[Federal Register: May 30, 2007 (Volume 72, Number 103)]
[Notices]
[Page 30039-30042]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my07-124]
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LIBRARY OF CONGRESS
Copyright Office
Notice of Roundtable Regarding the Section 115 Compulsory License
for Making and Distributing Phonorecords, Including Digital Phonorecord
Deliveries
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice announcing public roundtable.
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SUMMARY: The Copyright Office announces a public roundtable discussion
concerning the use of the statutory license to make and distribute
digital phonorecords, including for a limited period, and to make
phonorecords that facilitate streaming. This discussion is an adjunct
to the comments filed in the current rulemaking exploring these issues.
The roundtable will also address the statutory requirement to provide
notice of intention to obtain the compulsory license.
DATES: The public roundtable will be held in Washington, DC on June 15,
2007, in the Copyright Office Hearing Room at the Library of Congress,
Room LM-408, 4th Floor, James Madison Building, 101 Independence
Avenue, SE, Washington, DC from 9:30 a.m. to 4:30 p.m. Requests to
participate or observe the roundtable shall be submitted in writing no
later than close of business on June 6, 2007.
ADDRESSES: Requests to observe or participate in the roundtable should
be addressed to Joe Keeley, Attorney Advisor, and may be sent by mail
or preferably by e-mail to musiclicense@loc.gov. See SUPPLEMENTARY
INFORMATION for alternative means of submission and filing
requirements.
FOR FURTHER INFORMATION CONTACT: Joe Keeley, Attorney Advisor, or
Stephen Ruwe, Attorney Advisor, Office of the General Counsel, P.O. Box
70977, Southwest Station, Washington, DC 20024-0977. Telephone: (202)
707-8350. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
Background
Section 115 of the Copyright Act, title 17 of the United States
Code provides a statutory license for the making and distribution of
phonorecords of nondramatic musical works. Historically, the statutory
rates have established the ceiling for the mechanical licenses issued
in the marketplace. In 1995, Congress passed the Digital Performance
Right in Sound Recordings Act, Pub. L. No. 104-39, 109 Stat. 336, which
amended section 115 to include the right to distribute a phonorecord by
means of a ``digital phonorecord delivery'' (``DPD''). The statute
includes a definition of a DPD and explains the process for
establishing rates for these phonorecords. In addition, it acknowledges
the existence of additional DPDs ``where the reproduction or
distribution of the phonorecord is incidental to the transmission which
constitutes the [DPD]'' 17 U.S.C. 115(c)(3)(D), and requires that a
separate rate be set for these phonorecords. However, the law does not
identify which DPDs can be classified as incidental or provide any
guidelines for making this decision.
For this reason, the Copyright Office published a Notice of Inquiry
in the Federal Register, 66 FR 14099 (March 9, 2001), requesting
comment on the interpretation and application of the mechanical and
digital phonorecord compulsory license, 17 U.S.C. 115, to certain
digital music services. The Recording Industry Association of America
(``RIAA'') had suggested in its petition for this rulemaking that
section 115 be interpreted in such a way as to cover all reproductions
made to operate services offering On-Demand Streams and Limited
Downloads, as defined in the March 9, 2001, notice. At about the same
time, RIAA entered into separate negotiations with the National Music
Publishers Association and the Harry Fox Agency, Inc. and reached an
agreement concerning several of the issues involved in the original
Notice of Inquiry. Because this side agreement addressed the key issues
raised in the earlier Notice of Inquiry, the Copyright Office sought
additional comments on
[[Page 30040]]
the original questions. 66 FR 64783 (December 14, 2001).
The incidental DPD debate has been hotly contested and, along with
the reform of section 115, the subject of numerous hearings before the
Subcommittee on Courts, the Internet and Intellectual Property of the
House Committee on the Judiciary (March 23, 2007; May 16, 2006; June
21, 2005; and March 11, 2004) and the Senate Judiciary Committee,
Subcommittee on Intellectual Property (July 12, 2005). Yet, in spite of
all the attention, the legal issues remain unresolved. Consequently,
the Office is again focusing on the rulemaking process and is hosting
the roundtable discussion as a way to refresh the existing record in
order to ascertain the scope of the 115 license in relation to certain
digital music services.
In addition to the issues raised in the March 9, 2001, Notice of
Inquiry, on August 28, 2001, the Copyright Office issued a Notice of
Proposed Rulemaking to amend the rules associated with service of a
Notice of Intention to Obtain Compulsory License (``Notice'') under
section 115. 66 FR 45241 (August 28, 2001). The purpose of the
amendments was to streamline the notification process and make it
easier for the licensee to serve the copyright owner with Notice for
multiple musical works. After considering the comments received in that
rulemaking proceeding, the Office adopted regulations that allow, among
other things: service on an agent; the listing of multiple works on a
single Notice; the filing of a single Notice to cover all possible
configurations, including those not listed specifically on the Notice;
and use of an address other than the one listed in Copyright Office
records. 69 FR 34578 (June 22, 2004).
In issuing its Final Rule, the Office recognized that the purpose
of the Notice requirements in section 115 of the Copyright Act, is
``merely to give notice to the copyright owner of a licensee's
intention to use the copyright owner's musical work to make and
distribute phonorecords subject to the terms of the section 115
compulsory license.'' 69 FR 34581 (June 22, 2004). The Office now seeks
to address whether there are compelling reasons to further streamline
the Notice process.
Roundtable Topics
The Office is identifying a number of key issues for discussion and
encourages the participation of persons who can address these issues
from the perspectives of law, policy and the practical needs of the
affected industries. The Office also encourages input from persons who
can speak to the technological aspects involved in the making of a
digital transmission, especially with respect to the making of specific
reproductions during the course of a transmission. In addition, the
Office invites participants to identify any other actions they believe
the Office should undertake, pursuant to its regulatory authority, to
make the section 115 license more workable and/or efficient.
Topic 1: How do ``Limited Downloads'' Fit Within the Scope of
the Section 115 License?
The March 9, 2001, Notice of Inquiry addressed a petition for
clarification of the status of Limited Downloads within the section 115
license. The petitioning party, the RIAA, characterized a Limited
Download as an on-demand transmission of a time-limited or other use-
limited download to a storage device (such as a computer's hard drive),
using technology that causes the downloaded file to be available for
listening only either during a limited time or for a certain number of
times. The Notice of Inquiry, as well as the resulting comments,
focused largely on whether Limited Downloads fit within the scope of
section 115 as either incidental digital phonorecord deliveries
(``incidental DPDs''), as provided for in 17 U.S.C. 115(c)(3)(D), or
distributions of phonorecords by rental lease or lending, as provided
for in 115 U.S.C. 115(c)(4). Since a DPD is defined as an ``individual
delivery of a phonorecord which results in a specifically identifiable
reproduction,'' and since a Limited Download would appear to be the
specifically identifiable reproduction that is the end result of the
DPD, could that same Limited Download also be considered ``incidental
to the transmission which constitutes the digital phonorecord
delivery?'' Can a DPD in fact result in a reproduction which is
incidental to itself or should a Limited Download be characterized as a
general DPD,\1\ albeit potentially valued at a different rate. The
Office welcomes further discussion on each of these approaches.
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\1\Section 115(d) defines a ``digital phonorecord delivery'' as
``each individual delivery of a phonorecord by digital transmission
of a sound recording which results in a specifically identifiable
reproduction by or for any transmission recipient of a phonorecord
of that sound recording, regardless of whether the digital
transmission is also a public performance of the sound recording or
any nondramatic musical work embodied therein. A digital phonorecord
delivery does not result from a real-time, non-interactive
subscription transmission of a sound recording where no reproduction
of the sound recording or the musical work embodied therein is made
from the inception of the transmission through to its receipt by the
transmission recipient in order to make the sound recording
audible.''
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In considering whether a Limited Download can be viewed as an
incidental DPD, the Office takes note of the fact that the language of
17 U.S.C. 115(c)(3)(D) identifies an incidental DPD as a reproduction
or distribution of a phonorecord that is incidental to the transmission
which constitutes the digital phonorecord delivery. This would seem to
indicate that an incidental DPD cannot exist without an underlying DPD.
Given this condition, could a Limited Download ever be considered an
incidental DPD? If the Limited Download is considered a general DPD,
are there also incidental DPDs made in the course of delivering the
Limited Download?
Alternatively, reliance on the section 115 provision for rental,
lease or lending of a phonorecord as a way to clear the rights to the
use of the musical work in Limited Downloads is not self-evident. A
plain reading of the statutory language\2\ seems to envision that any
coverage provided by the section 115 license for phonorecord rental,
lease or lending is predicated on a further distribution of a
phonorecord already in existence. Furthermore, use of the provision
appears to require a licensee to make two payments, once under 17
U.S.C. 115(c)(2) for the making and distribution of the phonorecord and
again for subsequent acts of rental, lease or lending of that
phonorecord. It is also worth noting that royalty determinations for
every such act of rental, lease or lending are dependent upon the
revenue received by the licensee for the underlying reproduction and
distribution.\3\ As a matter of practicality, it seems the rental,
lease or lending provision is uniquely suited to traditional, non-
digital, uses of the
[[Page 30041]]
section 115 license, in which a phonorecord is not parted with
permanently, but instead returned to the licensee who may rent it
multiple times. The Office welcomes alternative views on application of
the section 115 provision for rental, lease or lending of a phonorecord
to Limited Downloads.
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\2\``A compulsory license under this section includes the right
of the maker of a phonorecord of a nondramatic musical work under
subsection (a)(1) to distribute or authorize distribution of such
phonorecord by rental, lease, or lending (or by acts or practices in
the nature of rental, lease, or lending). In addition to any royalty
payable under clause (2) and chapter 8 of this title, a royalty
shall be payable by the compulsory licensee for every act of
distribution of a phonorecord by or in the nature of rental, lease,
or lending, by or under the authority of the compulsory licensee.
With respect to each nondramatic musical work embodied in the
phonorecord, the royalty shall be a proportion of the revenue
received by the compulsory licensee from every such act of
distribution of the phonorecord under this clause equal to the
proportion of the revenue received by the compulsory licensee from
distribution of the phonorecord under clause (2) that is payable by
a compulsory licensee under that clause and under chapter 8. The
Register of Copyrights shall issue regulations to carry out the
purpose of this clause.'' 115 U.S.C. 115(c)(4)
\3\Id.
Topic 2: Does ``Streaming'' Fit Within the Scope of the Section
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115 License?
The March 9, 2001, Notice of Inquiry sought clarification of the
status of streaming,\4\ specifically with respect to ``on-demand
streams'' within the section 115 license. In the previous Notice of
Inquiry, the Office recognized that streaming necessarily involves a
making of a number of copies of the musical work--or portions of the
work--along the transmission path to accomplish the delivery of the
work. Copies are made by the computer servers that deliver the musical
work (variously referred to as ``server,'' ``root,'' ``encoded,'' or
``cache'' copies), and additional copies are made by the receiving
computer to better facilitate the actual performance of the work (often
referred to as ``buffer'' copies). Some of these copies are temporary;
some may not necessarily be so. 66 FR 14101 (March 9, 2001).
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\4\While the March 9, 2001, Notice of Inquiry set out to address
``On-Demand Streams'' only, the Office will consider all types of
streaming, regardless of their interactive nature, in determining
their place within the scope of the section 115 license, which
unlike the section 114 license makes no distinction between
interactive and noninteractive uses of copyrighted works.
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Similar to its consideration with regard to Limited Downloads, the
Office welcomes further information regarding whether the reproductions
made in the course of streaming enjoy coverage under the section 115
provisions as incidental DPDs. Again, the Office takes note of the fact
that the language of 17 U.S.C. 115(c)(3)(D) identifies an incidental
DPD as a reproduction or distribution of a phonorecord that is
incidental to the transmission which constitutes the digital
phonorecord delivery.
The Office, therefore, seeks further information as to whether the
reproductions made to facilitate a stream result in a DPD as defined in
section 115(d),\5\ focusing on the requirement that the DPD must result
in ``a specifically identifiable reproduction by or for any
transmission recipient.'' Does streaming result in such specifically
identifiable reproductions? And if a DPD is made in the course of
streaming, does the streaming process also produce incidental DPDs for
purposes of section 115? The Office welcomes the participation of
individuals who can provide technical expertise in considering these
questions.
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\5\ See supra n.1.
Topic 3: Do Server Copies Necessary to Transmit Limited
Downloads or Streams Fit Within the Scope of the Section 115
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License?
The Office welcomes further information as to whether server
copies, or other copies not actually delivered to the public for
private use, fit within the scope of the section 115 license, perhaps
as incidental DPDs. The language of 17 U.S.C. 115(c)(3)(D), which
identifies an incidental DPD as a reproduction or distribution of a
phonorecord that is incidental to the transmission which constitutes
the digital phonorecord delivery could indicate that server copies may
be considered incidental DPDs. On the other hand, the section 115(a)(1)
requirement that ``a person may obtain a compulsory license only if his
or her primary purpose in making phonorecords is to distribute them to
the public for private use'' may cut against consideration of a server
copy as an incidental DPD, at least in cases where the server copy is
used for purposes of streaming. Does the fact that the law indicates
that an incidental DPD can be either a reproduction or a distribution
minimize the importance of the 115(a)(1) requirement or nullify it in
the case of an incidental DPD?
Topic 4: Notice Requirements
The Office amended its regulations governing Notice several years
ago to allow service on agents of copyright owners as a way to make the
license more functional. 69 FR 34578 (June 22, 2004). However, the
section 115 license remains largely unused by most parties to previous
rulemaking proceedings who expressed an interest in employing it. The
Office, therefore, seeks information as to whether there are compelling
reasons to further streamline the Notice process.
Specifically, the Office seeks further information on the benefits
and burdens of the existing Notice requirements; the potential to
eliminate information (data fields) currently required in a Notice; and
services and technology that may be employed by either the Office or
third parties to assist in the Notice process. The Office also seeks
further information on the following previously suggested, yet
heretofore unimplemented, methods for streamlining the Notice process:
a.Filing of ``Universal'' or ``Database'' Notices.
Current regulations allow that a Notice may address the works of
multiple copyright owners only so long as such Notice is served on an
agent of a copyright owner, and all of the works addressed by such
Notice are owned or co-owned by copyright owners who have authorized
their agent to accept Notice on their behalf. The Office seeks further
information concerning additional changes to allow the filing of a
single, universal ``Database'' Notice upon agents of copyright owners.
Such a ``Database'' Notice would be effective only to the extent it
addresses works owned or co-owned by the copyright owners represented
by the agent on whom the Notice is served. Similar proposals regarding
``Database'' Notices have been suggested in previous proceedings. One
such proposal put forward by DiMA, would have allowed the licensee, in
the case of electronic submissions, to serve directly on copyright
owners a single ``Database'' Notice listing multiple works by multiple
owners. 69 FR 11571 (March 11, 2004).
The Office undertakes further inquiry regarding service of a single
``Database'' Notice to consider another proposal similar to DiMA's that
would allow service of ``Database'' Notices on agents of copyright
owners, as opposed to service of ``Database'' Notices directly on
copyright owners. In its earlier consideration for allowing
``Database'' Notices, the Office found that section 115 ``does not
anticipate that the copyright owner should have to search a licensee's
universal database Notice to determine which of the copyright owner's
works a licensee intends to use.'' 69 FR 11571 (March 11, 2004). In
seeking further information regarding service of a ``Database'' Notice
on agents of copyright owners, the Office recognizes the continually
advancing search and sort capabilities of word processing, spreadsheet,
and other electronic data management applications that are in
increasingly wide use. Given such capabilities, would it be reasonable
to require agents of copyright owners served with Notice to provide not
only the name and address of the person to whom Statements of Account
and monthly royalties are to be made, but also information regarding
the works owned by the copyright owners the agent represents? And,
assuming for purposes of this discussion copyright owners can provide
this information, can and should the Office issue regulations under
section 115 to allow service of a blanket ``Database'' Notice on a
copyright owner (or an agent of one or more copyright owners) that does
not specify any particular musical work, but simply states that the
user intends to
[[Page 30042]]
use the section 115 license to make and distribute DPDs for all musical
works owned by that particular copyright owner (or all copyright owners
represented by that particular agent)?
The Office takes note of the actions among interested parties to
develop data exchange standards for information relating to media
content, exemplified by the establishment of ``Digital Data Exchange.''
(See http://www.ddex.net. Are there additional emerging business solutions
that may efficiently aid the administration of ``Database'' Notices?
Would the adoption of a uniform standard for the exchange of digital
data allow for the use of a universal ``Database'' Notice? Are there
legal impediments to allowing service of a universal ``Database''
Notice on agents of copyright owners?
b.Authority of Agents
Current regulations allow a potential licensee to choose to serve
Notice on either the copyright owner or an agent of the copyright owner
with authority to receive the Notice. Previous rulemaking proceedings
have considered that the regulations may set a higher standard for
establishing an agency relationship than that applied as a matter of
agency law. 69 FR 11568 (March 11, 2004). Currently, the regulations
provide for service of the Notice on either the copyright owner or an
agent of the copyright owner with authority to receive the Notice. The
Office seeks further input as to whether an agent with authority to
accept Notices includes general registered agents of copyright owners
of the sort that may be required as a condition of enjoying corporate
or other similar legal status by copyright owners in their respective
jurisdictions. And if not, whether the regulations should be so
amended.
Participation and Filing Requirements
Parties wishing to observe or participate in the roundtable
discussion must submit a written request no later than close of
business on June 6, 2007. Requests to observe the roundtable or to
participate as a member of the roundtable must indicate the following
information:
1. The name of the person, including whether it is his or her
intention to observe the roundtable or to participate as a member of
the roundtable;
2. The organization or organizations represented by that
person, if any;
3. Contact information (address, telephone, and e-mail); and
4. Information on the specific focus or interest of the
observers or participants (or his or her organization) and any
questions or issues they would like to raise.
The capacity of the room in which the roundtable will be held is
limited. If the Office receives so many requests that the room's
capacity is reached, attendance will be granted in the order the
requests are received.
The preferred method for submission of the requests to observe or
participate is via email. If sent by e-mail, please send to
musiclicense@loc.gov. Alternatively, requests may be delivered by hand
or submitted by mail.
If hand delivered by a private party, an original and five copies
of the request to observe or participate should be brought to Room 401
of the James Madison Building between 8:30 a.m. and 5 p.m. The envelope
should be addressed as follows: Office of the General Counsel, Library
of Congress, James Madison Building, LM-401, Washington, DC, 20559-
6000.
If delivered by a commercial courier, an original and five copies
of a request to observe or participate in the roundtable must be
delivered to the Congressional Courier Acceptance Site (``CCAS'')
located at 2nd and D Streets, NE, Washington, DC between 8:30 a.m. and
4 p.m. The envelope should be addressed as follows: Office of the
General Counsel, U.S. Copyright Office, LM 401, James Madison Building,
101 Independence Avenue, SE, Washington, DC. Please note that CCAS will
not accept delivery by means of overnight delivery services such as
Federal Express, United Parcel Service or DHL.
If sent by mail (including overnight delivery using U.S. Postal
Service Express Mail), an original and five copies of a request to
observe or participate should be addressed to U.S. Copyright Office,
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC
20024. Please be aware that delivery of mail via the U.S. Postal
Service or private courier is subject to delay. Therefore, it is
strongly suggested that any request to observe or participate be made
via email.
Dated: May 24, 2007
Marybeth Peters,
Register of Copyrights.
[FR Doc. E7-10363 Filed 5-29-07; 8:45 am]
BILLING CODE 1410-30-S