[Federal Register: October 6, 2006 (Volume 71, Number 194)]
[Rules and Regulations]
[Page 59010-59019]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc06-7]
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LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 370
[Docket No. RM 2005-2]
Notice and Recordkeeping for Use of Sound Recordings Under
Statutory License
AGENCY: Copyright Royalty Board, Library of Congress.
ACTION: Interim final rule.
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SUMMARY: The Copyright Royalty Judges, on behalf of the Copyright
Royalty Board, are issuing interim regulations for the delivery and
format of reports of use of sound recordings for the statutory licenses
set forth in sections 112 and 114 of the Copyright Act.
EFFECTIVE DATE: October 6, 2006.
FOR FURTHER INFORMATION CONTACT: Gina Giuffreda, Attorney-Advisor, or
Abioye Oyewole, CRB Program Specialist. Telephone (202) 707-7658.
Telefax (202) 252-3423.
SUPPLEMENTARY INFORMATION:
I. Background
Today's Interim Regulations complete the second half of the
proceeding, begun by the Librarian of Congress and the Copyright Office
and now entrusted to the Copyright Royalty Board (``Board''), to
establish notice and recordkeeping requirements for digital audio
services utilizing the statutory licenses set forth in sections 112 and
114 of the Copyright Act. The first half of the proceeding prescribed
interim regulations for the filing of notices of intention to use the
section 112 and/or 114 licenses, as required by section 112(e)(7)(A)
and section 114(f)(4)(B), respectively, and interim regulations for the
elements of data that comprise a report of use. See 69 FR 11515 (March
1, 2004). With the issuance of today's regulations, digital audio
services that have been maintaining reports of use since April 1, 2004
\1\ will now be able to deliver those and future reports to copyright
owners for their use in distributing royalty fees collected under the
section 112 and 114 licenses.
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\1\ The Copyright Office also issued a final rule addressing
reports of use under the section 112 and 114 licenses for the period
October 28, 1998 through March 31, 2004. 69 FR 58261 (September 30,
2004). The Office determined that reports of use submitted by
preexisting subscription services during that time period should
serve as a proxy for reports from nonsubscription services, the
satellite digital audio radio services, business establishment
services and new types of subscription services. Consequently, the
Interim Regulations issued on March 11, 2004 regarding notice and
content of a report of use, and today's Interim Regulations
regarding the format and delivery of a report of use, do not apply
to the October 28, 1998 to March 31, 2004 period.
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The matter of reports of use of sound recordings under the section
112 and 114 licenses has been contentious.\2\ The Copyright Office
first began the proceeding by issuing a Notice of Proposed Rulemaking
(``NPRM''), 67 FR 5761 (February 7, 2002), and then, on May 10, 2002,
held a public meeting to facilitate discussion as to the data to be
included in a report of use, the frequency of the recordkeeping, and
the manner and format for delivery to copyright owners. Persons
representing copyright owners, users, and performers appeared and
offered their opinions and criticisms of the NPRM and offered
suggestions as to the amount of information necessary to distribute
royalties collected under the section 112
[[Page 59011]]
and 114 licenses. The May 2002 meeting revealed persistent differences
as to the scope of the regulations, as well as the details for creating
and delivering databases of reports of use.
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\2\ In sharp contrast, the requirements for submitting a notice
of intention to use the statutory licenses drew few public comments
or criticisms and the Copyright Office had little trouble adopting
regulations. See 69 FR at 11526.
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Subsequent to the May 10, 2002, meeting, the Copyright Office
announced transitional requirements for creating reports of use because
it had become clear that many services availing themselves of the
statutory licenses were not keeping track of any of the sound
recordings they were performing. See 67 FR 59573 (September 23, 2002).
The transitional provisions were replaced by the Interim Regulations,
announced almost two years later, where the Copyright Office prescribed
the requirements for filing a notice of intention to use the statutory
licenses, and the categories of data that comprised a report of use of
a sound recording. 69 FR 11515 (March 11, 2004). The Office also made
another important decision in the Interim Regulations; namely, the
frequency of reporting reports of use. Although the Office announced
that year-round census reporting of use of sound recordings would
likely be the standard in the future, as a transitional measure, it
``determined that, at this stage, it is best to require periodic
reporting of sound recording performances.'' 69 FR at 11526. Reports of
use would be required for two periods of seven consecutive days during
each calendar quarter of the year. The first reporting period began on
April 1, 2004, meaning that, since that time, services using the
section 112 and 114 licenses have been required to create reports of
use in anticipation of regulations prescribing the format in which the
reports are to be delivered to copyright owners and the details of
making the deliveries.
With the first part of the regulations governing recordkeeping
completed (data required and frequency of reporting), the Copyright
Office turned to the task of establishing format and delivery
requirements. However, on November 30, 2004, the President signed into
law the Copyright Royalty and Distribution Reform Act of 2004 (``Reform
Act''), Public Law 108-419, 118 Stat. 2341. The Reform Act, among other
things, transferred the authority for prescribing notice and
recordkeeping regulations for sections 112 and 114 from the Librarian
and the Copyright Office to the Copyright Royalty Judges and the Board.
The Reform Act went into effect on May 31, 2005, after the Office
published a Notice of Proposed Rulemaking on April 27, 2005 proposing
regulations for the format and delivery of reports of use. 70 FR 21704
(April 27, 2005). The Office received public comments on the proposals
and delivered them to the Board.
When the May 31, 2005 effective date of the Reform Act arrived,
full-time appointments of the Copyright Royalty Judges had not been
made. The Librarian appointed an Interim Chief Copyright Royalty Judge
who, on July 27, 2005, published a Supplemental Request for Comments
(``Supplemental Request'') in the Federal Register. 70 FR 43364 (July
27, 2005). The Supplemental Request posed a series of questions
regarding format and delivery requirements since the comments submitted
in response to the Office's April 27 notice made it clear that there
were deep divisions of opinion. Now that the Board has full-time
Judges, and the issues involved in format and delivery are fully
presented, it is time to complete the Interim Regulations.
II. This Proceeding
As described above, the regulatory process to create recordkeeping
regulations has been a lengthy one. The Librarian of Congress and the
Copyright Office have invested considerable time in fashioning
regulations up to this point and, absent controversies on the
requirements for format and delivery of reports of use, would have
completed this rulemaking. Even though jurisdiction for adopting notice
and recordkeeping rules now lies solely with the Board, it is not the
Board's intention in today's Interim Regulations to revisit the rules
the Librarian and Office adopted. Rather, the Board will monitor the
operation of these regulations, as well as the ones adopted today, and
will request public comment in the future as to the need for amendment
or improvement prior to adopting final regulations. The goal of today's
Interim Regulations is to establish format and delivery requirements so
that royalty payments to copyright owners pursuant to the section 112
and 114 licenses may be made from April 1, 2004 forward based upon
actual data of the sound recordings transmitted by digital audio
services. The completion of the recordkeeping Interim Regulations means
that all services must deliver reports of use from the period beginning
April 1, 2004, and SoundExchange must process these reports of use and
distribute the royalties.
Because it is the Board, and not the Copyright Office, that is
promulgating today's Interim Regulations, it is necessary to place them
in Chapter III of title 37 of the Code of Federal Regulations. As noted
above, authority for notice and recordkeeping regulations now rests
solely with the Board. In the interest of placing all regulations
related to notice and recordkeeping under the section 112 and 114
licenses within the same part number in the CFR, the Board is also
today replicating the notice and recordkeeping provisions currently
located in part 270 of title 37 \3\ in part 370 of the Board's
regulations. It is anticipated that the Copyright Office will repeal in
the near future part 270 of its regulations.
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\3\ Chapter II of title 37 contains the regulations of the
Copyright Office.
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III. Format and Delivery
A. Format
Establishing the format in which a report of use is delivered to
copyright owners requires consideration of competing interests. On the
one hand, it is evident that digital audio services maintain data that
include the content of a report of use in a wide variety of formats
dependent on their resources and individual choices.\4\ On the other
hand, given the considerable volume of data to be reported, data must
be delivered to copyright owners in a form that can be processed and
used to make royalty payments. Sections 112(e)(4) and 114(f)(4)(A) both
contain the word ``reasonable'' with respect to the adoption of
regulations, and the commenters have expressed different points of view
as to the meaning of ``reasonable.'' Digital audio services generally
are of the view that ``reasonable'' means the least costly to them,
while copyright owners, represented principally by SoundExchange,\5\
opine that ``reasonable'' means the submission of data most compatible
to their use. Mindful of these cost and efficiency concerns raised by
both the services and the copyright owners, the Board identifies a
workable minimum or baseline for data reporting that satisfies the
required reporting responsibilities of the services without imposing
unreasonable processing burdens or obstacles on the copyright owners.
The Board is of the view that regulations that establish the baseline
requirements for formatting and delivering a report of use--i.e. that
satisfy the basic
[[Page 59012]]
requirements necessary to deliver data that can be used to make
payments collected under the statutory licenses--are reasonable as
contemplated by the statute. This conclusion is supported by noting
that copyright owners and services are always free to negotiate
different format and delivery requirements that suit their particular
needs and situations, and the Board is aware that such negotiations
have taken place. See, Comments of the Digital Media Association at 1
(August 26, 2005).
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\4\ The Board is also aware of the likelihood that a significant
number of services have chosen not to maintain any reports of use at
all, despite the March 11, 2004 Interim Regulation's requirement
that they do so beginning with the April 1, 2004 calendar quarter.
See 69 FR at 11526. The Board agrees with the Copyright Office's
view that the law does not allow any services to avoid altogether
reporting their use of sound recordings under the statutory
licenses, id. at 11521, format considerations notwithstanding.
\5\ Royalty Logic, Inc., which seeks to be an alternative
distribution agent to SoundExchange, has also filed comments
throughout this proceeding.
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Before addressing specifics regarding the format of a report of
use, the Board expresses the following. First, the Board rejects
permitting the submission of paper or hard copy reports of use. See,
e.g., Comments of Harvard Radio Broadcasting Co. at 3-4 (May 27, 2005).
While perhaps an inexpensive way for certain services to provide
reports of use, hard copies create considerable expense for copyright
owners to interpret and process thereby rendering them of little value.
Second, the Board rejects the argument that the format regulations
should be crafted in such a way as to allow a wide array of different
electronic formats. This position, advocated principally by radio
broadcasters,\6\ fails to account for the Board's stated goal in
today's Interim Regulations which is to establish baseline format
requirements. Further, the Board is highly skeptical that
SoundExchange's data processing system is compatible with a variety of
formats and radio broadcasters have failed to provide evidence--other
than argument of counsel--that demonstrates any likelihood of
compatibility.
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\6\ Comments of the National Religious Broadcasters Music
License Committee and Salem Communications Corp. (May 27, 2005);
Joint Comments of Radio Broadcasters (August 26, 2005).
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Finally, the Board concludes that there is not currently available
a recognized standard data processing format that can be adopted in
lieu of the system proposed by SoundExchange. Radio broadcasters
mention software owned by companies such as BDS and Mediabase but
provide no details as to its cost, operation or availability. Joint
Comments of Radio Broadcasters at 17 (August 26, 2005). Spacialaudio
offers that its product, SAM Broadcaster, is capable of generating
reports of use for SoundExchange. Comments of Spacialaudio.com at 2
(August 31, 2005). However, review of the product Web site reveals that
SAM Broadcaster is a ``professional DJ system with the ability to
stream audio over the internet to listeners across the world'' and is
not by itself a data processing system. See, http://www.spacialaudio.com/products/sambroadcaster/.
The Board cannot adopt
format requirements devoid of any nexus to a proven data processing
system in the hopes that one or more will eventually become available.
To do so would frustrate the already long overdue delivery of reports
of use and further deny copyright owners their ability to claim
royalties under the section 112 and 114 statutory licenses.
1. Spreadsheets
The April 27, 2005 NPRM proposed that commercially available
spreadsheets, such as Microsoft's Excel and Corel's Quattro Pro, could
be used to facilitate the creation of reports of use, provided that
they are converted to ASCII (American Standard Code for Information
Exchange) format prior to delivery. SoundExchange was directed to
provide a template on its Web site for the Microsoft and Corel products
along with instructions for conversion. Technical support in creating
and delivering spreadsheet reports of use was the responsibility of
each service reporting data. 70 FR at 21706.
Harvard Radio Broadcasting Company (``Harvard'') and Collegiate
Broadcasters, Inc. (``CBI'') argue that the use of spreadsheets is
unreasonable because a computer must be purchased, along with the
Microsoft or Corel software, to create spreadsheets. Comments of
Harvard at 9-10; Comments of CBI at 10-11.\7\ They also argue that the
thousands of hours required to create reports of use in spreadsheet
format cannot be justified, particularly given the limited resources of
educational radio stations. Id. The Board is not persuaded by these
arguments. First, the Board questions whether educational stations that
exercise the option of spreadsheets must purchase a computer devoted
solely to that purpose, and cannot use an existing computer or obtain a
used one. Even if a new desktop computer is required, the Board finds
it disingenuous to argue that purchasing a computer at an educational
institution is unreasonable, particularly where it is standard practice
for many colleges and universities across the United States to require
that each student possess a computer as part of their enrollment.
Likewise, the record does not support the premise that completing
reports of use in spreadsheet format will require thousands of hours.
At present, reports of use need only be compiled for two seven
consecutive day periods per calendar quarter, not year round as
submitted in Harvard's estimates.
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\7\ Radio broadcasters submit that it is unlikely that they will
avail themselves of the spreadsheet option and ``likely will seek an
automated solution that will enable them to generate electronic
ASCII files directly from their music scheduling programs.'' Joint
Comments of Radio Broadcasters at 14 (August 26, 2005).
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The Board is also not persuaded that conversion of spreadsheets
into ASCII format presents an unreasonable burden upon digital audio
services. SoundExchange, Inc. and Royalty Logic, Inc. demonstrate that
the conversion process using the Microsoft or Corel software is simple
and straightforward. See, Comments of SoundExchange, Inc. at 21 (August
26, 2005); Comments of Royalty Logic, Inc. at 2 (August 31, 2005).
SoundExchange has also developed with Microsoft a macro that
facilitates the spreadsheet conversion \8\ and is in the process of
developing a similar macro with Corel. SoundExchange is directed to
complete that negotiation with Corel and post the result on its Web
site. The Board remains of the view that each service using a
spreadsheet to prepare a report of use is responsible for any technical
expertise necessary to complete the task.
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\8\ Harvard admits that it is ``very impressed'' with the
Microsoft spreadsheet's ability to convert to ASCII, and estimates
no more than one hour per conversion. Comments of Harvard Radio
Broadcasting Company at 11 (August 26, 2005).
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2. Files With Headers
Three issues drew considerable public comment with respect to the
proposal for permitting data files to be submitted with headers.
Broadcasters objected to the first six lines of a file with headers
arguing that the information requested was already contained in either
the report of use itself or the notice of intention to obtain the
section 112 and 114 licenses, and therefore would unnecessarily
increase their labor costs. Joint Comments of Radio Broadcasters at 27-
28 (August 26, 2005); Comments of Collegiate Broadcasters, Inc. at 16
(August 31, 2005). There was also considerable debate over the order of
the date identification appearing in a file header, which also appears
in a file name. Services uniformly favored the standard year, month,
day (YYYYMMDD), while SoundExchange favored day, month, year (DDMMYYYY)
principally on the ground that its current software recognizes only
this convention. Comments of SoundExchange, Inc. at 24-25 (August 26,
2005). Finally, services argued that they should have their choice in
identifying the text indicator and field delimiter used in a data file
accompanying the header. See, e.g., Comments of Harvard Radio
Broadcasting Company at 19 (August 26, 2005); Comments of the National
[[Page 59013]]
Religious Broadcasters Music Licensing Committee and Salem
Communications Corp. at 1-2 (May 27, 2005).
The Board is not persuaded that the redundancy of information
sought in a file with headers is unduly burdensome. Services are not
required to provide their data files with headers, and thereby may
avoid any perceived burdens associated with supplying the data required
in the first six lines. Likewise, services objecting to the required
order of data to be provided in a file with headers may elect to
provide their data without headers.
The Board is persuaded that the date convention YYYYMMDD is the
most widely adopted and therefore is adopting it for files with headers
as well as file names. The Board is also allowing services to choose
the text indicator and field delimiter that they are using in a file
with headers, but is clarifying that the symbols chosen must be unique
and never found in the report's data content. It is the responsibility
of the services to comply with this requirement.
3. Files Without Headers
Services challenge two provisions of the April 27, 2005 NPRM's
proposals for files without headers. First, certain services submit
that text fields should accommodate both upper and lower case
characters. Comments of Harvard Radio Broadcasting Company at 22
(August 26, 2005); Joint Comments of Radio Broadcasters at 33 (August
26, 2005). Second, the services generally favor the use of
abbreviations within data fields. Harvard, recognizing that
abbreviations within the music industry are not standard and therefore
might present data interpretation difficulties, proposes that
SoundExchange be required to periodically publish its database so that
services can enter the database and use the identifiers that
SoundExchange assigns to specific bits of data (such as song title,
artist name, etc.). Comments of Harvard Radio Broadcasting Company at
24-28 (August 26, 2005). 3WK L.L.C. opposes accessing the SoundExchange
database believing the practice would be financially and physically
prohibitive to a small company like itself. Comments of 3WK L.L.C. at 3
(August 31, 2005).
The Board accepts the first proposal but not the second. Accepting
data in both upper and lower case characters is not an unusual
convention and SoundExchange can adjust its software to accommodate
both. The Board is not allowing, however, the use of abbreviations in
data fields. There are no accepted standards for abbreviating artists'
names, song titles, album titles, etc., thereby requiring data
processors to analyze each data component containing an abbreviation in
an effort to correctly identify it. This is likely to present
considerable delays in data processing, as well as raise costs. Reply
comments of SoundExchange, Inc. at 24 (September 16, 2005). Radio
broadcasters' argument that SoundExchange's software can solve
efficiency and cost problems through ``fuzzy matching'' is neither
convincing nor supported by evidence. The Board also does not believe
that Harvard's suggestion of a publicly provided database will, at
least at this time, solve the problem. Services already complain that
entering data for reports of use is too costly. Requiring them to
access a database of millions of sound recordings in an effort to
secure identifiers for the songs they have performed will likely add
considerably to their costs. See Comments of 3WK L.L.C. at 3 (August
31, 2005). As time passes, and reports of use continue to be provided,
it is possible that a metadata database may provide a solution to the
matter of abbreviations, as well as other issues presented in this
proceeding. The Board will continue to monitor the matter as part of
its continuing oversight of the regulations governing reports of use.
B. Delivery
The proposed rules set forth in the April 27, 2005 NPRM prescribe
that data contained in a report of use maybe delivered by File Transfer
Protocol (FTP), e-mail, CD-ROM, or floppy diskette to a single address
(SoundExchange). Services urge the Board to require that SoundExchange
establish a Web site for receipt of data, and Royalty Logic, Inc.
(``RLI'') requests that it receive all reports of use in addition to
SoundExchange.
SoundExchange vigorously objects to the expense that it would incur
to create and maintain a Web site, citing testimony of Shane Sleighter
whom SoundExchange offers as an expert in business software
development. Mr. Sleighter states that creation of a Web site that will
permit users to complete their reports of use via the site could cost
anywhere between $100,000 to $950,000, depending upon the functions
that it would perform. Comments of SoundExchange, Inc. at Tab A-7. Mr.
Sleighter estimates that a Web site designed solely to receive existing
reports of use would cost approximately $50,000, again depending upon
functionality. Id. at Tab A-8. The services urge the mandatory creation
of a SoundExchange Web site not because they are dissatisfied with the
other delivery methods offered in the proposed rules, nor that they are
altogether inadequate, but rather because they view a SoundExchange Web
site as an opportunity to shift the burden of organizing their data
files. Joint Comments of Radio Broadcasters at 21 (August 26, 2005);
Comments of Collegiate Broadcasters, Inc. at 13 (August 31, 2005);
Comments of Harvard Radio Broadcasting Company at 15 (August 26, 2005);
Comments of Radioio, Inc. at 5-7 (August 29, 2005). In keeping with the
Board's stated goal of adopting baseline requirements in these rules,
the Board is disinclined to add a fifth delivery method at this time.
The Board will continue to monitor the delivery process and will
explore the possibility and the need for a SoundExchange Web site prior
to adopting final regulations.
With respect to the matter of delivery of reports of use to RLI,
arguments are offered pro and con as to whether RLI has standing to
receive reports of use and broadcasters express concerns about the
costs associated with delivering reports of use to multiple entities.
The Board does not consider today's rulemaking the proper forum to
determine RLI's or other copyright owners groups' standing to receive
reports of use. As of today's publication of Interim Regulations, only
SoundExchange is a recognized receiving agent for royalties generated
under the section 112 and 114 licenses and, therefore, these
regulations provide for delivery of reports of use to SoundExchange.
However, during the period that these Interim Regulations are in effect
and absent any future adjustment to these regulations by the Board, if
other parties receive the same designation as ``collectives'' \9\, then
SoundExchange is required to forward copies of reports of use to all
other such ``collectives''.
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\9\ RLI is currently seeking such designation in the Board's
section 112 and 114 rate adjustment proceeding for subscription,
nonsubscription and new services. Docket No. 2005-1 CRB DTRA.
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List of Subjects in 37 CFR Part 370
Copyright, Sound recordings.
Interim Regulation
0
For the reasons set forth in the preamble, Chapter III of Title 37 of
the Code of Federal Regulations is amended by adding new Subchapter D
to read as follows:
[[Page 59014]]
Subchapter D--Notice and Recordkeeping Requirements for Statutory
Licenses
PART 370--NOTICE AND RECORDKEEPING REQUIREMENTS FOR STATUTORY
LICENSES
Sec.
370.1 Notice of use of sound recordings under statutory license.
370.2 Reports of use of sound recordings under statutory license for
preexisting subscription services.
370.3 Reports of use of sound recordings under statutory license for
nonsubscription transmission services, preexisting satellite digital
audio radio services, new subscription services and business
establishment services.
370.4 Reports of use of sound recordings under statutory license
prior to April 1, 2004.
370.5 Designated collection and distribution organizations for
reports of use of sound recordings under statutory license.
Authority: 17 U.S.C. 112(e)(4), 114(f)(4)(A).
Sec. 370.1 Notice of use of sound recordings under statutory license.
(a) General. This section prescribes rules under which copyright
owners shall receive notice of use of their sound recordings when used
under either section 112(e) or 114(d)(2) of title 17, United States
Code, or both.
(b) Definitions. (1) A Notice of Use of Sound Recordings under
Statutory License is a written notice to sound recording copyright
owners of the use of their works under section 112(e) or 114(d)(2) of
title 17, United States Code, or both, and is required under this
section to be filed by a Service in the Copyright Office.
(2) A Service is an entity engaged in either the digital
transmission of sound recordings pursuant to section 114(d)(2) of title
17 of the United States Code or making ephemeral phonorecords of sound
recordings pursuant to section 112(e) of title 17 of the United States
Code or both. For purposes of this section, the definition of a Service
includes an entity that transmits an AM/FM broadcast signal over a
digital communications network such as the Internet, regardless of
whether the transmission is made by the broadcaster that originates the
AM/FM signal or by a third party, provided that such transmission meets
the applicable requirements of the statutory license set forth in 17
U.S.C. 114(d)(2). A Service may be further characterized as either a
preexisting subscription service, preexisting satellite digital audio
radio service, nonsubscription transmission service, new subscription
service, business establishment service or a combination of those:
(i) A preexisting subscription service is a service that performs
sound recordings by means of noninteractive audio-only subscription
digital audio transmissions, and was in existence and making such
transmissions to the public for a fee on or before July 31, 1998, and
may include a limited number of sample channels representative of the
subscription service that are made available on a nonsubscription basis
in order to promote the subscription service.
(ii) A preexisting satellite digital audio radio service is a
subscription satellite digital audio radio service provided pursuant to
a satellite digital audio radio service license issued by the Federal
Communications Commission on or before July 31, 1998, and any renewal
of such license to the extent of the scope of the original license, and
may include a limited number of sample channels representative of the
subscription service that are made available on a nonsubscription basis
in order to promote the subscription service.
(iii) A nonsubscription transmission service is a service that
makes noninteractive nonsubscription digital audio transmission that
are not exempt under section 114(d)(1) of title 17 of the United States
Code and are made as part of a service that provides audio programming
consisting, in whole or in part, of performances of sound recordings,
including transmissions of broadcast transmissions, if the primary
purpose of the service is to provide to the public such audio or other
entertainment programming, and the primary purpose of the service is
not to sell, advertise, or promote particular products or services
other than sound recordings, live concerts, or other music-related
events.
(iv) A new subscription service is a service that performs sound
recordings by means of noninteractive subscription digital audio
transmissions and that is not a preexisting subscription service or a
preexisting satellite digital audio radio service.
(v) A business establishment service is a service that makes
ephemeral phonorecords of sound recordings pursuant to section 112(e)
of title 17 of the United States Code and is exempt under section
114(d)(1)(C)(iv) of title 17 of the United States Code.
(c) Forms and content. A Notice of Use of Sound Recordings Under
Statutory License shall be prepared on a form that may be obtained from
the Copyright Office Web site or from the Licensing Division, and shall
include the following information:
(1) The full legal name of the Service that is either commencing
digital transmissions of sound recordings or making ephemeral
phonorecords of sound recordings under statutory license or doing both.
(2) The full address, including a specific number and street name
or rural route, of the place of business of the Service. A post office
box or similar designation will not be sufficient except where it is
the only address that can be used in that geographic location.
(3) The telephone number and facsimile number of the Service.
(4) Information on how to gain access to the online Web site or
homepage of the Service, or where information may be posted under this
section concerning the use of sound recordings under statutory license.
(5) Identification of each license under which the Service intends
to operate, including identification of each of the following
categories under which the Service will be making digital transmissions
of sound recordings: preexisting subscription service, preexisting
satellite digital audio radio service, nonsubscription transmission
service, new subscription service or business establishment service.
(6) The date or expected date of the initial digital transmission
of a sound recording to be made under the section 114 statutory license
and/or the date or the expected date of the initial use of the section
112(e) license for the purpose of making ephemeral phonorecords of the
sound recordings.
(7) Identification of any amendments required by paragraph (f) of
this section.
(d) Signature. The Notice shall include the signature of the
appropriate officer or representative of the Service that is either
transmitting the sound recordings or making ephemeral phonorecords of
sound recordings under statutory license or doing both. The signature
shall be accompanied by the printed or typewritten name and the title
of the person signing the Notice and by the date of the signature.
(e) Filing notices; fees. The original and three copies shall be
filed with the Licensing Division of the Copyright Office and shall be
accompanied by the filing fee set forth in Sec. 201.3(c) of this
title. Notices shall be placed in the public records of the Licensing
Division. The address of the Licensing Division is: Library of
Congress, Copyright Office, Licensing Division, 101 Independence
Avenue, SE., Washington, DC 20557-6400.
(1) A Service that, prior to April 12, 2004, has already commenced
making digital transmissions of sound recordings pursuant to section
114(d)(2)
[[Page 59015]]
of title 17 of the United States Code or making ephemeral phonorecords
of sound recordings pursuant to section 112(e) of title 17 of the
United States Code, or both, and that has already filed an Initial
Notice of Digital Transmission of Sound Recordings Under Statutory
License, and that intends to continue to make digital transmissions or
ephemeral phonorecords following July 1, 2004, shall file a Notice of
Use of Sound Recordings under Statutory License with the Licensing
Division of the Copyright Office no later than July 1, 2004.
(2) A Service that, on or after July 1, 2004, commences making
digital transmissions and ephemeral phonorecords of sound recordings
under statutory license shall file a Notice of Use of Sound Recordings
under Statutory License with the Licensing Division of the Copyright
Office prior to the making of the first ephemeral phonorecord of the
sound recording and prior to the first digital transmission of the
sound recording.
(3) A Service that, on or after July 1, 2004, commences making only
ephemeral phonorecords of sound recordings, shall file a Notice of Use
of Sound Recordings under Statutory License with the Licensing Division
of the Copyright Office prior to the making of the first ephemeral
phonorecord of a sound recording under the statutory license.
(f) Amendment. A Service shall file a new Notice of Use of Sound
Recordings under Statutory License within 45 days after any of the
information contained in the Notice on file has changed, and shall
indicate in the space provided by the Copyright Office that the Notice
is an amended filing. The Licensing Division shall retain copies of all
prior Notices filed by the Service.
Sec. 370.2 Reports of use of sound recordings under statutory license
for preexisting subscription services.
(a) General. This section prescribes the rules for the maintenance
and delivery of reports of use for sound recordings under section
112(e) or section 114(d)(2) of title 17 of the United States Code, or
both, by preexisting subscription services.
(b) Definitions. (1) A Collective is a collection and distribution
organization that is designated under the statutory license by decision
of a Copyright Arbitration Royalty Panel (CARP) under section
114(f)(1)(B) or section 114(f)(1)(C)(ii), or by an order of the
Librarian pursuant to 17 U.S.C. 802(f), prior to the effective date of
the Copyright Royalty and Distribution Reform Act of 2004, or by
determination of the Copyright Royalty Judges under section
114(f)(1)(B) or section 114(f)(1)C)(ii).
(2) A Report of Use of Sound Recordings Under Statutory License is
the report of use required under this section to be provided by a
Service transmitting sound recordings and making ephemeral phonorecords
therewith under statutory licenses.
(3) A Service is a preexisting subscription service, as defined in
17 U.S.C. 114(j)(11).
(c) Service. Reports of Use shall be served upon Collectives that
are identified in the records of the Licensing Division of the
Copyright Office as having been designated under the statutory license
by decision of a Copyright Arbitration Royalty Panel (CARP) under
section 114(f)(1)(B) or section 114(f)(1)(C)(ii), or by an order of the
Librarian pursuant to 17 U.S.C. 802(f), prior to the effective date of
the Copyright Royalty and Distribution Reform Act of 2004, or by
determination of the Copyright Royalty Judges under section
114(f)(1)(B) or section 114(f)(1)C)(ii). Reports of Use shall be
served, by certified or registered mail, or by other means if agreed
upon by the respective preexisting subscription service and Collective,
on or before the forty-fifth day after the close of each month.
(d) Posting. In the event that no Collective is designated under
the statutory license, or if all designated Collectives have terminated
collection and distribution operations, a preexisting subscription
service transmitting sound recordings under statutory license shall
post and make available online its Reports of Use. Preexisting
subscription services shall post their Reports of Use online on or
before the forty-fifth day after the close of each month, and make them
available to all sound recording copyright owners for a period of 90
days. Preexisting subscription services may require use of passwords
for access to posted Reports of Use, but must make passwords available
in a timely manner and free of charge or other restrictions.
Preexisting subscription services may predicate provision of a password
upon:
(1) Information relating to identity, location and status as a
sound recording copyright owner; and
(2) A ``click-wrap'' agreement not to use information in the Report
of Use for purposes other than royalty collection, royalty
distribution, and determining compliance with statutory license
requirements, without the express consent of the preexisting
subscription service providing the Report of Use.
(e) Content. A ``Report of Use of Sound Recordings under Statutory
License'' shall be identified as such by prominent caption or heading,
and shall include a preexisting subscription service's ``Intended
Playlists'' for each channel and each day of the reported month. The
``Intended Playlists'' shall include a consecutive listing of every
recording scheduled to be transmitted, and shall contain the following
information in the following order:
(1) The name of the preexisting subscription service or entity;
(2) The channel;
(3) The sound recording title;
(4) The featured recording artist, group, or orchestra;
(5) The retail album title (or, in the case of compilation albums
created for commercial purposes, the name of the retail album
identified by the preexisting subscription service for purchase of the
sound recording);
(6) The marketing label of the commercially available album or
other product on which the sound recording is found;
(7) The catalog number;
(8) The International Standard Recording Code (ISRC) embedded in
the sound recording, where available and feasible;
(9) Where available, the copyright owner information provided in
the copyright notice on the retail album or other product (e.g.,
following the symbol (P), that is the letter P in a circle) or, in the
case of compilation albums created for commercial purposes, in the
copyright notice for the individual sound recording;
(10) The date of transmission; and
(11) The time of transmission.
(f) Signature. Reports of Use shall include a signed statement by
the appropriate officer or representative of the preexisting
subscription service attesting, under penalty of perjury, that the
information contained in the Report is believed to be accurate and is
maintained by the preexisting subscription service in its ordinary
course of business. The signature shall be accompanied by the printed
or typewritten name and title of the person signing the Report, and by
the date of signature.
(g) Format. Reports of Use should be provided on a standard
machine-readable medium, such as diskette, optical disc, or magneto-
optical disc, and should conform as closely as possible to the
following specifications:
(1) ASCII delimited format, using pipe characters as delimiter,
with no headers or footers;
(2) Carats should surround strings;
(3) No carats should surround dates and numbers;
[[Page 59016]]
(4) Dates should be indicated by: MM/DD/YYYY;
(5) Times should be based on a 24-hour clock: HH:MM:SS;
(6) A carriage return should be at the end of each line; and
(7) All data for one record should be on a single line.
(h) Confidentiality. Copyright owners, their agents and Collectives
shall not disseminate information in the Reports of Use to any persons
not entitled to it, nor utilize the information for purposes other than
royalty collection and distribution, and determining compliance with
statutory license requirements, without express consent of the
preexisting subscription service providing the Report of Use.
(i) Documentation. All compulsory licensees shall, for a period of
at least three years from the date of service or posting of the Report
of Use, keep and retain a copy of the Report of Use. For reporting
periods from February 1, 1996, through August 31, 1998, the preexisting
subscription service shall serve upon all designated Collectives and
retain for a period of three years from the date of transmission
reports of use indicating which sound recordings were performed and the
number of times each recording was performed, but is not required to
produce full Reports of Use or Intended Playlists for those periods.
Sec. 370.3 Reports of use of sound recordings under statutory license
for nonsubscription transmission services, preexisting satellite
digital audio radio services, new subscription services and business
establishment services.
(a) General. This section prescribes rules for the maintenance and
delivery of reports of use of sound recordings under section 112(e) or
section 114(d)(2) of title 17 of the United States Code, or both, by
nonsubscription transmission services, preexisting satellite digital
audio radio services, new subscription services, and business
establishment services.
(b) Definitions. (1) Aggregate Tuning Hours are the total hours of
programming that a nonsubscription transmission service, preexisting
satellite digital audio radio service, new subscription service or
business establishment service has transmitted during the reporting
period identified in paragraph (c)(3) of this section to all listeners
within the United States over the relevant channels or stations, and
from any archived programs, that provide audio programming consisting,
in whole or in part, of eligible nonsubscription service, preexisting
satellite digital audio radio service, new subscription service or
business establishment service transmissions, less the actual running
time of any sound recordings for which the service has obtained direct
licenses apart from 17 U.S.C. 114(d)(2) or which do not require a
license under United States copyright law. For example, if a
nonsubscription transmission service transmitted one hour of
programming to 10 simultaneous listeners, the nonsubscription
transmission service's Aggregate Tuning Hours would equal 10. If 3
minutes of that hour consisted of transmission of a directly licensed
recording, the nonsubscription transmission service's Aggregate Tuning
Hours would equal 9 hours and 30 minutes. If one listener listened to
the transmission of a nonsubscription transmission service for 10 hours
(and none of the recordings transmitted during that time was directly
licensed), the nonsubscription transmission service's Aggregate Tuning
Hours would equal 10.
(2) An AM/FM Webcast is a transmission made by an entity that
transmits an AM/FM broadcast signal over a digital communications
network such as the Internet, regardless of whether the transmission is
made by the broadcaster that originates the AM/FM signal or by a third
party, provided that such transmission meets the applicable
requirements of the statutory license set forth in 17 U.S.C. 114(d)(2).
(3) A Collective is a collection and distribution organization that
is designated under one or both of the statutory licenses by decision
of a Copyright Arbitration Royalty Panel under section 112(e)(4),
section 112(e)(6), section 114(f)(1)(B), section 114(f)(1)(C)(ii),
section 114(f)(2)(B), or section 114(f)(2)(C)(ii), or by an order of
the Librarian of Congress pursuant to 17 U.S.C. 802(f), prior to the
effective date of the Copyright Royalty and Distribution Reform Act of
2004, or by determination of the Copyright Royalty Judges under section
112(e)(4), section 112(e)(6), section 114(f)(1)(B), section
114(f)(1)(C)(ii), section 114(f)(2)(B), or section 114(f)(2)(C)(ii).
(4) A new subscription service is defined in Sec. 370.1(b)(2)(iv).
(5) A nonsubscription transmission service is defined in Sec.
370.1(b)(2)(iii).
(6) A preexisting satellite digital audio radio service is defined
in Sec. 370.1(b)(2)(ii).
(7) A business establishment service is defined in Sec.
370.1(b)(2)(v).
(8) A performance is each instance in which any portion of a sound
recording is publicly performed to a Listener by means of a digital
audio transmission or retransmission (e.g., the delivery of any portion
of a single track from a compact disc to one Listener) but excluding
the following:
(i) A performance of a sound recording that does not require a
license (e.g., the sound recording is not copyrighted);
(ii) A performance of a sound recording for which the service has
previously obtained a license from the Copyright Owner of such sound
recording; and
(iii) An incidental performance that both:
(A) Makes no more than incidental use of sound recordings
including, but not limited to, brief musical transitions in and out of
commercials or program segments, brief performances during news, talk
and sports programming, brief background performances during disk
jockey announcements, brief performances during commercials of sixty
seconds or less in duration, or brief performances during sporting or
other public events and
(B) Other than ambient music that is background at a public event,
does not contain an entire sound recording and does not feature a
particular sound recording of more than thirty seconds (as in the case
of a sound recording used as a theme song).
(9) Play frequency is the number of times a sound recording is
publicly performed by a Service during the relevant period, without
respect to the number of listeners receiving the sound recording. If a
particular sound recording is transmitted to listeners on a particular
channel or program only once during the two-week reporting period, then
the play frequency is one. If the sound recording is transmitted 10
times during the two-week reporting period, then the play frequency is
10.
(10) A Report of Use is a report required under this section to be
provided by a nonsubscription transmission service and new subscription
service that is transmitting sound recordings pursuant to the statutory
license set forth in section 114(d)(2) of title 17 of the United States
Code or making ephemeral phonorecords of sound recordings pursuant to
the statutory license set forth in section 112(e) of title 17 of the
United States Code, or both.
(c) Report of Use-- (1) Separate reports not required. A
nonsubscription transmission service, preexisting satellite digital
audio radio service or a new subscription service that transmits sound
recordings pursuant to the statutory license set forth in section
114(d)(2) of title 17 of the United States Code and makes ephemeral
phonorecords of sound recordings
[[Page 59017]]
pursuant to the statutory license set forth in section 112(e) of title
17 of the United States Code need not maintain a separate Report of Use
for each statutory license during the relevant reporting periods.
(2) Content. For a nonsubscription transmission service,
preexisting satellite digital audio radio service, new subscription
service or business establishment service that transmits sound
recordings pursuant to the statutory license set forth in section
114(d)(2) of title 17 of the United States Code, or the statutory
license set forth in section 112(e) of title 17 of the United States
Code, or both, each Report of Use shall contain the following
information, in the following order, for each sound recording
transmitted during the reporting periods identified in paragraph (c)(3)
of this section:
(i) The name of the nonsubscription transmission service,
preexisting satellite digital audio radio service, new subscription
service or business establishment service making the transmissions,
including the name of the entity filing the Report of Use, if
different;
(ii) The category transmission code for the category of
transmission operated by the nonsubscription transmission service,
preexisting satellite digital audio radio service, new subscription
service or business establishment service:
(A) For eligible nonsubscription transmissions other than broadcast
simulcasts and transmissions of non-music programming;
(B) For eligible nonsubscription transmissions of broadcast
simulcast programming not reasonably classified as news, talk, sports
or business programming;
(C) For eligible nonsubscription transmissions of non-music
programming reasonably classified as news, talk, sports or business
programming;
(D) For eligible nonsubscription transmissions by a non-Corporation
for Public Broadcasting noncommercial broadcaster making transmissions
covered by Sec. Sec. 261.3(a)(2)(i) and (ii) of this title;
(E) For eligible nonsubscription transmissions by a non-Corporation
for Public Broadcasting noncommercial broadcaster making transmissions
covered by Sec. 261.3(a)(2)(iii) of this title;
(F) For eligible nonsubscription transmissions by a small webcaster
operating under an agreement published in the Federal Register pursuant
to the Small Webcaster Settlement Act;
(G) For eligible nonsubscription transmissions by a noncommercial
broadcaster operating under an agreement published in the Federal
Register pursuant to the Small Webcaster Settlement Act;
(H) For transmissions other than broadcast simulcasts and
transmissions of non-music programming made by an eligible new
subscription service;
(I) For transmissions of broadcast simulcast programming not
reasonably classified as news, talk, sports or business programming
made by an eligible new subscription service;
(J) For transmissions of non-music programming reasonably
classified as news, talk, sports or business programming made by an
eligible new subscription service; and
(K) For eligible transmissions by a business establishment service
making ephemeral recordings;
(iii) The featured artist;
(iv) The sound recording title;
(v) The International Standard Recording Code (ISRC) or,
alternatively to the ISRC, the
(A) Album title; and
(B) Marketing label;
(vi) The actual total performances of the sound recording during
the reporting period or, alternatively, the
(A) Aggregate Tuning Hours;
(B) Channel or program name; and
(C) Play frequency.
(3) Reporting period. A Report of Use shall be prepared for a two-
week period (two periods of 7 consecutive days) for each calendar
quarter of the year. The two weeks need not be consecutive, but both
weeks must be completely within the calendar quarter.
(4) Signature. Reports of Use shall include a signed statement by
the appropriate officer or representative of the service attesting,
under penalty of perjury, that the information contained in the Report
is believed to be accurate and is maintained by the service in its
ordinary course of business. The signature shall be accompanied by the
printed or typewritten name and the title of the person signing the
Report, and by the date of the signature.
(5) Confidentiality. Copyright owners, their agents and Collectives
shall not disseminate information in the Reports of Use to any persons
not entitled to it, nor utilize the information for purposes other than
royalty collection and distribution, without consent of the service
providing the Report of Use.
(6) Documentation. A Service shall, for a period of at least three
years from the date of service or posting of a Report of Use, keep and
retain a copy of the Report of Use.
(d) Format and delivery--(1) Electronic format only. Reports of use
must be maintained and delivered in electronic format only, as
prescribed in paragraphs (d)(2) through (8) of this section. A hard
copy report of use is not permissible.
(2) ASCII text file delivery; facilitation by provision of
spreadsheet templates. All report of use data files must be delivered
in ASCII format. However, to facilitate such delivery, SoundExchange
shall post and maintain on its Internet Web site a template for
creating a report of use using Microsoft's Excel spreadsheet and
Corel's Quattro Pro spreadsheet and instruction on how to convert such
spreadsheets to ASCII text files that conform to the format
specifications set forth below. Further, technical support and cost
associated with the use of spreadsheets is the responsibility of the
service submitting the report of use.
(3) Delivery mechanism. The data contained in a report of use may
be delivered by File Transfer Protocol (FTP), e-mail, CD-ROM, or floppy
diskette according to the following specifications:
(i) A service delivering a report of use via FTP must obtain a
username, password and delivery instructions from SoundExchange.
SoundExchange shall, by no later than December 5, 2006, post on a
publicly available portion of its Web site instructions for applying
for a username, password and delivery instructions. SoundExchange shall
have 15 days from date of request to respond with a username, password
and delivery instructions.
(ii) A service delivering a report of use via e-mail shall append
the report as an attachment to the e-mail. The main body of the e-mail
shall identify:
(A) The full name and address of the service;
(B) The contact person's name, telephone number and e-mail address;
(C) The start and end date of the reporting period;
(D) The number of rows in the data file. If the report of use is a
file using headers, counting of the rows should begin with row 15. If
the report of use is a file without headers, counting of the rows
should begin with row 1; and
(E) The name of the file attached.
(iii) A service delivering a report of use via CD-ROM must compress
the reporting data to fit onto a single CD-ROM per reporting period.
Each CD-ROM shall be submitted with a cover letter identifying:
(A) The full name and address of the service;
(B) The contact person's name, telephone number and e-mail address;
(C) The start and end date of the reporting period;
[[Page 59018]]
(D) The number of rows in the data file. If the report of use is a
file using headers, counting of the rows should begin with row 15. If
the report of use is a file without headers, counting of the rows
should begin with row 1; and
(E) The name of the file attached.
(iv) A service delivering a report of use via floppy diskette must
compress the reporting data to fit onto a single floppy diskette per
reporting period. Each floppy diskette must measure 3.5 inches in
diameter and be formatted using MS/DOS. Each floppy diskette shall be
submitted with a cover letter identifying:
(A) The full name and address of the service;
(B) The contact person's name, telephone number and e-mail address;
(C) The start and end date of the reporting period;
(D) The number of rows in the data file. If the report of use is a
file using headers, counting of the rows should begin with row 15. If
the report of use is a file without headers, the counting of the rows
should begin with row 1; and
(E) The name of the file attached.
(4) Delivery address. Reports of use shall be delivered to
SoundExchange at the following address: SoundExchange, Inc., 1330
Connecticut Avenue, NW., 330, Washington, DC 20036; (Phone)
(202) 828-0120; (Facsimile) (202) 833-2141; (E-mail)
info@soundexchange.com. SoundExchange shall forward electronic copies
of these reports of use to all other collectives defined in this
section.
(5) File naming. Each data file contained in a report of use must
be given a name by the service followed by the start and end date of
the reporting period. The start and end date must be separated by a
dash and in the format of day, month and year (YYYYMMDD). Each file
name must end with the file type extension of ``.txt''. (Example:
AcmeMusicCo20050101-20050331.txt).
(6) File type and compression. (i) All data files must be in ASCII
format.
(ii) A report of use must be compressed in one of the following
zipped formats:
(A) .zip--generated using utilities such as WinZip and/or UNIX zip
command;
(B) .Z--generated using UNIX compress command; or
(C) .gz--generated using UNIX gzip command.
Zipped files shall be named in the same fashion as described in
paragraph (d)(5) of this section, except that such zipped files shall
use the applicable file extension compression name described in this
paragraph (d)(6).
(7) Files with headers. (i) If a service elects to submit files
with headers, the following elements, in order, must occupy the first
14 rows of a report of use:
(A) Name of service;
(B) Name of contact person;
(C) Street address of the service;
(D) City, state and zip code of the service;
(E) Telephone number of the contact person;
(F) E-mail address of the contact person;
(G) Start of the reporting period (YYYYMMDD);
(H) End of the reporting period (YYYYMMDD);
(I) Report generation date (YYYYMMDD);
(J) Number of rows in data file, beginning with 15th row;
(K) Text indicator character;
(L) Field delimiter character;
(M) Blank line; and
(N) Report headers (Featured Artist, Sound Recording Title, etc.).
(ii) Each of the rows described in paragraphs (d)(7)(i)(A) through
(F) of this section must not exceed 255 alphanumeric characters. Each
of the rows described in paragraphs (d)(7)(i)(G) through (I) of this
section should not exceed eight alphanumeric characters.
(iii) Data text fields, as required by paragraph (c) of this
section, begin on row 15 of a report of use with headers. A carriage
return must be at the end of each row thereafter. Abbreviations within
data fields are not permitted.
(iv) The text indicator character must be unique and must never be
found in the report's data content.
(v) The field delimiter character must be unique and must never be
found in the report's data content. Delimiters must be used even when
certain elements are not being reported; in such case, the service must
denote the blank data field with a delimiter in the order in which it
would have appeared.
(8) Files without headers. If a service elects to submit files
without headers, the following format requirements must be met:
(i) ASCII delimited format, using pipe ([verbarrm]) characters as
delimiters, with no headers or footers;
(ii) Carats ([and]) should surround strings;
(iii) No carats ([and]) should surround dates and numbers;
(iv) A carriage return must be at the end of each line;
(v) All data for one record must be on a single line; and
(vi) Abbreviations within data fields are not permitted.
Sec. 370.4 Reports of use of sound recordings under statutory license
prior to April 1, 2004.
(a) General. This section prescribes the rules which govern reports
of use of sound recordings by nonsubscription transmission services,
preexisting satellite digital audio radio services, new subscription
services, and business establishment services under section 112(e) or
section 114(d)(2) of title 17 of the United States Code, or both, for
the period from October 28, 1998, through March 31, 2004.
(b) Reports of use. Reports of use filed by preexisting
subscription services for transmissions made under 17 U.S.C. 114(f)
pursuant to Sec. 370.2 for use of sound recordings under section
112(e) or section 114(d)(2) of title 17 of the United States Code, or
both, for the period October 28, 1998, through March 31, 2004, shall
serve as the reports of use for nonsubscription transmission services,
preexisting satellite digital audio radio services, new subscription
services, and business establishment services for their use of sound
recordings under section 112(e) or section 114(d)(2) of title 17 of the
United States Code, or both, for the period from October 28, 1998,
through March 31, 2004.
(c) Royalty Logic Inc. If, in accordance with Sec. 261.4(c) of
this title, any Copyright Owners or Performers have provided timely
notice to SoundExchange of an election to receive royalties from
Royalty Logic, Inc. (RLI) as a Designated Agent for the period October
28, 1998, through December 31, 2002, or any portion thereof,
SoundExchange shall provide to RLI copies of the Reports of Use
described in paragraph (b) of this section for that period or the
applicable portion thereof.
Sec. 370.5 Designated collection and distribution organizations for
reports of use of sound recordings under statutory license.
(a) General. This section prescribes rules under which reports of
use shall be collected and distributed under section 114(f) of title 17
of the United States Code, and under which reports of such use shall be
kept and made available.
(b) Definitions. (1) A Collective is a collection and distribution
organization that is designated under the statutory license by decision
of a Copyright Arbitration Royalty Panel under section 114(f)(1)(B) or
section 114(f)(1)(C)(ii), or by an order of the Librarian of Congress
pursuant to 17 U.S.C. 802(f), prior to the effective date of the
Copyright Royalty and Distribution Reform Act of 2004, or by
determination of the Copyright
[[Page 59019]]
Royalty Judges under section 114(f)(1)(B) or section 114(f)(1)(C)(ii).
(2) A Service is an entity engaged in the digital transmission of
sound recordings pursuant to section 114(f) of title 17 of the United
States Code.
(c) Notice of Designation as Collective under Statutory License. A
Collective shall file with the Licensing Division of the Copyright
Office and post and make available online a ``Notice of Designation as
Collective under Statutory License,'' which shall be identified as such
by prominent caption or heading, and shall contain the following
information:
(1) The Collective name, address, telephone number and facsimile
number;
(2) A statement that the Collective has been designated for
collection and distribution of performance royalties under statutory
license for digital transmission of sound recordings; and
(3) Information on how to gain access to the online Web site or
home page of the Collective, where information may be posted under this
part concerning the use of sound recordings under statutory license.
The address of the Licensing Division is: Library of Congress,
Copyright Office, Licensing Division, 101 Independence Avenue, SE.,
Washington, DC 20557-6400.
(d) Annual Report. The Collective will post and make available
online, for the duration of one year, an Annual Report on how the
Collective operates, how royalties are collected and distributed, and
what the Collective spent that fiscal year on administrative expenses.
(e) Inspection of Reports of Use by copyright owners. The
Collective shall make copies of the Reports of Use for the preceding
three years available for inspection by any sound recording copyright
owner, without charge, during normal office hours upon reasonable
notice. The Collective shall predicate inspection of Reports of Use
upon information relating to identity, location and status as a sound
recording copyright owner, and the copyright owner's written agreement
not to utilize the information for purposes other than royalty
collection and distribution, and determining compliance with statutory
license requirements, without express consent of the Service providing
the Report of Use. The Collective shall render its best efforts to
locate copyright owners in order to make available reports of use, and
such efforts shall include searches in Copyright Office public records
and published directories of sound recording copyright owners.
(f) Confidentiality. Copyright owners, their agents, and
Collectives shall not disseminate information in the Reports of Use to
any persons not entitled to it, nor utilize the information for
purposes other than royalty collection and distribution, and
determining compliance with statutory license requirements, without
express consent of the Service providing the Report of Use.
(g) Termination and dissolution. If a Collective terminates its
collection and distribution operations prior to the close of its term
of designation, the Collective shall notify the Copyright Office, and
all Services transmitting sound recordings under statutory license, by
certified or registered mail. The dissolving Collective shall provide
each such Service with information identifying the copyright owners it
has served.
Dated: October 3, 2006.
James Scott Sledge,
Chief Copyright Royalty Judge.
[FR Doc. E6-16614 Filed 10-5-06; 8:45 am]
BILLING CODE 1410-72-P