briefs of the participants. If the decision of the Register of
Copyrights is timely delivered to the Copyright Royalty Board, the
decision will be included in the record of the proceeding. The legal
interpretation embodied in the timely delivered response of the
Register of Copyrights in resolving material questions of substantive
law is binding upon the Copyright Royalty Board and will be applied by
them in their final determination in the relevant proceeding.
Sec. 354.2 Novel questions.
(a) Mandatory referrals. If the material question of substantive
law described in Sec. 354.1(a) is a novel question of law, referral to
the Register of Copyrights by the Copyright Royalty Board is mandatory.
A ``novel question of law'' is a question of law that has not been
determined in the prior decisions, determinations, or rulings under the
Copyright Act of the Copyright Royalty Board, the Librarian of
Congress, the Register of Copyrights, the Copyright Arbitration Royalty
Panels (to the extent they are consistent with the current decisions,
determinations, or rulings of the Register of Copyrights or the
Librarian of Congress), or the former Copyright Royalty Tribunal.
(b) Procedures. The procedures set forth for the discretionary
referral of material questions of copyright law to the Register of
Copyrights by the Copyright Royalty Board, set forth in Sec. 354.1,
shall also govern the mandatory referral of novel questions, except
that the Register of Copyrights' decision will be timely if it is
delivered to the Copyright Royalty Board within 30 days after the
Register of Copyrights has received all of the briefs or comments of
the participants. The Copyright Royalty Board will not issue a final
determination in a proceeding where the referral of a novel question to
the Register of Copyrights under this part is pending, unless this 30-
day period has expired.
Sec. 354.3 Register of Copyrights' authority to redesignate
referrals.
If, during the 14-day period of a discretionary referral of a
material question of law under Sec. 354.1, the Register of Copyrights
determines that the question is a ``novel'' one within the meaning of
Sec. 354.2(a), the Register may notify the Copyright Royalty Board of
that determination. The Copyright Royalty Board will be bound by such a
determination by the Register of Copyrights and will regard the
Register's decision as timely delivered if it is received within the
30-day period applicable to novel question referrals.
Sec. 354.4 Consultation regarding acts required by the Register of
Copyrights.
The Copyright Royalty Board shall consult with the Register of
Copyrights with respect to any determination or ruling that would
require that any act be performed by the Copyright Office, and any such
determination or ruling shall not be binding upon the Register of
Copyrights.
Sec. 354.5 Jurisdiction of the Copyright Royalty Board unaffected.
Nothing in this part is intended to impair the jurisdiction of the
Copyright Royalty Board or to interfere with the conduct of its
proceedings. Referrals to the Register of Copyrights under this part
shall not include questions of procedure before the Copyright Royalty
Board, the ultimate adjustments and determinations of copyright royalty
rates and terms, the ultimate distribution of copyright royalties, or
the acceptance or rejection of royalty claims, rate adjustment
petitions, or petitions to participate.
[[Page 30912]]
PART 360--FILING OF CLAIMS TO ROYALTY FEES COLLECTED UNDER
COMPULSORY LICENSE
Subpart A--Cable Claims
Sec.
360.1 General.
360.2 Time of filing.
360.3 Form and content of claims.
360.4 Compliance with statutory dates.
360.5 Copies of claims.
Subpart B--Satellite Claims
360.10 General.
360.11 Time of filing.
360.12 Form and content of claims.
360.13 Compliance with statutory dates.
360.14 Copies of claims.
360.15 Separate claims required.
Subpart C--Digital audio recording devices and media royalty claims
360.20 General
360.21 Time of filing.
360.22 Form and content of claims.
360.23 Content of notices regarding independent administrators.
360.24 Compliance with statutory dates.
360.25 Copies of claims.
Authority: 17 U.S.C. 801, 803, 805.
Subpart A also issued under 17 U.S.C. 111(d)(4).
Subpart B also issued under 17 U.S.C. 119(b)(4).
Subpart C also issued under 17 U.S.C. 1007(a)(1).
Subpart A--Cable Claims
Sec. 360.1 General.
This subpart prescribes procedures under 17 U.S.C. 111(d)(4)(A)
whereby parties claiming to be entitled to cable compulsory license
royalty fees shall file claims with the Copyright Royalty Board.
Sec. 360.2 Time of filing.
During the month of July each year, any party claiming to be
entitled to cable compulsory license royalty fees for secondary
transmissions of one or more of its works during the preceding calendar
year shall file a claim to such fees with the Copyright Royalty Board.
No royalty fees shall be distributed to a party for secondary
transmissions during the specified period unless such party has timely
filed a claim to such fees. Claimants may file claims jointly or as a
single claim.
Sec. 360.3 Form and content of claims.
(a) Forms. (1) Each claim to cable compulsory license royalty fees
shall be furnished on a form prescribed by the Copyright Royalty Board
and shall contain the information required by that form and its
accompanying instructions.
(2) Copies of cable claim forms are available:
(i) On the Copyright Royalty Board Web site at http://www.loc.gov/crb/claims/
for claims filed with the Copyright Royalty Board by mail
or by hand delivery in accordance with Sec. 360.4(a)(2)-(4);
(ii) On the Copyright Royalty Board Web site at http://www.loc.gov/crb/cable/
during the month of July for claims filed online in
accordance with Sec. 360.4(a)(1); and
(iii) Upon request to the Copyright Royalty Board, Library of
Congress, P.O. Box 70977, Southwest Station, Washington, DC 20024-0977.
(b) Content. (1) Single claim. A claim filed on behalf of a single
copyright owner of a work or works secondarily transmitted by a cable
system shall include the following information:
(i) The full legal name and address of the copyright owner entitled
to claim the royalty fees.
(ii) A general statement of the nature of the copyright owner's
work or works, and identification of at least one secondary
transmission by a cable system of such work or works establishing a
basis for the claim.
(iii) The name, telephone number, facsimile number, if any, full
address, including a specific number and street name or rural route,
and e-mail address, if any, of the person or entity filing the single
claim. An e-mail address must be provided on claims submitted online
through the Copyright Royalty Board Web site.
(iv) The name, telephone number, facsimile number, if any, and e-
mail address, if any, of the person whom the Copyright Royalty Board
can contact regarding the claim.
(v) An original signature of the copyright owner or of a duly
authorized representative of the copyright owner, except for claims
filed online through the Copyright Royalty Board Web site. See 37 CFR
360.3(b)(1)(vi).
(vi) A declaration of the authority to file the claim and of the
veracity of the information contained in the claim and the good faith
of the person signing in providing such information. Penalties for
fraud and false statements are provided under 18 U.S.C. 1001 et seq.
(2) Joint claim. A claim filed on behalf of more than one copyright
owner whose works have been secondarily transmitted by a cable system
shall include the following information:
(i) A list including the full legal name and address of each
copyright owner to the joint claim entitled to claim royalty fees.
(ii) A concise statement of the authorization for the person or
entity filing the joint claim. For this purpose, a performing rights
society shall not be required to obtain from its members or affiliates
separate authorizations, apart from their standard membership affiliate
agreements, or to list the name of each of its members or affiliates in
the joint claim as required by paragraph (b)(2)(i) of this section.
(iii) A general statement of the nature of the copyright owners'
works and identification of at least one secondary transmission of one
of the copyright owners' works by a cable system establishing a basis
for the joint claim and the identification of the copyright owner of
each work so identified.
(iv) The name, telephone number, facsimile number, if any, full
address, including a specific number and street name or rural route,
and e-mail address, if any, of the person or entity filing the joint
claim. An e-mail address must be provided on claims submitted online
through the Copyright Royalty Board Web site.
(v) The name, telephone number, facsimile number, if any, and e-
mail address, if any, of the person whom the Copyright Royalty Board
can contact regarding the claim.
(vi) Original signatures of the copyright owners to the joint claim
or of a duly authorized representative or representatives of the
copyright owners, except for claims filed online through the Copyright
Royalty Board Web site. See 37 CFR 360.3(b)(2)(vii).
(vii) Notwithstanding paragraph (b)(2)(ii) of this section, a
declaration of the authority to file the claim and of the veracity of
the information contained in the claim and the good faith of the person
signing in providing such information. Penalties for fraud and false
statements are provided under 18 U.S.C. 1001 et seq.
(c) In the event that the legal name and/or address of the
copyright owner entitled to royalties or the person or entity filing
the claim changes after the filing of the claim, the Copyright Royalty
Board shall be notified of the change. If the good faith efforts of the
Copyright Royalty Board to contact the copyright owner or person or
entity filing the claim are frustrated because of failure to notify the
Copyright Royalty Board of a name and/or address change, the claim may
be subject to dismissal.
Sec. 360.4 Compliance with statutory dates.
(a) Claims filed with the Copyright Royalty Board shall be
considered timely filed only if:
(1) They are received online in the Board's server no later than 5
p.m. E.D.T. on July 31. Online claims must be filed through the
Copyright Royalty Board Web site at http://www.loc.gov/crb/cable/
during the month of July.
[[Page 30913]]
(2) They are hand delivered by a private party no later than 5 p.m.
E.D.T. on July 31. Claims hand delivered by a private party must be
delivered to the Public Information Office, located at the U.S.
Copyright Office, James Madison Memorial Building, Room LM-401, 101
Independence Avenue, SE., Washington, DC 20559-6000, Monday through
Friday, between 8:30 a.m. and 5 p.m., and the envelope must be
addressed as follows: Copyright Royalty Board, Library of Congress,
James Madison Memorial Building, LM-401, 101 Independence Avenue, SE.,
Washington, DC 20559-6000. Claims hand delivered by a private party
must be filed at the Public Information Office during the month of
July.
(3) They are hand delivered by a commercial courier (excluding
overnight delivery services such as Federal Express, United Parcel
Service and similar overnight delivery services) no later than 4 p.m.
E.D.T. on July 31. Claims hand delivered by a commercial courier
service (excluding overnight delivery services such as Federal Express,
United Parcel Service and similar overnight delivery services) must be
delivered to the Congressional Courier Acceptance Site (CCAS) located
at Second and D Street, N.E., Washington, DC, Monday through Friday,
between 8:30 a.m. and 4 p.m., and the envelope must be addressed as
follows: Copyright Royalty Board, Library of Congress, James Madison
Memorial Building, LM-403, 101 Independence Avenue, SE., Washington, DC
20559-6000. Claims hand delivered by a commercial courier must be filed
at CCAS during the month of July.
(4) They are mailed through the United States Postal Service (USPS)
having sufficient postage and bearing a July USPS postmark. Claims
mailed through USPS must be addressed as follows: Copyright Royalty
Board, P.O. Box 70977, Southwest Station, Washington, DC 20024-0977.
(5) Federal Express, United Parcel Service and similar overnight
delivery services may not be used for the filing of claims. A claim
sent by means of overnight delivery shall be done via United States
Postal Service Express Mail, and the claim shall be addressed in
accordance with paragraph (a)(4) of this section.
(b) Claims dated only with a business meter that are received after
July 31 will not be accepted as having been timely filed.
(c) Notwithstanding paragraphs (a) and (b) of this section, in any
year in which July 31 falls on a Saturday, Sunday, holiday, or other
nonbusiness day within the District of Columbia or the Federal
Government, claims received by the Copyright Royalty Board by the first
business day in August, or properly addressed and deposited with
sufficient postage with the United States Postal Service and postmarked
by the first business day in August, shall be considered timely filed.
(d) No claim may be filed by facsimile transmission.
(e) In the event that a properly addressed and mailed claim is not
timely received by the Copyright Royalty Board, proper filing of the
claim may nonetheless be proven if it was sent by certified mail return
receipt requested, and a receipt bearing a July date stamp of the
United States Postal Service, except where paragraph (c) of this
section applies, can be provided. No other offer of proof will be
accepted in lieu of the receipt.
(f) The Copyright Royalty Board will accept either the confirmation
page generated upon submission of the claim online through the Board's
Web site or the electronic mail message from the Board confirming
receipt of the claim as proof that a claim submitted online through the
Board's Web site was received timely in the Board's server. No other
offer of proof will be accepted in lieu thereof.
Sec. 360.5 Copies of claims.
A claimant shall, for each claim submitted to the Copyright Royalty
Board by hand delivery or by mail, file an original and one copy of the
claim to cable royalty fees.
Subpart B--Satellite Claims
Sec. 360.10 General.
This subpart prescribes the procedures under 17 U.S.C. 119(b)(4)
whereby parties claiming to be entitled to compulsory license royalty
fees for secondary transmissions by satellite carriers of television
broadcast signals to the public shall file claims with the Copyright
Royalty Board.
Sec. 360.11 Time of filing.
During the month of July each year, any party claiming to be
entitled to compulsory license royalty fees for secondary transmissions
by satellite carriers during the previous calendar year of television
broadcast signals to the public shall file a claim to such fees with
the Copyright Royalty Board. No royalty fees shall be distributed to
any party during the specified period unless such party has timely
filed a claim to such fees. Claimants may file claims jointly or as a
single claim.
Sec. 360.12 Form and content of claims.
(a) Forms. (1) Each claim to compulsory license royalty fees for
secondary transmissions by satellite carriers of television broadcast
signals to the public shall be furnished on a form prescribed by the
Copyright Royalty Board and shall contain the information required by
that form and its accompanying instructions.
(2) Copies of satellite claim forms are available:
(i) On the Board's Web site at http://www.loc.gov/crb/claims/ for
claims filed with the Copyright Royalty Board by mail or by hand
delivery in accordance with Sec. 360.13(a)(2)-(4);
(ii) On the Board's Web site at http://www.loc.gov/crb/satellite/
during the month of July for claims filed online in accordance with
Sec. 360.13(a)(1); and
(iii) Upon request to the Copyright Royalty Board, Library of
Congress, P.O. Box 70977, Southwest Station, Washington, DC 20024-0977.
(b) Content. (1) Single claim. A claim filed on behalf of a single
copyright owner of a work or works secondarily transmitted by a
satellite carrier shall include the following information:
(i) The full legal name and address of the copyright owner entitled
to claim the royalty fees.
(ii) A general statement of the nature of the copyright owner's
work or works, and identification of at least one secondary
transmission by a satellite carrier of such work or works establishing
a basis for the claim.
(iii) The name, telephone number, facsimile number, if any, full
address, including a specific number and street name or rural route,
and e-mail address, if any, of the person or entity filing the single
claim. An e-mail address must be provided on claims submitted online
through the Copyright Royalty Board Web site.
(iv) The name, telephone number, facsimile number, if any, and e-
mail address, if any, of the person whom the Copyright Royalty Board
can contact regarding the claim.
(v) An original signature of the copyright owner or of a duly
authorized representative of the copyright owner, except for claims
filed online through the Copyright Royalty Board Web site. See 37 CFR
360.12(b)(1)(vi).
(vi) A declaration of the authority to file the claim and of the
veracity of the information contained in the claim and the good faith
of the person signing in providing such information. Penalties for
fraud and false statements are provided under 18 U.S.C. 1001 et seq.
(2) Joint claim. A claim filed on behalf of more than one copyright
owner whose works have been secondarily
[[Page 30914]]
transmitted by a satellite carrier shall include the following
information:
(i) A list including the full legal name and address of each
copyright owner to the joint claim entitled to claim royalty fees.
(ii) A concise statement of the authorization for the person or
entity filing the joint claim. For this purpose, a performing rights
society shall not be required to obtain from its members or affiliates
separate authorizations, apart from their standard membership affiliate
agreements, or to list the name of each of its members or affiliates in
the joint claim as required by paragraph (b)(2)(i) of this section.
(iii) A general statement of the nature of the copyright owners'
works, identification of at least one secondary transmission of one of
the copyright owners' works by a satellite carrier establishing a basis
for the joint claim, and the identification of the copyright owner of
each work so identified.
(iv) The name, telephone number, facsimile number, if any, full
address, including a specific number and street name or rural route,
and e-mail address, if any, of the person or entity filing the joint
claim. An e-mail address must be provided on claims submitted online
through the Copyright Royalty Board Web site.
(v) The name, telephone number, facsimile number, if any, and e-
mail address, if any, of a person whom the Copyright Royalty Board can
contact regarding the claim.
(vi) Original signatures of the copyright owners to the joint claim
or of a duly authorized representative or representatives of the
copyright owners, except for claims filed online through the Copyright
Royalty Board Web site. See 37 CFR 360.12(b)(2)(vii).
(vii) Notwithstanding paragraph (b)(2)(ii) of this section, a
declaration of the authority to file the claim and of the veracity of
the information contained in the claim and the good faith of the person
signing in providing such information. Penalties for fraud and false
statements are provided under 18 U.S.C. 1001 et seq.
(c) In the event that the legal name and/or address of the
copyright owner entitled to royalties or the person or entity filing
the claim changes after the filing of the claim, the Copyright Royalty
Board shall be notified of the change. If the good faith efforts of the
Copyright Royalty Board to contact the copyright owner or person or
entity filing the claim are frustrated because of failure to notify the
Copyright Royalty Board of a name and/or address change, the claim may
be subject to dismissal.
Sec. 360.13 Compliance with statutory dates.
(a) Claims filed with the Copyright Royalty Board shall be
considered timely filed only if:
(1) They are received online in the Board's server no later than 5
p.m. e.d.t. on July 31. Online claims must be filed through the
Copyright Royalty Board Web site at http://www.loc.gov/crb/satellite/
during the month of July.
(2) They are hand delivered by a private party no later than 5 p.m.
e.d.t. on July 31. Claims hand delivered by a private party must be
delivered to the Public Information Office, located at the U.S.
Copyright Office, James Madison Memorial Building, Room LM-401, 101
Independence Avenue, SE., Washington, DC 20559-6000, Monday through
Friday, between 8:30 a.m. and 5 p.m., and the envelope must be
addressed as follows: Copyright Royalty Board, Library of Congress,
James Madison Memorial Building, LM-401, 101 Independence Avenue, SE.,
Washington, DC 20559-6000. Claims hand delivered by a private party
must be filed at the Public Information Office during the month of
July.
(3) They are hand delivered by a commercial courier (excluding
overnight delivery services such as Federal Express, United Parcel
Service and similar overnight delivery services) no later than 4 p.m.
e.d.t. on July 31. Claims hand delivered by a commercial courier
service (excluding overnight delivery services such as Federal Express,
United Parcel Service and similar overnight delivery services) must be
delivered to the Congressional Courier Acceptance Site (CCAS) located
at Second and D Street, NE., Washington, DC, Monday through Friday,
between 8:30 a.m. and 4 p.m., and the envelope must be addressed as
follows: Copyright Royalty Board, Library of Congress, James Madison
Memorial Building, LM-403, 101 Independence Avenue, SE., Washington, DC
20559-6000. Claims hand delivered by a commercial courier must be filed
at CCAS during the month of July.
(4) They are mailed through the United States Postal Service (USPS)
having sufficient postage and bearing a July USPS postmark. Claims
mailed through USPS must be addressed as follows: Copyright Royalty
Board, P.O. Box 70977, Southwest Station, Washington, DC 20024-0977.
(5) Federal Express, United Parcel Service and similar overnight
delivery services may not be used for the filing of claims. A claim
sent by means of overnight delivery shall be done via United States
Postal Service Express Mail, and the claim shall be addressed in
accordance with paragraph (a)(4) of this section.
(b) Claims dated only with a business meter that are received after
July 31 will not be accepted as having been timely filed.
(c) Notwithstanding paragraphs (a) and (b) of this section, in any
year in which July 31 falls on a Saturday, Sunday, holiday, or other
nonbusiness day within the District of Columbia or the Federal
Government, claims received by the Copyright Royalty Board by the first
business day in August, or properly addressed and deposited with
sufficient postage with the United States Postal Service and postmarked
by the first business day in August, shall be considered timely filed.
(d) No claim may be filed by facsimile transmission.
(e) In the event that a properly addressed and mailed claim is not
timely received by the Copyright Royalty Board, proper filing of the
claim may nonetheless be proven if it was sent by certified mail return
receipt requested, and a receipt bearing a July date stamp of the
United States Postal Service, except where paragraph (c) of this
section applies, can be provided. No other offer of proof will be
accepted in lieu of the receipt.
(f) The Copyright Royalty Board will accept either the confirmation
page generated upon submission of the claim online through the Board's
Web site or the electronic mail message from the Board confirming
receipt of the claim as proof that a claim submitted online through the
Board's Web site was received timely in the Board's server. No other
offer of proof will be accepted in lieu thereof.
Sec. 360.14 Copies of claims.
A claimant shall, for each claim submitted to the Copyright Royalty
Board by hand delivery or by mail, file an original and one copy of the
claim to satellite carrier royalty fees.
Sec. 360.15 Separate claims required.
If a party intends to file claims for both cable compulsory license
and satellite carrier compulsory license royalty fees during the same
month of July, that party must file separate claims with the Copyright
Royalty Board. Any single claim which purports to file for both cable
and satellite carrier royalty fees will be dismissed.
Subpart C--Digital Audio Recording Devices and Media Royalty Claims
Sec. 360.20 General.
This subpart prescribes procedures pursuant to 17 U.S.C.
1007(a)(1),
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whereby interested copyright parties, as defined in 17 U.S.C. 1001(7),
claiming to be entitled to royalty payments made for the importation
and distribution in the United States, or the manufacture and
distribution in the United States, of digital audio recording devices
and media pursuant to 17 U.S.C. 1006, shall file claims with the
Copyright Royalty Board.
Sec. 360.21 Time of filing.
(a) General. During January and February of each succeeding year,
every interested copyright party claiming to be entitled to digital
audio recording devices and media royalty payments made for quarterly
periods ending during the previous calendar year shall file a claim
with the Copyright Royalty Board. Claimants may file claims jointly or
as a single claim.
(b) Consequences of an untimely filing. No royalty payments for the
previous calendar year shall be distributed to any interested copyright
party who has not filed a claim to such royalty payments during January
or February of the following calendar year.
(c) Authorization. Any organization or association, acting as a
common agent, shall be required to obtain from its members or
affiliates separate, specific, and written authorization, signed by
members, affiliates, or their representatives, to file claims to the
Musical Works Fund or the Sound Recordings Fund, apart from their
standard agreements, for purposes of royalties filing and fee
distribution. Such written authorization, however, will not be required
for claimants to the Musical Works Fund where either:
(1) The agreement between the organization or association and its
members or affiliates specifically authorizes such entity to represent
its members or affiliates before the Copyright Royalty Board in royalty
filing and fee distribution proceedings; or
(2) The agreement between the organization or association and its
members or affiliates, as specified in a court order issued by a court
with authority to interpret the terms of the contract, authorizes such
entity to represent its members or affiliates before the Copyright
Royalty Board in royalty filing and fee distribution proceedings.
Sec. 360.22 Form and content of claims.
(a) Forms. (1) Each claim to digital audio recording devices and
media royalty payments (DART) shall be furnished on a form prescribed
by the Copyright Royalty Board and shall contain the information
required by that form and its accompanying instructions.
(2) Copies of DART claim forms are available:
(i) On the Board's Web site at http://www.loc.gov/crb/claims for
claims filed with the Copyright Royalty Board by mail or by hand
delivery in accordance with Sec. 360.24(a)(2)-(4);
(ii) On the Board's Web site at http://www.loc.gov/crb/dart/ during
the months of January and February for claims filed online in
accordance with Sec. 360.24(a)(1); and
(iii) Upon request to the Copyright Royalty Board, Library of
Congress, P.O. Box 70977, Southwest Station, Washington, DC 20024-0977.
(b) Content. Claims filed by interested copyright parties for
digital audio recording devices and media royalty payments shall
include the following information:
(1) The full legal name and address of the person or entity
claiming royalty payments.
(2) The name, telephone number, facsimile number, if any, full
address, including a specific number and street name or rural route,
and e-mail address, if any, of the person or entity filing the claim.
An e-mail address must be provided on claims submitted online through
the Copyright Royalty Board Web site.
(3) The name, telephone number, facsimile number, if any, and e-
mail address, if any, of a person whom the Copyright Royalty Board can
contact regarding the claim.
(4) A statement as to how the claimant fits within the definition
of interested copyright party specified in 17 U.S.C. 1001(7).
(5) A statement as to whether the claim is being made against the
Sound Recordings Fund or the Musical Works Fund, as set forth in 17
U.S.C. 1006(b), and as to which Subfund of the Sound Recordings Fund
(i.e., the copyright owners or featured recording artists Subfund) or
the Musical Works Fund (i.e., the music publishers or writers Subfund)
the claim is being made against as set forth in 17 U.S.C. 1006(b)(1)
through (2).
(6) Identification, establishing a basis for the claim, of at least
one musical work or sound recording embodied in a digital musical
recording or an analog musical recording lawfully made under title 17
of the United States Code that has been distributed (as that term is
defined in 17 U.S.C. 1001(6)), and that, during the period to which the
royalty payments claimed pertain, has been (i) Distributed (as that
term is defined in 17 U.S.C. 1001(6)) in the form of digital musical
recordings or analog musical recordings, or (ii) Disseminated to the
public in transmissions.
(7) A declaration of the authority to file the claim and of the
veracity of the information contained in the claim and the good faith
of the person signing in providing such information. Penalties for
fraud and false statements are provided under 18 U.S.C. 1001 et seq.
(c) Claims shall bear the original signature of the claimant or of
a duly authorized representative of the claimant, except for claims
filed online through the Copyright Royalty Board Web site. See 37 CFR
360.22(b)(7).
(d) In the event that the legal name and/or address of the claimant
changes after the filing of the claim, the claimant shall notify the
Copyright Royalty Board of such change. If the good faith efforts of
the Copyright Royalty Board to contact the claimant are frustrated
because of failure to notify the Copyright Royalty Board of a name and/
or address change, the claim may be subject to dismissal.
(e) If the claim is a joint claim, it shall include a concise
statement of the authorization for the filing of the joint claim in
addition to the declaration required under paragraph (b)(7) of this
section and the name of each claimant to the joint claim.
(f) If an interested copyright party intends to file claims against
more than one Subfund, each such claim must be filed separately with
the Copyright Royalty Board. Any claim that purports to file against
more than one Subfund will be rejected.
Sec. 360.23 Content of notices regarding independent administrators.
(a) The independent administrator jointly appointed by the
interested copyright parties, as defined in 17 U.S.C. 1001(7)(A), and
the American Federation of Musicians (or any successor entity) for the
purpose of managing, and ultimately distributing the royalty payments
to nonfeatured musicians as defined in 17 U.S.C. 1006(b)(1), shall file
a notice informing the Copyright Royalty Board of his/her name and
address.
(b) The independent administrator jointly appointed by the
interested copyright parties, as defined in 17 U.S.C. 1001(7)(A), and
the American Federation of Television and Radio Artists (or any
successor entity) for the purpose of managing, and ultimately
distributing the royalty payments to nonfeatured vocalists as defined
in 17 U.S.C. 1006(b)(1), shall file a notice informing the Copyright
Royalty Board of his/her full name and address.
(c) A notice filed under paragraph (a) or (b) of this section shall
include the following information:
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(1) The full name of the independent administrator;
(2) The telephone number and facsimile number, if any, full
address, including a specific number and street name or rural route, of
the place of business of the independent administrator.
(d) Notice shall bear the original signature of the independent
administrator or a duly authorized representative of the independent
administrator, and shall be filed with the Copyright Royalty Board no
later than March 31 of each year, commencing with March 31, 2006.
(e) No notice may be filed by facsimile transmission.
Sec. 360.24 Compliance with statutory dates.
(a) Claims filed with the Copyright Royalty Board shall be
considered timely filed only if:
(1) They are received online in the Board's server no later than 5
p.m. E.S.T. on the last day of February. Online claims must be filed
through the Copyright Royalty Board Web site at http://www.loc.gov/crb/dart/
during the months of January and February.
(2) They are hand delivered by a private party no later than 5 p.m.
E.S.T. on the last day of February. Claims hand delivered by a private
party must be delivered to the Public Information Office, located at
the U.S. Copyright Office, James Madison Memorial Building, Room LM-
401, 101 Independence Avenue, SE., Washington, DC 20559-6000, Monday
through Friday, between 8:30 a.m. and 5 p.m., and the envelope must be
addressed as follows: Copyright Royalty Board, Library of Congress,
James Madison Memorial Building, LM-401, 101 Independence Avenue, SE.,
Washington, DC 20559-6000. Claims hand delivered by a private party
must be filed at the Public Information Office during the months of
January and February.
(3) They are hand delivered by a commercial courier (excluding
overnight delivery services such as Federal Express, United Parcel
Service and similar overnight delivery services) no later than 4 p.m.
E.S.T. on the last day of February. Claims hand delivered by a
commercial courier service (excluding overnight delivery services such
as Federal Express, United Parcel Service and similar overnight
delivery services) must be delivered to the Congressional Courier
Acceptance Site (CCAS) located at Second and D Street, NE., Washington,
DC, Monday through Friday, between 8:30 a.m. and 4 p.m., and the
envelope must be addressed as follows: Copyright Royalty Board, Library
of Congress, James Madison Memorial Building, LM-403, 101 Independence
Avenue, SE., Washington, DC 20559-6000. Claims hand delivered by a
commercial courier must be filed at CCAS during the months of January
and February.
(4) They are mailed through the United States Postal Service (USPS)
having sufficient postage and bearing a January or February USPS
postmark. Claims mailed through USPS must be addressed as follows:
Copyright Royalty Board, P.O. Box 70977, Southwest Station, Washington,
DC 20024-0977.
(5) Federal Express, United Parcel Service and similar overnight
delivery services may not be used for the filing of claims. A claim
sent by means of overnight delivery shall be done via United States
Postal Service Express Mail, and the claim shall be addressed in
accordance with paragraph (a)(4) of this section.
(b) Claims dated only with a business meter that are received after
the last day in February will not be accepted as having been timely
filed.
(c) Notwithstanding paragraphs (a) and (b) of this section, in any
year in which the last day of February falls on a Saturday, Sunday, a
holiday, or other nonbusiness day within the District of Columbia or
the Federal Government, claims received by the Copyright Royalty Board
by the first business day in March, or properly addressed and deposited
with sufficient postage with the United States Postal Service and
postmarked by the first business day in March, shall be considered
timely filed.
(d) No claim may be filed by facsimile transmission.
(e) In the event that a properly addressed and mailed claim is not
timely received by the Copyright Royalty Board, proper filing of the
claim may nonetheless be proven if it was sent by certified mail return
receipt requested, and a receipt bearing a January or February date
stamp of the United States Postal Service, except where paragraph (c)
of this section applies, can be provided. No other offer of proof will
be accepted in lieu of the receipt.
(f) The Copyright Royalty Board will accept either the confirmation
page generated upon submission of the claim online through the
Copyright Royalty Board Web site or the electronic mail message from
the Copyright Royalty Board confirming receipt of the claim as proof
that a claim submitted online through the Copyright Royalty Board Web
site was received timely in the Board's server. No other offer of proof
will be accepted in lieu thereof.
Sec. 360.25 Copies of claims.
A claimant shall, for each claim submitted to the Copyright Royalty
Board by hand delivery or by mail, file an original and one copy of the
claim to digital audio recording devices and media royalty payments.
Dated: May 19, 2005.
Bruce G. Forrest,
Interim Chief Copyright Royalty Judge, Copyright Royalty Board.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 05-10553 Filed 5-27-05; 8:45 am]
BILLING CODE 1410-72-P