[Federal Register: July 27, 2005 (Volume 70, Number 143)]
[Proposed Rules]
[Page 43364-43368]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy05-36]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 270
[Docket No. RM 2005-2]
Notice and Recordkeeping for Use of Sound Recordings Under
Statutory License
AGENCY: Copyright Royalty Board, Library of Congress.
ACTION: Supplemental request for comments.
-----------------------------------------------------------------------
SUMMARY: The Interim Chief Copyright Royalty Judge, on behalf of the
Copyright Royalty Board of the Library of Congress, is issuing a
supplemental request for comments regarding rules for the delivery and
format of records of use of sound recordings for statutory licenses
under sections 112 and 114 of the Copyright Act.
DATES: Written comments should be received no later than August 26,
2005. Reply comments should be received no later than September 16,
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
other 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:
I. Overview
The Copyright Act, as amended by the Digital Millennium Copyright
Act (Pub. L. 105-304, 112 Stat. 2860 (1998)), provides a statutory
license for digital audio transmissions by certain eligible
subscription, nonsubscription, satellite digital audio radio, business
establishment and new subscription services (17 U.S.C. 114(f)(4)(A))
and a related ``ephemeral'' statutory license for the temporary
recordings used in those transmissions (17 U.S.C. 112(e)(4)). The
statute directs the Librarian of Congress to ``establish requirements
by which copyright owners may receive reasonable notice of the use of
their sound recordings under this section, and under which records of
use shall be kept and made available by entities performing sound
recordings[]'' by digitial audio transmission. 17 U.S.C. 114(f)(4)(A);
see, also 17 U.S.C. 112(e)(4). Avoidance of infringement liability is
contingent upon ``complying with such notice requirements * * *.'' 17
U.S.C. 114(f)(4)(B)(i).
Through extensive prior proceedings, the Librarian has partially
``establish[ed] requirements by which copyright owners may receive
reasonable notice of the use of their sound recordings,'' adopting
interim regulations on the types of information that must be kept by
digital audio services under 17 U.S.C. 114(f)(4)(A) and 112(e)(4). See,
69 FR 11515 (March 11, 2004). A notice of proposed rulemaking on the
issues of delivery and formatting was published on April 27, 2005, by
the Copyright Office. 70 FR 21704. Responsibility for the notice and
recordkeeping regulations was transferred by Congress to the Copyright
Royalty Judges (``CRJs'') by amended sections 114(f)(4)(A) and
112(e)(4) in the Copyright Royalty and Distribution Reform Act of 2004,
Pub. L. 108-419, 118 Stat. 2341 (November 30, 2004), which became
effective on May 31, 2005. As anticipated in the April 27, 2005, notice
of proposed rulemaking, the rulemaking record, including the comments
received on the proposed
[[Page 43365]]
delivery and formatting rules, has been transferred to the Copyright
Royalty Board (``the Board''), which was created by the Librarian to
house the functions of the CRJs.
By this notice, the Copyright Royalty Board is seeking further
comments on the rules proposed by the Copyright Office in the April 27,
2005, notice of proposed rulemaking (``NPRM''). These additional
comments are sought in an effort to improve the quality of the Board's
consideration of these important matters.
II. The Need for Supplemental Rulemaking Comments
This rulemaking task has proved nettlesome and frustrating. The
written comments received from copyright owners \1\ and licensees, \2\
pursuant to the April 27, 2005, notice of proposed rulemaking,
underscores the continued sharp divisions among the parties on the
highly technical formatting and delivery issues. Resolution of these
issues does not draw upon a reservoir of traditional agency expertise.
The written comments seem frequently characterized by conclusory
assertions and the issuance of a final rule on this record would be
extremely difficult.
---------------------------------------------------------------------------
\1\ SoundExchange,Inc. (``SoundExchange''), which has been
designated as the Receiving Agent for royalties paid pursuant to the
section 112 and 114 statutory licenses, has filed extensive comments
in these rulemaking proceedings. The Board has also received
comments of a limited nature from Royalty Logic, Inc. (``RLI'').
\2\ Comments reflecting the views of the digital audio service
providers have been received from Collegiate Broadcasters, Inc.
(``CBI''); Harvard Radio Broadcasting Company, Inc. (``WHRB''); the
Intercollegiate Broadcasting System, Inc. (``IBS''); and the
National Religious Broadcasters Music License Committee and Salem
Communications Corp. (``NRBMLC/Salem'').
---------------------------------------------------------------------------
The Board's goal here is to obtain a fair and practical allocation
of the burdens of data delivery for those who are unable to negotiate
their own data delivery solutions with SoundExchange. The resulting
system should not impose an unnecessary burden on copyright owners; at
this time, the system cannot allow copyright owners to throw up burdens
that would defeat or unnecessarily discourage use of the statutory
licenses. The Board is earnestly asking for more specific, additional
information that will reduce the speculative nature of its rulemaking
decision to the degree possible. The information should be detailed
enough to provide support for, and rebuttal to, assertions regarding
the burdens imposed by the proposed rules or by the logical
alternatives to those rules. Citations to supporting references should
be provided wherever possible. Reports from expert consultants are
encouraged.
In issuing this supplemental notice, the Board stresses that it has
not made a decision on the merits of any of the formatting and delivery
issues presented in this rulemaking proceeding and will consider any
further comments on any matter interested persons might wish to offer.
The Board is, however, urging commenters to zero in on the following
specific technical issues.
III. Specific Factual Questions
A. Spreadsheets
SoundExchange has agreed to allow webcasters to use two
commercially available spreadsheets in creating and formatting records
of use for each sound recording used under sections 112 and 114 of the
Copyright Act. SoundExchange has already posted on its Web site a
template for Microsoft Excel and asserts that a version for Correl's
Quattro Pro will soon be posted. It submits that ``due to the
significant limitations of spreadsheets, SoundExchange shall not be
required to provide technical support for the use of spreadsheets for
recordkeeping purposes.'' SoundExchange comments at Exhibit B at 3 (May
27, 2005). All spreadsheet data must be converted into an American
Standard Code for Information Interchange (``ASCII'') format prior to
delivery to SoundExchange.
CBI and WHRB offer the following objections. CBI objects that
SoundExchange will not provide technical assistance to services seeking
to complete spreadsheets and that such a provision ``absolves
SoundExchange of any responsibility to provide a template and
instructions that are free from errors, no matter how egregious.'' CBI
comments at 8 (May 27, 2005). CBI and WHRB assert that converting
spreadsheet data to ASCII is expensive, impractical, and ``eliminates
the only reasonable, financially accessible, and widely available
tool.'' Id.; WHRB comments at 6 (May 27, 2005) (``The process of using
a spreadsheet program to export an ASCII file is difficult and will be
prone to errors, particularly in the hands of unpaid volunteers with
relatively high rates of turnover.'')
Questions:
1. How expensive and time-consuming would it be for a typical
noncommercial webcaster on the Internet to compile spreadsheets using
Microsoft Excel? Using Corel Quattro Pro?
2. What are the practical difficulties in converting a Microsoft
Excel or Corel Quattro Pro spreadsheet into ASCII? How costly is it?
3. What are the kinds of technical support that are typically
needed in preparing Microsoft Excel and Corel Quattro Pro spreadsheets
and converting them to ASCII? How would that technical support be
available to a webcaster and what costs would be involved?
B. Commercially Available Software
Although the Copyright Office NPRM only addressed commercially
available spreadsheets as a means of creating records of use, the Board
is interested in knowing what, if any, software is commercially
available that could be used to compile records of use.
Questions:
What, if any, commercially available software is available that
could be used to compile records of use? Would such software produce
records of use that are format compatible with SoundExchange's data
processing system? What are the costs associated with such software?
C. Report Delivery
SoundExchange supports four methods of delivery for electronic data
files: File Transfer Protocol (``FTP''); electronic mail attachment;
CD-ROM delivery and; floppy diskette delivery. Each of these delivery
methods has specific requirements (examples: e-mail attachments may not
exceed ten megabytes; FTP delivery requires securing username and
password; floppy diskettes must measure 3.5 inches in diameter).
Webcasters do not object to the proposed delivery methods.
However, WHRB recommends that records of use should be accepted by
SoundExchange via its Web site. Once logged in, services would have the
ability to upload new reports to the SoundExchange site, ``with
SoundExchange automatically handling the naming and tagging of the
reports.'' The Web site could also allow the webcasters to view their
history of submitted reports. WHRB comments at 6-7 (May 27, 2005).
SoundExchange has opposed allowing delivery of records of use to a Web
site, citing unspecified cost and security concerns. See 70 FR 21704,
21707 (April 27, 2005).
Questions:
1. What are the average estimated costs of creating and maintaining
a Web site for receipt of records of use? What are the security
concerns and how may they be addressed? Is there a commercially
available Web site software that could perform this task? Is Web site
software available that could
[[Page 43366]]
be adopted from other SoundExchange uses?
2. To what extent can a SoundExchange-hosted Web site reduce costs
associated with records of use? Can it assist in organizing and
cataloging delivered data and, if so, in what fashion and to what
extent?
3. Could a SoundExchange-hosted Web site be required to provide
services with access to prior submitted records of use? For how long?
D. File Naming
Every record of use must be named and must contain the dates of the
reporting period. SoundExchange insists that the ``[s]tart and end
dates should be in the format of day, month, and year (DDMMYYYY) where
DD is the two-digit day of the log period (beginning or end); MM is the
two-digit month of the log period; and YYYY is the four-digit year of
the log period (beginning or end).'' SoundExchange comments, Exhibit B
at 4 (May 27, 2005). NRBMLC/Salem urge that the reporting dates for
data files should be in the format of YYYYMMDD, which they state is
``the official format adopted by the ASCII standard.'' NRBMLC/Salem
comments at 1 (May 27, 2005); See, also NRBMLC/Salem comments at 5
(September 30, 2002) and NRBMLC/Salem reply comments at 8 (October 10,
2002).
In addition, NRBMLC/Salem submit that ``we are concerned about
radio stations that may not have the technological capability of
assigning file names the length that SoundExchange's proposal
envisions.'' Id.
Questions:
1. What is the ASCII standard for reporting days, months and years?
Is one way more cumbersome or expensive than the other?
2. What is required to be technologically capable of assigning file
names of the length proposed in the NPRM?
E. File Extension
SoundExchange requests that the service name, start and end date of
the reporting period and the transmission category be followed by the
file extension ``.txt.''. An example of a file identifier is as
follows: ex. AcmeMusicCo15012005-21012005--H.txt. NRBMLC/Salem objects
to the sole use of ``.txt'' as a file extension and asserts that
``[t]here is no need for the Office to regulate at this level of
detail, and alternate file type extensions should be allowed so long as
the data contained in the file is in the appropriate format.'' NRBMLC/
Salem reply comments at 9 (October 10, 2002).
Questions:
1. What difficulties would it create for SoundExchange if reports
without .txt file extensions and/or with different file extensions were
submitted?
2. What difficulties would it create for digital audio services if
they were required to use .txt file extensions on their reports?
F. Delivery Address
RLI requests that it receive all records of use. RLI comments at 1
(May 27, 2005).
Questions:
1. What standing does RLI have to request copies of the reports of
use?
2. How expensive and burdensome would it be, on average, for
services to provide RLI with records of use in addition to
SoundExchange?
3. Must all the format requirements be the same?
G. Files With Headers
SoundExchange requests that the following header appear, in order,
on each data file of a record of use:
------------------------------------------------------------------------
Row No. Field definition
------------------------------------------------------------------------
1................................ Name of Serivice.
2................................ Name of Contact Person.
3................................ Street Address.
4................................ City, State, Zip, Country.
5................................ Phone.
6................................ E-mail.
7................................ Start of the Reporting Period.
8................................ End of the Reporting Period.
9................................ Report Generation Date.
10............................... Number of Rows.
11............................... Text Indicators.
12............................... Field Delimiters.
13............................... Blank Line.
14...............................
------------------------------------------------------------------------
SoundExchange comments Exhibit B at 8 (May 27, 2005).
NRBMLC/Salem object to SoundExchange's requested format for a file
with headers on multiple grounds. First, they assert that the contact
information on the first six lines should not be required since
preexisting subscription services are not required to report such
information in a file with headers. See 37 CFR 270.2. Second they
assert that there is no reason to require lines 7 and 8 because the
information contained therein already appears in the file name. Third,
they assert that line 9 is completely unnecessary because the report
generation date has nothing to do with the distribution of royalties.
And fourth, NRBMLC/Salem submit that row 10 is unnecessary because the
information has nothing to do with a station's music use.
NRBMLC/Salem comments Exhibit 2 at 7-8.
NRBMLC/Salem assert that files with headers should resemble the
format followed by the webcasters that generate playlists. They propose
the following requirements for files with headers:
i. A file identifying the data fields conforming to the following
specifications with accompanying header information:
1. The file may identify the sound recordings performed on a
particular day or during a particular multiple-day reporting period.
2. The file must contain at least the fields required to be
reported * * * but may contain additional fields. If the file contains
data concerning sound recording transmissions spanning more than one
day, the date of transmission of each sound recording shall also be
specified in each data record.
3. The Service shall provide header information that identifies the
required fields of information and the order in which they appear in
the file. The header information shall include field identifiers from
the following list:
a. DATE, to identify the date on which a sound recording was
performed;
b. TITLE, to identify the title of the sound recording;
c. ARTIST, to identify the featured performing artist;
d. ALBUM, to identify the album from which the sound recording was
played, if, in fact, the sound recording was played from an album and
if that information is in the source file that was used to create the
playlist;
e. LABEL, to identify the record label that distributes the sound
recording, if that information is in the source file that was used to
create the playlist;
f. LISTENER, to identify the estimated number of listeners who
heard the particular sound recording performed; and
g. IRREL, to identify irrelevant fields not required to be
reported.
4. At the Service's option, header information may be embedded in
the file as the first line of data, or it may be provided to the
Collective \3\ separately. The Service shall notify the Collective of
the means of transmitting such header information.
---------------------------------------------------------------------------
\3\ The ``Collective'' in this instance is SoundExchange, and
possibly Royalty Logic if its proposal for inclusion is adopted.
---------------------------------------------------------------------------
5. At the Service's option, information concerning the estimated
number of listeners to particular sound recordings may be submitted in
a separate file with accompanying header information including, without
limitation, the DATE and LISTENER field identifiers set forth above * *
*
6. Notwithstanding the above requirements, output files generated
by
[[Page 43367]]
a Broadcaster's music scheduling or digital automation software shall
be deemed to be in an acceptable format provided that they are
accompanied by header information described above to identify the data
fields contained therein.
NRBMLC/Salem reply comments Tab A at 2-4 (September 30, 2002) (footnote
added).
Questions:
1. How are files with headers typically organized? Are there any
generally recognized standards for music reporting? What are the
software requirements and costs associated with creating data files
with headers?
2. Given that preexisting subscription services are not required by
Copyright Office regulations to report the data contained in the first
six lines of SoundExchange's proposal, what are the costs/benefits to
requiring this information in each data file?
3. Given that lines 7 and 8 of the header information contained in
SoundExchange's proposal are already reported in the file name, what
are the costs/benefits of requiring them to be repeated in each data
file?
4. To what extent must the header information in SoundExchange's
proposal be provided in the requested order? Is any variance possible?
What are the costs/benefits associated with variances?
5. What are the problems, if any, associated with the NRBMLC/Salem
proposal for files with headers? Do they present compatibility issues
with the SoundExchange data processing system and, if so, what are
those issues?
6. Can there be flexibility in the regulations for the creation of
files with headers or must the regulations be rigid?
H. Field Delimiters and Text Indicators
SoundExchange proposes the field delimiter for a data string be a
pipe (`` [bond] '') and that the text indicator be a carat
(``[caret]'') and that in no instance may a field delimiter or text
indicator appear in a data string. SoundExchange comments Exhibit B at
8 (May 27, 2005). Harvard and NRBMLC/Salem propose the use of commas
for field delimiters and quotes as text delimiters, arguing that these
are the industry standards. NRBMLC/Salem comments at 1-2 (May 27,
2005).
Questions:
1. What are the industry standards for use of field delimiters and
text delimiters? Should particular ones be specified in the
regulations? To what extent is flexibility acceptable in their
selection?
2. What problems will be created by allowing the use of commas and
quotes as field delimiters and text indicators, respectively? How can
such problems, if any, be avoided?
I. Data Fields
SoundExchange requests that all data appearing in data fields be in
upper case characters (ex. THE ROLLING STONES). SoundExchange comments
Exhibit B at 11 (May 27, 2005). CBI submits that while the:
[U]se [of] all capital letters in the data fields might be
convenient for SoundExchange, [it] is a substantial problem for
stations in numerous ways. Stations that have existing databases would
have to go back and change every record in their database, not an
insignificant prospect. This would be a time consuming task that would
also likely induce additional errors in the database. Stations that
manually enter the data by hand at the time of use will likely
encounter many unintentional cases of the data being entered
improperly. Further, those that utilize this data for other uses will
likely not want the data to be in all capital letters, which would
require such stations to maintain two separate databases.
CBI comments at 10 (May 27, 2005).
Questions:
1. What are the costs/benefits of requiring all data fields to be
in upper case characters? Will the SoundExchange data processing system
accept lower case characters in a data field and combinations thereof?
2. What is the industry standard for data fields?
J. Abbreviations
SoundExchange requests that there not be any abbreviations
permitted in the data fields. SoundExchange comments Exhibit B at 11
(May 27, 2005). CBI, NRBMLC/Salem and WHRB object. CBI submits that
disallowing abbreviations will increase the likelihood of data entry
errors due to the voluntary nature of staff and/or the requirement
would ``cause a major expense and/or disruption'' to their existing
practices. CBI comments at 11 (May 27, 2005). NRBMLC/Salem states that
``[t]he very concept that there is a ``standard'' manner of inputting
title and artist information in light of the many ways in which
stations receive music and the varying practices amongst broadcasters
defies common sense.'' NRBMLC/Salem reply comments at 7 (October 10,
2002). WHRB argues that SoundExchange should be required to ``compile
and make publicly available a comprehensive, universal database to
identify sound recordings.''
WHRB comments at 8 (May 27, 2005).
Questions:
1. What problems, if any, does allowing abbreviations within data
fields present to SoundExchange's data processing system? How can these
be addressed?
2. Can a set of rules be developed that permit abbreviations within
data fields and, if so, what should these rules be?
3. What are the burdens and costs associated with the creation and
maintenance of a data-base of sound recording titles, album titles,
artists' names, etc. by SoundExchange? What should be the functionality
of such a database? How could such a database be utilized to reduce the
overall costs of reporting records of use?
K. Files Without Headers
SoundExchange requests the following format requirements for data
files without headers:
(1) ASCII delimited format, using pipe ( [bond] ) characters as
delimiters, with no headers or footers;
(2) Carets ([caret]) should be used as the text indicator,
surrounding alphanumeric data elements such as name of Service,
transmission category, channel name, artist, song title, album;
(3) No carets ([caret]) should surround dates and numbers;
(4) A carriage return must be at the end of each line; [and]
(5) All data for one record should be on a single line.
SoundExchange comments Exhibit B at 11 (May 27, 2005)(sixth format
requirement omitted).
NRBMLC/Salem proposes different requirements for files without
headers:
A file containing data records only, with no header information,
and conforming to the following specifications.
1. The file may identify the sound recordings performed on a
particular day or during a particular multiple-day reporting period.
2. The file must contain only the fields required to be reported *
* *, in a particular order reasonably agreed upon by the Service and
the Collective.
3. At the Service's option, information concerning the estimated
number of listeners to particular sound recordings may be submitted in
a separate file containing date and listener information in an order
reasonably agreed upon by the Service and the Collective.
NRBMLC/Salem reply comments Tab A at 4 (September 30, 2002).
Questions:
1. Are there industry standards for compiling data files without
headers and, if so, what are they? What are the
[[Page 43368]]
costs/benefits of compiling data files without headers versus those
with headers?
2. How flexible can the format requirements be for files without
headers? What are the options?
3. Can categories of data be submitted in separate files or must it
all be submitted in a single file? What is the capability of
SoundExchange's data processing system to handle more than one file of
data per Service?
4. To what extent could it be permissible to allow automated
services to report playlist data in native form to SoundExchange?
IV. Legal and Policy Questions
In addition to the specific technical questions presented above,
interested persons are also encouraged to supply their views on the
following questions of a more general nature.
Questions:
1. Did Congress, in 17 U.S.C. 114(f)(4)(A) and 112(e)(4), require
the Copyright Royalty Judges to prescribe particular formatting and
delivery requirements at the level of detail described in the April 27,
2005, notice of proposed rulemaking? Is there some relevant set of
Internet conventions or practices that could guide the Board in setting
data submission standards here?
2. Could a system of webcast sampling, analogous to the sampling
performed by performing rights societies in the context of
broadcasting, meet the record-of-use requirements of 17 U.S.C.
114(f)(4)(A) and 112(e)(4)?
3. Under the provisions of any final rule adopted to implement the
notice and record of use requirements of 17 U.S.C. 114(f)(4)(A) and
112(e)(4), either copyright owners (in the form of their agent,
SoundExchange) or licensees will be burdened with having to change
their existing data systems. From a legal and a policy perspective, on
whom is it most appropriate to place these burdens? Is the court's
discussion in Amusement and Music Operators Association v. Copyright
Royalty Tribunal, 676 F.2d 1144, 1154-55 (7th Cir. 1982), cert. denied,
459 U.S. 907 (1982) (``depriv[ing] copyright owners of increased
remuneration for the exploitation of their works by showing that some *
* * operations will become unprofitable is * * * unsound and unjust'')
pertinent to this inquiry?
V. Encouragement of Settlement
As the Copyright Office has repeatedly stated, it would be far
preferable for the parties to reach their own agreement on these
formatting and delivery issues. Government regulation, especially at
this level of detail, is an undesirable substitute for industry
agreement. The parties who will be affected by the format and delivery
regulations should confer and advise the Board if some or all of them
can jointly propose solutions with respect to any of the issues raised
in these proceedings.
Dated: July 21, 2005.
Bruce G. Forrest,
Interim Chief Copyright Royalty Judge.
[FR Doc. 05-14872 Filed 7-26-05; 8:45 am]
BILLING CODE 1410-72-P