[Federal Register Volume 59, Number 11 (Tuesday, January 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1199]


[[Page Unknown]]

[Federal Register: January 18, 1994]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Parts 251, 252, 253, 254, 255, 256, 257, 258, 259, 301, 302, 
303, 304, 305, 306, 307, 308, 309, 310, and 311

[Docket No. RM94-1]

 

Copyright Arbitration Royalty Panels; Rules and Regulations

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking and announcement of open meeting.

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SUMMARY: On December 22, 1993, the Copyright Office of the Library of 
Congress in accordance with the Copyright Royalty Tribunal Reform Act 
of 1993, adopted in their entirety the rules and regulations of the 
former Copyright Royalty Tribunal. The Office stated at that time that 
it was adopting the rules on an interim basis, and that it would soon 
commence a rulemaking proceeding to update and revise those rules. 
Today's action commences that proceeding by publishing a set of 
proposed rules and announcing a public meeting to discuss the proposed 
regulations.

DATES: Written comments should be received on or before February 15, 
1994. The open meeting will be held on February 1, 1994.

ADDRESSES: Ten copies of written comments should be addressed, if sent 
by mail, to: Copyright Office, Library of Congress, Department 17, 
Washington, DC 20540. If delivered by hand, copies should be brought 
to: Office of the General Counsel, Copyright Office, room LM-407, James 
Madison Memorial Building, 101 Independence Avenue, SE., Washington, DC 
20540. In order to ensure prompt receipt of these time sensitive 
documents, the Office recommends that the comments be delivered by a 
private messenger service.
    The meeting will be in Hearing Room 921, 9th Floor, 1825 
Connecticut Avenue, NW., Washington, DC beginning at 10 a.m. Parties 
need not inform the Copyright Office of their intention to participate.

FOR FURTHER INFORMATION CONTACT:
Marybeth Peters, Acting General Counsel, U.S. Copyright Office, Library 
of Congress, Washington, DC 20540, (202) 707-8380.

SUPPLEMENTARY INFORMATION: The Copyright Office of the Library of 
Congress is proposing new regulations under 17 U.S.C. 802(d), 
supplementing and superseding the former Copyright Royalty Tribunal's 
rules and regulations which were adopted on December 22, 1993. 58 FR 
67690 (1993). The Office is also proposing a course of action for 
dealing with rate adjustment and distribution matters which were 
pending before the Tribunal at the time of its elimination. A meeting 
open to the public will be held on February 1, 1994 at 10 a.m. to 
discuss all issues related to today's publication.

I. Background

    On December 17, 1993, the President signed into law the Copyright 
Royalty Tribunal Reform Act of 1993 (``Reform Act''). Public Law No. 
103-198, 107 Stat. 2304. Effective immediately upon enactment, the 
Reform Act amends the Copyright Act, 17 U.S.C., by eliminating the 
Copyright Royalty Tribunal and transferring its responsibilities and 
duties to ad hoc Copyright Arbitration Royalty Panels (CARPs), to be 
administered by the Library of Congress and the Copyright Office. As 
directed by the new act, the Librarian of Congress will convene 
Copyright Arbitration Royalty Panels for the purpose of adjusting rates 
and distributing royalties. See 17 U.S.C. 111, 115, 116, 118, 119 and 
chapter 10.
    Immediately upon enactment of the Reform Act the Copyright Office 
issued a notice adopting the full text of the former Tribunal's rules 
and regulations on an interim basis. 58 FR 67690 (1993). This action 
was required by new section 802(d) of the Copyright Code, which 
provides:

    Effective on the date of the enactment of the Copyright Royalty 
Tribunal Reform Act of 1993, the Librarian of Congress shall adopt 
the rules and regulations set forth in chapter 3 of title 37 of the 
Code of Federal Regulations to govern proceedings under this 
chapter. Such rules and regulations shall remain in effect unless 
and until the Librarian, upon the recommendation of the Register of 
Copyrights, adopts supplemental or superseding regulations under 
subchapter II of chapter 5 of title 5.

17 U.S.C. 802(d). The Copyright Office made only slight technical 
changes to the former Tribunal's rules, stating that it intended to 
review and revise the rules during the course of a future rulemaking. 
58 FR at 67690 (1993). The Office now commences that proceeding to 
conform the rules to the new system of Copyright Arbitration Royalty 
Panels.

II. Matters Pending Before the Former Tribunal

    A major issue facing the Copyright Office of Library of Congress at 
the outset of today's proposed rulemaking is the resolution of rate 
adjustments and distributions, and related matters, which were pending 
before the Copyright Royalty Tribunal at the time of its demise. Some 
of these proceedings, such as distribution of 1990 cable royalties, had 
already commenced hearings, while others were awaiting determination of 
controversies or rulings on procedural issues. Since the Office is 
proposing new rules and regulations which will govern and shape rate 
adjustment and distribution proceedings under the new system, the 
Office must first decide how to handle the Tribunal's old business.
    The Copyright Office is of the firm opinion that it is not the 
successor agency or office to the Copyright Royalty Tribunal. The 
Reform Act represents a radically different approach for adjusting 
rates and distributing royalties for the copyright compulsory licenses, 
and is not an absorption of one agency by another. The Tribunal is 
replaced, not moved or merged, by ad hoc Arbitration Panels which are 
to be administered by the Copyright Office of the Library of Congress. 
The Office is therefore not simply picking up where the Tribunal left 
off, but is responsible for administering a completely new system of 
ratemaking and distribution.
    Because the Copyright Office is not a successor agency, it is our 
preliminary finding that all proceedings pending before the Tribunal at 
the time of its elimination were terminated at that time. In other 
words, the Office will not continue to conduct and handle matters and 
proceedings which were before the Tribunal, but will require that all 
parties which had pending business before the Tribunal at the time of 
its elimination must, if they desire the matter to receive further 
consideration, file the matter anew before the Copyright Office. Thus, 
for example, the Librarian will not automatically convene a Copyright 
Arbitration Royalty Panel to pick up where the proceedings left off for 
the 1990 cable distribution, but will require the parties who 
participated in that proceeding to refile their case with the Office in 
accordance with the rules and regulations proposed below. While the 
Office understands that the parties may be somewhat burdened by 
duplicating at least a portion of their case, it is necessary that the 
Office wipe the slate clean and, for purposes of the operation of the 
proposed rules and administrative efficiency, begin anew the matters 
pending before the former Tribunal.
    An issue related to the termination of proceedings pending before 
the former Tribunal and the requirement of new filings is the legal 
effect of orders and decisions issued by the Tribunal during those 
proceedings. New section 802(c) of the Copyright Act states that 
Copyright Arbitration Royalty Panels ``shall act on the basis of * * * 
prior decisions of the Copyright Royalty Tribunal * * *'', but does not 
bind the Panels to those decisions; the effect of those decisions on 
the Librarian or the Copyright Office is not mentioned.
    The Copyright Office has no intention of questioning or reopening 
matters decided by the former Tribunal with respect to ongoing 
proceedings. However, we understand that the termination of pending 
Tribunal proceedings and the requirement of new filings will likely 
raise again some of the issues previously decided by the Tribunal. The 
Copyright Office of the Library of Congress makes a preliminary finding 
that, while we will look to the Tribunal's decisions and orders for 
guidance, neither the Office nor the Copyright Arbitration Royalty 
Panels are legally bound by those decisions.\1\ All legal issues 
related to proceedings pending before the Tribunal at the time of its 
elimination may therefore be resubmitted to the Copyright Office and, 
where appropriate, to the Arbitration Panels for consideration.
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    \1\The Copyright Office acknowledges that it is of course bound 
by rate adjustments and distributions that the Tribunal had 
conducted and concluded before its elimination. Thus, for example, 
the Office will not entertain any petitions to reexamine cable 
distributions for years earlier than 1990.
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III. Proposed Rules

    Revising the former Tribunal's rules is a particularly complicated 
task, given the division of authority between the Copyright Arbitration 
Royalty Panels and the Copyright Office of the Library of Congress. 
Under the old law the Tribunal acted as a single autonomous body; in 
contrast, the distribution of royalty fees or the setting of royalty 
rates under the new legislation will often be a multistage process. For 
example, in order to adjust a compulsory license royalty rate, the 
Librarian of Congress, with the recommendation of the Register of 
Copyrights, must appoint an arbitration panel and then review the 
panel's report and, with the Register's recommendation, either approve 
the report or substitute his/her own judgment. This new system renders 
many of the former Tribunal's rules and regulations inappropriate, and 
requires creation of a new framework to allocate responsibilities.
    At the same time, the Library and the Copyright Office recognize 
the desirability of preserving as much continuity as possible between 
the old and new systems.\2\ The proposed rules are based upon and seek 
to track the structure and organization of the former Tribunal's rules.
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    \2\The need for continuity is underscored by the Reform Act's 
instruction that the Tribunal's rules be fully adopted upon 
enactment, to be later amended or superseded. See 17 U.S.C. 802(d).
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    The Library and Copyright Office have thoroughly reviewed the 
entire body of the former Tribunal's rules and regulations and 
considered the extent to which they fit with the new bifurcated system 
of ad hoc Arbitration Panels administered by the Library and the 
Office. The results are today's proposed rules, which are intended to 
preserve the essential elements of the Tribunal's system while taking 
into account the requirements and complexities presented by an 
independent arbitration process.
    At the outset a technical change is required by the regulations 
governing the Code of Federal Regulations itself; the former Tribunal's 
rules are being moved from Chapter III to Chapter II of Title 37, CFR. 
Chapter III is repealed, and Chapter II is restructured to accommodate 
the new body of regulations. Chapter II, which until now has contained 
five individual parts (Parts 201-204 and 211), will be divided into two 
subchapters. Subchapter A will contain the five original parts of 
Chapter II, and new Subchapter B will contain the entire body of the 
former Tribunal rules, along with today's proposed changes. And future 
rule changes or additions bearing upon the Copyright Arbitration 
Royalty Panels will appear in subchapter 8 of Chapter II, 37 CFR.
    The part numbers of the rules generally track the Tribunal's 
original structure (parts 301-311), and are redesignated parts 251-259 
of the Copyright Office's rules. Two parts of the Tribunal's former 
rules, parts 303 and 305 relating to jukebox performances, are being 
repealed since their relevance has been eliminated by the Reform Act's 
repeal of the jukebox compulsory license.
    The main task of today's proposed rulemaking is to provide the 
substantive changes in the former Tribunal's rules necessary to 
implement the Reform Act and to create a workable and efficient system 
for adjusting royalty rates and distributing royalties. The following 
is a part-by-part summary of the proposed changes.

A. Part 251--Copyright Arbitration Royalty Panels Rules of Procedure

    Part 251 is a proposed revision of part 301 of the former 
Tribunal's rules, which covered most of the Tribunal's operating 
procedures and rules of practice. This is the part that is in greatest 
need of revision, since many of the rules are inappropriate to govern 
the new system of ad hoc Arbitration Panels. The following summarizes 
the proposed changes in the various subparts of part 251.
1. Subpart A--Organization
    Subpart A of part 251, entitled ``Organization'' and describing the 
composition of the Copyright Royalty Tribunal, was rendered superfluous 
by the Reform Act. Since it is necessary to create a completely 
different organizational scheme to implement the new system, we are 
planning to repeal all of subpart A and to substitute completely new 
provisions.
    Official Address. Part 251.1 provides a single official address for 
all proceedings and actions conducted under subchapter B. Establishment 
of an official address is important, since many sections of subchapter 
B refer to this section or require documents to be filed at this 
address, including all royalty claims, requests for information, public 
access to documents, payments of Arbitration Panel costs, and motions, 
objections, and records filed with the Panels. Moreover, since all 
records submitted to the Copyright Office, to the Library, and to the 
CARPs are, with limited exceptions, available to the public for 
inspection and copying, a single address is required to assure that all 
documents will be assembled in a single location for the convenience of 
those wishing to inspect them. We also believe that providing a single 
permanent repository for all documents created and submitted under 
subchapter B is not only important, but required.
    All this may seem self-evident, but there is a problem here. Unlike 
the proceedings of the Tribunal, arbitration proceedings will not 
necessarily take place at a single location, within the Library of 
Congress or elsewhere. There may be incentive in particular cases for 
parties to deliver filings directly to the actual location where the 
CARP is meeting, but we believe it would be a mistake to allow entire 
filings to go to locations different from the mailing address specified 
in these proposed regulations. Any possible advantages of such a system 
to the parties or the Panels would be outweighed by the dangers of 
confusion among parties to different proceedings and possible 
uncertainties and difficulties in mail receipt and delivery. Since 
individuals' rights often depend on the timely filing and delivery of 
papers, the guarantee of proper handling can only be afforded by 
delivery to a single address in the Copyright Office of the Library of 
Congress.
    At the same time, while section 251.1 creates a single official 
address, section 251.44 provides the parties flexibility in submitting 
documents and filing papers. In cases where an Arbitration Panel is 
conducting a hearing, the arbitrators are directed to establish 
requirements permitting delivery of filings directly to them, as long 
as one copy of the filing is delivered to the Copyright Office at its 
official address.
    Purpose of the CARPs. Section 251.2 describes the purpose of the 
Copyright Arbitration Royalty Panels: to make rate adjustments and/or 
royalty distributions for the cable (17 U.S.C. 111), mechanical (17 
U.S.C. 115), jukebox (17 U.S.C. 116), public broadcasting (17 U.S.C. 
118), satellite carrier (17 U.S.C. 119) and digital audio recording 
devices and media (17 U.S.C. chapter 10) licenses. The jurisdiction of 
the Copyright Arbitration Royalty Panels is more limited than that of 
the Copyright Royalty Tribunal which, for example, had authority to 
adjust the royalty maximum for digital audio recording devices. This 
adjustment is now the province of the Librarian. See 17 U.S.C. 
1004(a)(3). There are also certain arbitration procedures in the 
Copyright Act which are not within the jurisdiction of the CARPs. See 
17 U.S.C. 119 and 1010.
    List of Arbitrators. The Reform Act provides that the selection of 
arbitrators for a Royalty Panel must be made from ``lists provided by 
professional arbitration associations.'' 17 U.S.C. 802(b). Sections 
251.3 and 251.4 govern the creation and use of those lists. Before the 
beginning of each year (and, in the case of the current year of 1994, 
before March 1), any professional arbitration association or 
organization may submit a list of its member arbitrators who would be 
qualified to serve on a Copyright Arbitration Royalty Panel. Specific 
information is required with respect to each person whose name is 
submitted, including current and past employment, educational 
background, and a description of the facts and information that would 
qualify the person to serve as an arbitrator. After receiving the 
lists, there will be an initial screening process in which the 
Librarian will determine: 1) if the proposed person meets the necessary 
qualifications to serve as an arbitrator; and 2) if that person can 
reasonably be expected to be available during that calendar year. The 
names of persons meeting the requirements will be published in the 
Federal Register at the beginning of each year (in the case of 1994, by 
March 1), and this publication will serve as the master list from which 
the Librarian can select names for any arbitration proceeding 
commencing in that calendar year.
    Objection Procedure. The Librarian will screen the master list, and 
there is also a procedure for objection. The objection procedure is 
confined to the period before an individual arbitration proceeding 
begins, and is limited to the parties participating in that proceeding. 
In the case of rate adjustment proceedings, parties may file their 
objections during the 90-day ``cooling off'' period following the 
filing of petitions for adjustment. See Sec. 251.63. In the case of 
distribution proceedings, objections must be filed during the 
precontroversy discovery period specified by Sec. 251.45(a). Objections 
must clearly spell out the facts and reasons for disqualification of 
persons on the arbitrator list, and the Librarian will consider them 
during the selection process for the first two arbitrators. Once the 
Librarian has made his selections, the objections will be made 
available to the two arbitrators to assist them in their selection of 
the third arbitrator. No peremptory objections will be allowed.
    Qualifications of the Arbitrators. Section 251.5 describes the 
qualifications a person must have to serve as an arbitrator. We have 
deliberately avoided adopting an extensive and specific list of 
qualifications on the theory that the results of a long, overly-
particularized list of qualifications would likely result in a 
homogeneous Panel, and that the Librarian should be able to choose from 
persons of diverse backgrounds and skills. The Reform Act requires that 
an arbitrator have experience in conducting arbitration proceedings, 
and experience in settling disputes. The only two qualifications the 
Office has added are membership in a bar association and ten or more 
years of legal practice. Since the arbitration process contemplated by 
the Reform Act often resembles an adjudicatory procedure more than a 
traditional arbitration, the Office felt that it was necessary for 
arbitrators to be lawyers with a fair amount of experience as 
practitioners. The area of practice is not specified; we believe that a 
background in copyright, though helpful, is not necessarily 
indispensable to serving as an arbitrator. Keeping the number of 
qualifications to a minimum should produce a diversified group of 
individuals to serve as arbitrators with the necessary legal training 
and experience to accomplish the task efficiently and effectively.
    Selection Process. Section 251.6 describes the selection process 
for an arbitration panel, restating the process described in the Reform 
Act. See 17 U.S.C. 802(b). The section requires the chairperson to act 
according to the majority wishes of the panel. There is also a 
provision regarding substitution of arbitrators who, after selection, 
for some reason become unable to continue service. In that event, the 
Librarian is directed to select a replacement promptly unless hearings 
have already begun in the proceeding. If hearings have begun, the 
remaining arbitrators or arbitrator would constitute the quorum 
necessary to render a determination.
    Division of Authority between Librarian and CARP. Section 251.7 
underscores the division of authority between the Librarian and the 
Royalty Panels. The Panels are limited by the statute to making 
determinations in individual and separate proceedings necessary to 
settling a controversy over royalty rates or distributions. Although 
given authority to issue orders governing the conduct of the 
proceedings, the Panels do not have rulemaking authority to amend or 
otherwise alter these rules and regulations when they are issued in 
final form.\3\ Furthermore, since the Panels are not independent 
agencies, they have no authority to publish materials in the Federal 
Register. Because the Panels are considered a part of the Copyright 
Office and the Library of Congress, any orders and rulings of the 
Panels that are to be published must be issued under the auspices of 
the Office and the Library.
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    \3\Section 251.42 allows an individual Panel to waive or suspend 
the rules of subchapter B for purposes of the proceeding. In the 
cases where Subchapter B does not prescribe a rule governing a 
particular question, the Panel, in accordance with 17 U.S.C. 802(c), 
may adopt its own rule for purposes of that proceeding. This 
provision is designed to give a Panel some flexibility in executing 
its duties with respect to the facts of its case. It is not, 
however, a grant of rulemaking authority, and any waiver, suspension 
or adoption of a rule has effect only on the course of that 
proceeding and in no way affects the rules and regulations of this 
subchapter or their application to other proceedings. It is expected 
that each Panel will follow these rules and apply them in a way that 
produces a just and equitable proceeding.
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2. Subpart B--Public Access to Copyright Arbitration Royalty Panel 
Meetings
    Although the Government in the Sunshine Act, Public Law No. 94-409, 
90 Stat. 1241, does not apply to Copyright Arbitration Royalty Panels, 
since CARPs are not an ``agency or agencies,'' the Copyright Office 
believes that the provisions of the Act should apply to the conduct of 
meetings held by the arbitrators. This Subpart, therefore, tracks the 
procedures governing open and closed meetings which the former Tribunal 
adopted and followed with only a few changes.
    Section 251.11 states that all meetings of a Copyright Arbitration 
Royalty Panel shall be open to the public unless otherwise specified. 
Notice of the anticipated schedule of the hearings will be placed in 
the Federal Register at least 7 days before the meeting. As amendments 
to the schedule are made, every practicable effort will be made to keep 
the public informed. Section 251.12 provides for public and media 
access to open meetings, adopting the former Tribunal's rules in toto.
    Sections 251.13 to 152.16 prescribe the procedures to be followed 
in closed meetings, adopting virtually all of the former Tribunal's 
rules. Section 251.13 drops the requirement of closed meetings for 
internal personnel matters, since the Panels are without authority to 
hire or maintain personnel, but it adds to the discretion of the Panel 
to go into closed session to deliberate on a motion or objection raised 
orally at hearing. Section 251.16 directs that transcripts of closed 
meetings shall be kept at the Copyright Office, which is the official 
address for all arbitration proceedings.
3. Subpart 3--Public Access to and Inspection of Records
    As in subpart B, the copyright Office is proposing in subpart C to 
adopt the former Tribunal's rules with respect to public access to and 
inspection of records, but with some important changes. The range of 
documents available to the public is expanded. Section 251.21 provides 
that, with limited exceptions, all records of the Copyright Arbitration 
Royalty Panels, and also those of the Librarian of Congress assembled 
and/or created under 17 U.S.C. 801 and 802, are available for public 
inspection and copying. Thus, for example, rulings or decisions of the 
Librarian made before the convening of an Arbitration Panel would be 
publicly available.
    The same difficulties raised by adoption of a single official 
address, as discussed above, also arise with respect to the location of 
documents. While all filings with a CARP required by the proposed rules 
must be submitted through the Copyright Office, certain documents other 
than filings may, during the course of a proceeding, be in the sole 
possession of a Panel. Example are a document admitted into evidence 
during the course of a hearing to impeach the testimony of a witness, 
or the transcript of an ongoing proceeding. Section 251.22 therefore 
specifies that all documents and records in the sole possession of a 
Copyright Arbitration Royalty Panel and not required to be filed with 
the Copyright Office may be maintained by the chairperson at the 
location of the hearing, or at a location specified by the Panel. All 
requests for access, however, must be directed to the Copyright Office, 
and not the Arbitration Panel. In the case of documents solely in the 
possession of the Panel, the Copyright Office shall made arrangements 
to allow the person making the request to inspect and copy them. The 
schedule of fees for services of this sort are those currently charged 
by the Copyright Office for like services.
    Because the Copyright Office already has its own Freedom of 
Information Act and Privacy Act guidelines, see 37 CFR parts 203 and 
204, it is not adopting the former Tribunal regulations related to 
those Acts. The Office acknowledges that some adjustments to those 
rules may be required by the peculiarities of the Copyright Arbitration 
Royalty Panel system, but we believe there should be some practical 
experience before we identify any necessary changes.
4. Subpart D--Standards of Conduct\4\
    The Office is not proposing any regulations at this time, but as 
part of this proceeding we are inquiring as to standards of conduct 
that should apply to the arbitrators.
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    \4\The Copyright Office is proposing to repeal subpart D, as it 
appeared in the former Tribunal's rules, and replace it with rules 
governing standards of conduct for arbitrators. Former subpart D 
contained Equal Employment Opportunity provisions for the Tribunal, 
which are no longer relevant for CARPs since they are without 
authority to hire personnel or maintain a staff.
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5. Subpart E--Procedures of Copyright Arbitration Royalty Panels
    As with so many of the rules of this subchapter, the new bifurcated 
system of the Reform Act requires some changes in the former Tribunal's 
rules governing the conduct of proceedings. Nevertheless, although 
consequential adjustments are needed, we believe that the over-all 
system of procedures long used by the Tribunal in rate adjustment and 
distribution proceedings have served the public interest well and 
should be preserved. Maintaining the Tribunal's system to the extent 
possible should reduce the learning process for parties that have 
appeared before the former Tribunal for many years and should also, we 
hope, avoid some confusion.
    Application of CARPs Procedures and Practice. For the most part the 
hearing procedures and motions practice applicable to the CARPs are 
carried over from those of the former Tribunal. Section 251.40 
specifies that the procedural rules of this subpart E apply only to the 
Copyright Arbitration Royalty Panels and not to the actions of the 
Librarian or the Copyright Office, unless otherwise expressly provided 
in this subpart. The section also states that subpart E only applies to 
CARPs, and not to other arbitration proceedings under the Copyright 
Code. The Office is not statutorily required to apply these rules to 
other arbitration proceedings. Although it is possible that some or all 
of these rules may ultimately be adopted for other arbitration 
purposes; the statement clarifies the issue as of now and grants the 
Office flexibility in making future decisions on the point.
    Formal Hearings and Other CARP Proceedings. Section 251.41 direct 
the Panels to conduct formal hearings for rate adjustment and royalty 
distribution proceedings. All parties intending to participate in a 
hearing must file a notice of their intention to do so. The Panels are 
also allowed to conduct other proceedings in the exercise of their 
basic functions, subject to section 251.7. For example, in the course 
of a distribution controversy, a legal issue may arise which requires 
resolution before the proper distribution can be determined. The Panel 
could conduct a proceeding to resolve that issue, which would be part 
of its function in determining the distribution. It may also happen 
that resolution of the legal question will permit the parties to the 
proceeding to settle their differences, thereby avoiding the need for a 
Panel distribution determination. The Panel, however, is still subject 
to section 251.7, and could not conduct a rulemaking proceeding 
affecting any provisions of subpart E. Section 251.41 also recognizes 
that, in the interest of reducing the expense of litigation, some 
parties may wish to have their royalty entitlement or rate determined 
solely by written submissions, and a procedure for petitioning the 
Librarian to have a ``paper'' proceeding is provided.
    Suspension or Waiver of Rules; Ad Hoc Procedures. As noted above, 
although it is clear that the Arbitration Panels have no rulemaking 
authority, section 251.42 authorizes them to waive or suspend the rules 
of subpart E for purposes of a particular proceeding. This carries on a 
practice formerly used by the Tribunal, and allows the Panels 
flexibility in addressing the specific conditions and circumstances of 
each proceeding; if the Panels were not allowed this flexibility, the 
resulting procedural rigidity could produce injustices. In cases where 
subpart E is silent as to the correct procedure to be observed, the 
Panel may follow its own procedures, as long as they are consistent 
with the Administrative Procedure Act. However, as with suspension or 
waiver, the ad hoc procedures adopted by that Panel apply only to that 
particular proceeding and that particular Panel.
    Institution of Proceedings. As was the case with the former 
Tribunal, proceedings before a Panel begin with the filing of the 
written direct case. Section 251.43 specifies that the written direct 
case must include all testimony and exhibits, complete with proper 
referencing. Each party submitting a written direct case must specify 
its requested royalty rate or percentage of the royalty pool, whichever 
is applicable. No evidence may be submitted in the direct written case 
without a sponsoring witness or official notice, unless good cause is 
shown. Section 251.43 also gives Copyright Arbitration Royalty Panels 
discretion in setting the time for the filing of written rebuttal cases 
after the conclusion of the hearing.
    Filing and Service of Written Cases and Pleadings. Section 251.44 
governs the filing and service of written cases and pleadings. The 
division of authority, together with the possible differences in the 
location of the Copyright Office and the places where the CARPs hold 
their hearings, require special filing and service requirements. The 
former Tribunal could maintain all records and evidence at one 
location, but this is not possible under the new system. Section 
251.44(a), therefore, requires that an original and three copies of all 
filings made to a Panel be submitted in such manner as the Panel shall 
direct. As was discussed above in connection with the official mailing 
address, location of arbitration proceedings is likely to change, and 
the circumstances surrounding mail delivery and receipt could be 
uncertain. Section 251.44(a) allows the Panels flexibility to deal with 
this problem by allowing them to establish the means of delivery, 
whether it be by direct hand delivery, delivery to a specified address, 
or establishment of a temporary post office box. The parties submitting 
filings, however, are still required to deliver one copy of their 
pleading or filing to the Copyright Office at its official address. In 
the case of large or bulky filings, a Panel may reduce the number of 
copies it requires, but a complete copy must nonetheless be submitted 
to the Copyright Office.
    Section 251.44(b) prescribes the requirements with respect to all 
filings with the Librarian of Congress--that is motions and pleadings 
filed with the Librarian in accordance with these proposed rules both 
before and after the CARP proceedings. Under the proposed rule, each 
party must file an original and five copies with the Copyright Office. 
Section 251.44 also maintains the English-language translation, 
affidavit, subscription and verification, and service requirements of 
the former Tribunal.
    Precontroversy Discovery. Section 251.45 significantly expands the 
scope of permitted discovery in arbitration proceedings. In his 
statement accompanying H.R. 2840. Representative William Hughes, 
Chairman of the House Subcommittee on Intellectual Property and 
Judicial Administration of the House Committee on the Judiciary, 
commented favorably on the use of precontroversy discovery and exchange 
of information. See 139 Cong. Rec. H10973 (daily ed. Nov. 22, 1993) 
(``In order to reduce the amount of actual litigation time, and thereby 
reduce expenses, I encourage the Librarian to promulgate regulations 
permitting exchange of information before the tolling of the 180-day 
decision period, and, to the extent practicable, generally to permit 
precontroversy discovery.''). Section 251.45 is proposed to explore the 
efficacy of Chairman Hughes' recommendation. We particularly seek 
comments on the scope of such precontroversy discovery: whether it 
should include interrogatories of witnesses as well as production of 
supporting documents, and whether it would advance Chairman Hughes' 
goal of reducing costs by being able to stipulate facts and remove 
issues, or whether the additional procedures might add costs to the 
proceeding.
    In the case of royalty distribution proceedings, the proposed rule 
directs the Librarian to designate a period for precontroversy 
discovery and exchange of documents. This period is to start after the 
filing of claims and to end at the declaration of a controversy, and is 
the same time period referred to by section 251.4(b) for the filing of 
objections to arbitrators. In the case of rate adjustment proceedings, 
the period for precontroversy discovery and exchange of documents 
corresponds with the 90-day consideration period for all rate 
adjustment petitions and proceedings specified by Sec. 251.63.
    All parties to a proceeding may voluntarily exchange documents 
during this time, or may make discovery requests. Failure to respond to 
requests, and any other discovery controversies or issues, will be 
resolved by the Librarian. All other objections to royalty claims or 
petitions, or motions for procedural or evidentiary rulings, shall also 
be submitted to the Librarian for decision during the same time period. 
All parties to the proceeding will be given 14 days in which to respond 
to a motion or objection, regardless of whether or not this 14-day 
period goes beyond the time periods specified in subsection (a). The 
Librarian, after consultation with the Register, shall rule on all 
motions or objections timely submitted, and will not declare a 
controversy and initiate arbitration proceedings until all rulings have 
been made. See 17 U.S.C. 801(c).
    Discovery and Motions during Proceedings. Section 251.45(c) 
prescribes a similar procedure for exchanging documents and motions and 
objections filed with a Panel once a proceeding beings. The Panel must 
designate a period for discovery with respect to both the written 
direct and rebuttal cases. No time limits are set on the length of the 
discovery periods--although, given the Panel's 180-day existence, the 
deadline will necessarily be short.
    After the filing of written cases, either direct or rebuttal, any 
party may file objections. If an objection is apparent on the face of 
the written case, it must be raised or may thereafter be considered 
waived. Section 251.45(d) allows each party whose claim, petition, 
written case or direct evidence is the subject of an objection, either 
before the Librarian or a Copyright Arbitration Royalty Panel, to amend 
its filing to respond to the objection. The Librarian or the Panel may 
also request that such amended filing be made where necessary. All 
parties will be given a reasonable period of time to conduct discovery 
on the amended filing.
    Conduct of Hearings. Sections 251.46 through 251.48 are adopted 
nearly intact from the former Tribunal's rules. Section 251.46 
describes the role of the arbitrators and the chairperson during the 
course of a hearing. Section 251.47 describes the course of proceedings 
once a hearing has begun, and section 251.48 prescribes the rules of 
evidence. Only conforming changes have been made to these sections.
    Transcript and Record. Section 251.49 governs transcription of the 
hearings and creation of the record. The Librarian shall, from time to 
time, designate an official reporter to transcribe the hearings of any 
arbitration proceedings taking place during that time. Since 
arbitration proceedings are likely to take place in different 
locations, the location of the transcript will not always be at a fixed 
site. Therefore, the chairperson is directed to specify the location of 
the transcript for public inspection. It is anticipated that the 
location will usually correspond to that of the hearing, although this 
may not always be the case. Once the arbitration proceeding is 
concluded, the transcript, along with the full written record, will be 
delivered to the Librarian and may be viewed at the Copyright Office.
    Rulings and Orders. Section 251.50 gives CARPs the authority to 
issue rules and orders necessary to the resolution of the proceedings. 
Once again, the absence of the Panels' authority to issue rulemakings 
amending, superseding, or supplementing the rules and regulations of 
this Subchapter is underscored.
    Closing Hearings; Submission of Findings and Conclusions; Report. 
Section 251.51, with respect to closing the hearing, and section 
251.52, on submission of proposed findings and conclusions, are adopted 
intact from the former Tribunal's rules, with conforming amendments.
    Section 251.53 essentially codifies the provisions of 17 U.S.C. 
802(e) governing the report of Copyright Arbitration Royalty Panels to 
the Librarian of Congress. The determination of a Panel is to be 
certified and signed by all the arbitrators, and any written dissent is 
to be certified and signed by the dissenting arbitrator. Panels must 
distribute copies of their determination to all participating parties.
    Assessment of Costs of Panels. Section 251.54 governs the 
assessment of costs by Copyright Arbitration Royalty Panels.\5\ It 
implements new section 802(c) of the Copyright Act which states:

    \5\Assessment of costs by the Library and the Copyright Office 
---------------------------------------------------------------------------
are addressed in Secs. 251.65 and 251.74.

    In ratemaking proceedings, the parties to the proceedings shall 
bear the entire cost thereof in such manner and proportion as the 
Arbitration Panels shall direct. In distribution proceedings, the 
parties shall bear the cost in direct proportion to their share of 
---------------------------------------------------------------------------
the distribution.

After the conclusion of an arbitration proceeding, the Panel will 
assess its costs in accordance with the above-described proportions. 
The chairperson will deliver a statement to each participating party 
listing the Panel's total costs, the party's individual share, and the 
amount due to each arbitrator from that party. Payment is to be made to 
each arbitrator, as provided in the statement, and must be made either 
by money order, check, or bank draft. Failure to submit timely payment 
will subject the party to the provisions of the Debt Collection Act of 
1982.
    Post-Panel Motions; Order of the Librarian; Effective Date; 
Appeals. After the arbitration process has concluded and the Panel has 
delivered its report, the Reform Act requires that the Librarian of 
Congress review the sufficiency of the Panel's determination within 60 
days of receipt of the report. Section 251.55 grants the parties to the 
proceeding 14 days in which to file petitions with the Librarian 
requesting that the determination be modified or set aside, and an 
additional 14 days to reply to such petitions. The petitioner must 
clearly state its reasons for the modification or reversal, and include 
applicable portions of its proposed findings of fact and conclusions of 
law. After the four-week period has run, the Librarian will proceed to 
a decision on the Panel's report. Section 251.56 essentially codifies 
the review process described in 17 U.S.C. 802(f), with the Librarian 
publishing the order of his/her decision in the Federal Register and 
delivering it to all the parties to the proceeding. The order is to be 
effective 30 days after its publication in the Federal Register, unless 
an appeal is taken (Sec. 251.57). The appeals process described in 
Sec. 251.58 comes directly from 17 U.S.C. 802(g).
6. Subpart F--Rate Adjustment Proceedings
    The basic procedural mechanics of an arbitration proceeding are 
described in Subpart E, but the different nature of rate adjustment 
proceedings in comparison with that of distribution proceedings calls 
for additional separate requirements. Subpart F contains those 
requirements for rate adjustment proceedings.
    Scope of Subpart F.  Section 251.60 describes the scope of Subpart 
F, emphasizing that it applies only to rate adjustment proceedings and 
that it augments the rules of Subpart E. In circumstances where one or 
more provisions of Subpart E and F are inconsistent, section 251.60 
makes clear that Subpart F is controlling.
    Commencement of Proceedings; Content of Petitions. Section 251.61 
describes the commencement of adjustment proceedings for the applicable 
compulsory licenses. Adjustment is either automatic, as in the case of 
non-commercial broadcasting, or by petition, as in the cases of cable, 
phonorecords, jukeboxes, and audio home recording devices and media. 
The section implements the changes made by the Reform Act with respect 
to the dates when proceedings begin or when petitions may be filed. 
Thus, cable rate adjustment petitions may be filed in 1995 and every 5 
years thereafter; those for phonorecords in 1997 and every 10 years 
thereafter; those for jukeboxes within one year of termination or 
expiration of a negotiated license; and those for audio home recording 
devices and media from October 29, 1997 to October 28, 1998 and not 
more than once a year thereafter. In the case of noncommercial 
educational broadcasting, the Librarian will publish notice of 
initiation of arbitration proceedings on June 30, 1997, and every 5 
years thereafter. Section 251.62 adopts the former Tribunal's rules 
governing the content of a petition.
    Period for Consideration. Section 251.63 is an important provision. 
Although it adopts the 90-day ``cooling off'' period used by the 
Tribunal to facilitate settlements after the filing of a petition, or 
prior to a non-commercial educational broadcasting rate adjustment, the 
90-day period is significant for other purposes. This same 90-day 
period is used to conduct precontroversy discovery and exchange of 
documents (Sec. 251.45), and to file objections to names on the 
arbitrator list (Sec. 251.4). The Librarian will designate the 90-day 
period for consideration by publishing notice in the Federal Register, 
including the effective beginning and ending dates of that period.
    Disposition of Petition; Initiation of Proceeding. After the 
expiration of the 90-day period, and after the Librarian has resolved 
all motions submitted during that period, section 251.64 prescribes 
that the Librarian will determine the sufficiency of the rate 
adjustment petition. If the petition is sufficient, the Librarian will 
publish in the Federal Register a declaration of a controversy and, at 
the same time, a notice of initiation of an arbitration proceeding. The 
same declaration and notice of initiation shall be done for 
noncommercial educational broadcasting in accordance with 17 U.S.C. 
118(b) and (c). The declaration and notice of initiation will commence 
the 180-day period for proceedings described in 17 U.S.C. 802.
    Deduction of Costs. The final section of Subpart F, Sec. 251.65, 
implements section 802(h)(1) of the Copyright Act which allows the 
Copyright Office and the Library to assess their reasonable costs for 
the rate adjustment proceeding directly to the participating parties. 
These costs include any administrative services provided under U.S.C. 
801(d).
7. Subpart G--Royalty Fee Distribution Proceedings
    Subpart G is like Subpart F in that it prescribes additional 
procedural requirements inherent in certain royalty distribution 
proceedings. There are three compulsory licenses that require royalty-
fee distributions: cable, satellite and digital audio. Section 251.70 
states that the provisions of Subpart G apply to these licenses, and 
underscores that, in the case of inconsistencies, Subpart G takes 
precedence over Subpart E.
    Commencement of Proceedings; Determination of Controversy. Section 
251.71 describes the commencement of distribution proceedings by 
prescribing the time period for the filing of royalty claims.\6\ In the 
case of cable, claims must be filed during the month of July; for 
satellite during July; and for digital audio during January and 
February. Under section 251.72, after the filing of claims as 
prescribed by 17 U.S.C. Secs. 111(d)(4)(B) (cable). 119(b)(4)(B) 
(satellite carrier), and 1007(b) (digital audio), the Librarian must 
determine whether a controversy exists. The Librarian may issue 
requests for information or conduct hearings to assist in determining 
the existence of a controversy, with notice of the proceedings to be 
published in the Federal Register.
---------------------------------------------------------------------------

    \6\The procedures for filing claims are described in Parts 252, 
256, and 258.
---------------------------------------------------------------------------

    Declaration of Controversy; Initiation of Proceeding. Once the 
Librarian has determined that controversy exists, he/she shall publish 
in the Federal Register a declaration of controversy along with a 
notice of initiation of arbitration. The notice is to include a 
description of the nature, structure and schedule of the proceeding.
    Deduction of Costs. Section Sec. 251.74 is the royalty-distribution 
counterpart of Sec. 251.65; it allows the Library and the Copyright 
Office to deduct their reasonable costs incurred as a result of a 
distribution proceeding. These expenses include administrative services 
provided under 17 U.S.C. 801(d).

B. Part 252--Filing of Claims to Cable Royalty Fees

    Part 252 prescribes the filing requirements for claims to cable 
royalties. The Part significantly revises the former Tribunal's rules 
governing the filing of cable claims by implementing a procedural 
system similar to that adopted by the Tribunal for the filing of 
digital audio claims. See 58 FR 53822 (1993). Section 252.1 defines the 
scope of Part 252.
    Time of Filing. Section 252.2 specifies the time of filing for 
cable claims. Claims for cable royalties from the preceding calendar 
year must be filed during the month of July, and no distribution will 
be made to any party failing to make a timely filing. Cable claims may 
be filed jointly or singly as the submitting parties choose.
    Content of Claims. Section 252.3 describes the required content of 
a claim, and is more detailed than the former Tribunal's requirements. 
The Copyright Office is not yet prepared to issue claimant forms, and 
each claimant must therefore take care to insure that information 
meeting all the requirements of section 252.3 is contained in each 
claim. Each claim must state the full legal name of the claimant, and 
its address, telephone number and facsimile number, if any. The 
claimant must also identify at least one of its copyrighted works that 
was subject to a secondary transmission by a cable system in the 
previous calendar year, thereby establishing a basis for a claim to 
royalties. If the claim is a joint claim, there must be a concise 
statement of the authorization for filing the joint claim. For this 
purpose, performing rights societies will not be required to obtain 
separate authorizations from their individual members beyond their 
standard agreements.
    All claims must be signed by the claimant or a duly authorized 
representative, and the Copyright Office must be notified of name and/
or address changes within 30 days of the change. Failure to notify the 
Office in a timely fashion is grounds for dismissal of the claim. If a 
party submitting an individual claim wishes to change it to a joint 
claim, the Office must be notified within 14 days of the agreement to 
submit a joint claim. All joint claimants must make available to the 
Copyright Office and, if applicable, to a Copyright Arbitration Royalty 
Panel--a list of all individual claimants covered by the joint claim.
    Compliance With Statutory Dates. Section 252.4 underscores the 
importance of complying with the July filing period. A claim is 
considered timely filed if it is received by the Copyright Office 
during normal business hours in July, or is properly addressed to the 
Copyright Office with correct postage and bears a July U.S. postmark. 
Claims dated only with a business meter and not received in July are 
untimely. Absolutely no claim will be accepted if it is filed by 
facsimile transmission.
    Proof of Fixation. Finally, section 252.5 clarifies that the 
Copyright Office will not require claimants to file copies of their 
works. In the event that the issue of fixation arises, the CARP 
conducting the proceeding will resolve the controversy on the basis of 
affidavits and other appropriate documentary evidence. No affidavits 
need be submitted, however, unless requested by the Panel.

C. Parts 253-256

    Parts 253 through 256 adopt, with only minor technical changes, the 
provisions of the former Tribunal's regulations for use of copyrighted 
works by noncommercial educational broadcasters, adjustment of royalty 
rates for phonorecord players (jukeboxes), adjustment of royalty rates 
for making and distributing phonorecords, and adjustment of royalty 
rates for the cable compulsory license. These actions contain current 
royalty rates, as adopted by the Tribunal, and will be amended by the 
Copyright Office in the future as new rates are set by a Copyright 
Arbitration Royalty Panel or the Librarian of Congress, as the case may 
be.
    In adopting Parts 253-256, several regulations of the former 
Tribunal are being repealed. Former Part 303, entitled ``Access to 
Phonorecord Players (Jukeboxes)'' is repealed, as is former Part 305, 
``Claims to Phonorecord Player (Jukebox) Royalty Fees.'' The need for 
these parts was eliminated by the Reform Act's repeal of the section 
116 jukebox compulsory license and replacement with section 116A 
governing negotiated licenses. The need for former Tribunal Part 306, 
however, was not eliminated since it contains royalty rates applicable 
to periods dating back to January 1, 1982. These rates must be 
preserved, even though the compulsory license has now been eliminated 
for future years, in the event that parties making use of copyrighted 
works during the periods covered by the license may now, or in the 
future, make initial or supplementary payments. Part 254 therefore 
adopts Part 306 of the former Tribunal's rules, with only one minor 
technical change.

D. Part 257--Filing of Claims to Satellite Carrier Royalty Fees

    Part 257 implements exactly the same requirements for 17 U.S.C. 119 
satellite carrier royalty claims that Part 252 adopts for cable claims. 
Like those for cable, claims in these cases must be filed during the 
month of July, and may be filed singly or jointly. Section 257.6 makes 
it clear that, although cable and satellite have the same filing 
period, separate claims must be filed by a party seeking both cable and 
satellite royalty fees for the same calendar year. Any single claim 
which attempts to file for both royalty funds will be dismissed.

E. Parts 258-259

    Parts 258 and 259 govern the adjustment of royalty fees for the 
satellite carrier compulsory license and the filing of digital audio 
claims, respectively. These two parts adopt Parts 310 and 311 of the 
former Tribunal's rules with only minor technical changes.

List of Subjects

37 CFR Parts 251 and 301

    Administrative practice and procedure, Hearing and appeal 
procedures.

37 CFR Parts 252 and 302

    Cable television, Claims, Copyright.

37 CFR Parts 253 and 304

    Copyright, Music, Radio, Rates, Television.

37 CFR Parts 254 and 306

    Copyright, Jukeboxes, Rates.

37 CFR Parts 255 and 307

    Copyright, Music, Recordings.

37 CFR Parts 256 and 308

    Cable television, Rates.

37 CFR Parts 257 and 309 
    Cable television, Claims. 
37 CFR Parts 258 and 310 
    Copyright, Satellite. 
37 CFR Parts 259 and 311 
    Claims, Copyright, Digital audio recording devices and media.

37 CFR Parts 303

    Copyright, Jukeboxes.

37 CFR Parts 305

    Claims, Jukeboxes.

Proposed Rules

    For the reasons set out in the preamble, 37 CFR Chapters II and III 
are proposed to be amended under authority of 17 U.S.C. 802(d) as 
follows:
    1. Part 301 of Chapter III is removed.
    1a. New Subchapter A--Copyright Office Rules and Procedures--is 
added to chapter II consisting of Parts 201-211.
    1b. New Subchapter B--Copyright Arbitration Royalty Panel Rules and 
Procedures--is added to chapter II consisting of Parts 251-259.
    2. A new part 251 is added to subchapter B of Chapter II to read as 
follows:

PART 251--COPYRIGHT ARBITRATION ROYALTY PANEL RULES OF PROCEDURE

Subpart A--Organization

Sec.
251.1  Official Address.
251.2  Purpose of Copyright Arbitration Royalty Panels.
251.3  Arbitrator lists.
251.4  Arbitrator lists: Objections.
251.5  Qualifications of the arbitrators.
251.6  Composition and selection of Copyright Arbitration Royalty 
Panels.
251.7  Actions of Copyright Arbitration Royalty Panels.

Subpart B--Public Access to Copyright Arbitration Royalty Panel 
Meetings

251.11  Open meetings.
251.12  Conduct of open meetings.
251.13  Closed meetings.
251.14  Procedure for closed meetings.
251.15  Transcripts of closed meetings.
251.16  Requests to open or close meetings.

Subpart C--Public Access to and Inspection of Records

251.21  Public records.
251.22  Public access.
251.23  FOIA and Privacy Act [Reserved].

Subpart D--Standards of Conduct [Reserved]

Subpart E--Procedures of Copyright Arbitration Royalty Panels

251.40  Scope.
251.41  Formal hearings.
251.42.  Suspension or waiver of rules.
251.43  Written cases.
251.44  Filing and service of written cases and pleadings.
251.45  Discovery and prehearing motions.
251.46  Conduct of hearings: Role for arbitrators.
251.47  Conduct of hearings: Witnesses and counsel.
251.48  Rules of evidence.
251.49  Transcript and record.
251.50  Rulings and orders.
251.51  Closing the hearing.
251.52  Proposed findings and conclusions.
251.53  Report to the Librarian of Congress.
251.54  Assessment of costs of Arbitration Panels.
251.55  Post-Panel motions.
251.56  Order of the Librarian of Congress.
251.57  Effective date of order.
251.58  Judicial review.

Subpart F--Rate Adjustment Proceedings

251.60  Scope.
251.61  Commencement of adjustment proceedings.
251.62  Content of petition.
251.63  Period for consideration.
251.64  Disposition of petition: Initiation of arbitration 
proceeding.
251.65  Deduction of costs of rate adjustment proceedings.

Subpart G--Royalty Fee Distribution Proceedings

251.70  Scope.
251.71  Commencement of proceedings.
251.72  Determination of controversy.
251.73  Declaration of controversy: Initiation of arbitration 
proceeding.
251.74  Deduction of costs of distribution proceedings.

    Authority: 17 U.S.C. 801-803.

Subpart A--Organization


Sec. 251.1  Official address.

Copyright Office, Copyright Arbitration Royalty Panels, Library of 
Congress, Washington, DC 20557-6400, (202) 707-8150


Sec. 251.2  Purpose of Copyright Arbitration Royalty Panels.

    The Librarian of Congress, upon the recommendation of the Register 
of Copyrights, may appoint and convene a Copyright Arbitration Royalty 
Panel (CARP) for the following purposes:
    (a) To make determinations concerning copyright royalty rates for 
the cable compulsory license, 17 U.S.C. 111.
    (b) To make determinations concerning copyright royalty rates for 
the making and distributing of phonorecords, 17 U.S.C. 115.
    (c) To make determinations concerning copyright royalty rates for 
coinoperated phonorecord players (jukeboxes) whenever a negotiated 
license authorized by 17 U.S.C. 116 expires or is terminated and is not 
replaced by another such license agreement.
    (d) To make determinations concerning royalty rates and terms for 
the use by noncommercial educational broadcast stations of certain 
copyrighted works, 17 U.S.C. 118.
    (e) To distribute cable television, satellite carrier and digital 
audio recording devices and media royalty fees under 17 U.S.C. 111, 
119, and chapter 10, respectively, deposited with the Register of 
Copyrights.


Sec. 251.3  Arbitrator lists.

    (a) Any professional arbitration association or organization may 
submit, before March 1, 1994 and before January 1 of each year 
thereafter, a list of its members qualified to serve as arbitrators on 
a Copyright Arbitration Royalty Panel. Such list shall contain the 
following for each member:
    (1) The full name, address and telephone number of the member.
    (2) The current position and name of the member's employer, if any, 
along with a brief summary of the member's employment history.
    (3) A brief description of the educational background of the 
member, including teaching positions and membership in professional 
associations, if any.
    (4) A description of the facts and information which qualify the 
member to serve as an arbitrator under Sec. 251.4.
    (5) Any other information which the professional arbitration 
association or organization may consider relevant.
    (b) After March 1, 1994, and after January 1 of each year 
thereafter, the Librarian of Congress shall publish in the Federal 
Register a list of all the members of professional arbitration 
associations and organizations submitted to the Librarian who satisfy 
the qualifications and requirements of this subchapter and can 
reasonably be expected to be available to serve as an arbitrator to a 
Copyright Arbitration Royalty Panel during that calendar year.


Sec. 251.4  Arbitrator lists: Objections.

    (a) In the case of a rate adjustment proceeding, any party to the 
proceeding may, during the 90-day period specified in Sec. 251.63, file 
an objection with the Librarian of Congress to one or more of the 
persons contained on the arbitrator list for that proceeding. Such 
objection shall plainly state the grounds and reasons for each person 
found to be objectionable.
    (b) In the case of a royalty distribution proceeding, any party to 
the proceeding may, during the time specified in Sec. 251.45(a), file 
an objection with the Librarian of Congress to one or more of the 
persons contained on the arbitrator list for the proceeding. Such 
objection shall plainly state the grounds and reasons for each person 
found to be objectionable.


Sec. 251.5  Qualifications of the arbitrators.

    In order to serve as an arbitrator to a copyright arbitration 
panel, a person must, at a minimum, have the following qualifications:
    (a) Membership in a bar association of any state, territory, trust 
territory or possession of the United States.
    (b) Ten or more years of legal practice.
    (c) Experience in conducting arbitration proceedings or 
facilitating the resolution and settlement of disputes.


Sec. 251.6  Composition and selection of Copyright Arbitration Royalty 
Panels.

    (a) Within 10 days after publication of a notice in the Federal 
Register initiating arbitration proceedings under this subchapter, the 
Librarian of Congress shall, upon recommendation of the Register of 
Copyrights, select 2 arbitrators from lists provided by professional 
arbitration associations.
    (b) The 2 arbitrators so selected shall, within 10 days of their 
selection, choose a third arbitrator from the same lists. The third 
arbitrator shall serve as the chairperson of the Panel during the 
course of the proceedings.
    (c) If the 2 arbitrators fail to agree upon the selection of the 
third, the Librarian shall promptly select the third arbitrator from 
the same lists.
    (d) The third arbitrator so chosen shall serve as the chairperson 
of the Panel during the course of the proceeding. In all matters, 
procedural or substantive, the chairperson shall act according to the 
majority wishes of the Panel.
    (e) If for any reason one or more of the arbitrators selected by 
the Librarian is unable to serve during the course of the proceedings, 
the Librarian shall promptly appoint a replacement: Provided, that once 
hearings have commenced, no such appointment shall be made and the 
remaining arbitrators shall constitute a quorum necessary to the 
determination of the proceeding.


Sec. 251.7  Actions of Copyright Arbitration Royalty Panels.

    Any action of a Copyright Arbitration Royalty Panel requiring 
publication in the Federal Register according to 17 U.S.C. or the rules 
and regulations of this subchapter shall be published under the 
authority of the Librarian of Congress and the Register of Copyrights. 
Under no circumstances shall a CARP engage in rulemaking designed to 
amend, supplement or supersede any of the rules and regulations of this 
subchapter, or seek to have any such action published in the Federal 
Register.

Subpart B--Public Access to Copyright Arbitration Royalty Panel 
Meetings


Sec. 251.11  Open meetings.

    (a) All meetings of a Copyright Arbitration Royalty Panel shall be 
open to the public, with the exception of meetings that are listed in 
Sec. 251.13.
    (b) At the beginning of each proceeding, the CARP shall develop the 
original schedule of the proceeding which shall be published in the 
Federal Register at least 7 calendar days in advance of the first 
meeting. Such announcement shall state the times, dates, and place of 
the meetings, the testimony to be heard, whether any of the meetings 
are to be closed, and, if so, which ones, and the name and telephone 
number of the person to contact for further information.
    (c) If changes are made to the original schedule, they will be 
announced in open meeting and issued as orders to the parties 
participating in the proceeding, and the changes will be noted in the 
docket file of the proceeding. In addition, the contact person for the 
proceeding shall make any additional efforts to publicize the change as 
are practicable.
    (d) If it is decided that the publication of the original schedule 
must be made on shorter notice than 7 days, that decision must be made 
by a recorded vote of the Panel and included in the announcement.


Sec. 251.12  Conduct of open meetings.

    (a) Meetings of a Copyright Arbitration Royalty Panel will be 
conducted in a manner to insure both the public's right to observe and 
the ability of the Panel to conduct its business properly. The 
chairperson will take whatever measures necessary to achieve that 
purpose.
    (b) The right of the public to be present does not include the 
right to participate or make comments.
    (c) Reasonable access for news media will be provided at all public 
sessions, as long as it does not interfere with the comfort or 
efficiency of the arbitrators or witnesses. Cameras will be admitted 
only on the authorization of the chairperson, and no witness may be 
photographed or have his or her testimony recorded for broadcast if he 
or she objects.


Sec. 251.13  Closed meetings.

    In the following circumstances, a Copyright Arbitration Royalty 
Panel may close its meetings or withhold information from the public:
    (a) If the matter to be discussed has been specifically authorized 
to be kept secret by Executive Order, in the interests of national 
defense or foreign policy; or
    (b) If the matter relates solely to the internal practices of a 
Copyright Arbitration Royalty Panel; or
    (c) If the matter has been specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552) and there is no discretion on the 
issue; or
    (d) If the matter involves privileged or confidential trade secrets 
or financial information; or
    (e) If the result might be to accuse any person of a crime or 
formally censure him or her; or
    (f) If there would be clearly unwarranted invasion of personal 
privacy; or
    (g) If there would be disclosure of investigatory records compiled 
for law enforcement, or information that if written would be contained 
in such records, and to the extent disclosure would:
    (1) Interfere with enforcement proceedings; or
    (2) Deprive a person of the right to a fair trial or impartial 
adjudication; or
    (3) Constitute an unwarranted invasion of personal privacy; or
    (4) Disclose the identity of a confidential source or, in the case 
of a criminal investigation or a national security intelligence 
investigation, disclose confidential information furnished only by a 
confidential source; or
    (5) Disclose investigative techniques and procedures; or
    (6) Endanger the life or safety of law enforcement personnel.
    (h) If premature disclosure of the information would frustrate a 
Copyright Arbitration Royalty Panel's action, unless the Panel has 
already disclosed the concept or nature of the proposed action, or is 
required by law to make disclosure before taking final action; or
    (i) If the matter concerns a CARP's participation in a civil action 
or proceeding or in an action in a foreign court or international 
tribunal, or an arbitration, or a particular case of formal agency 
adjudication pursuant to 5 U.S.C. 554, or otherwise involving a 
determination on the record after opportunity for a hearing; or
    (j) If a motion or objection has been raised in an open meeting and 
the Panel determines that it is in the best interest of the proceeding 
to deliberate on such motion or objection in closed session.


Sec. 251.14  Procedure for closed meetings.

    (a) Meetings may be closed, or information withheld from the 
public, only by a recorded vote of a majority of arbitrators of a 
Copyright Arbitration Royalty Panel. Each question, either to close a 
meeting or to withhold information, must be voted on separately, unless 
a series of meetings is involved, in which case the Panel may vote to 
keep the discussions closed for 30 days, starting from the first 
meetings. If the panel feels that information about a closed meeting 
must be withheld, the decision to do so must also be the subject of a 
recorded vote.
    (b) Before a discussion to close a meeting or withhold information, 
the chairperson of a CARP must certify that such an action is 
permissible, and the chairperson shall cite the appropriate exemption 
under Sec. 251.13. This certification shall be included in the 
announcement of the meeting and be maintained as part of the record of 
proceedings of the Panel.
    (c) Following such a vote, the following information shall be 
published in the Federal Register as soon as possible:
    (1) The vote of each arbitrator; and
    (2) The appropriate exemption under Sec. 251.13; and
    (3) A list of all persons expected to attend the meeting and their 
affiliation.


Sec. 251.15  Transcripts of closed meetings.

    (a) All meetings closed to the public shall be subject either to a 
complete transcript or, in the case of Sec. 251.13(h) and at the 
discretion of the Copyright Arbitration Royalty Panel, detailed 
minutes. Detailed minutes shall describe all matters discussed, 
identify all documents considered, summarize action taken as well as 
the reasons for it, and record all roll call votes as well as any views 
expressed.
    (b) Such transcripts or minutes shall be kept by the Copyright 
Office for at least 2 years, or for at least 1 year after the 
conclusion of the proceedings, whichever is later. Any portion of 
transcripts of meetings which the chairperson of a CARP does not feel 
is exempt from disclosure under Sec. 251.13 will ordinarily be 
available to the public within 20 working days of the meeting. 
Transcripts or minutes of closed meetings will be reviewed by the 
chairperson at the end of the proceedings of the Panel and, if at that 
time he or she determines that they should be disclosed, he or she will 
resubmit the question to the Panel to gain authorization for their 
disclosure.


Sec. 251.16  Requests to open or close meetings.

    (a) Any person may request a Copyright Arbitration Royalty Panel to 
open or close a meeting or disclose or withhold information. Such 
request must be captioned ``Request to Open'' or ``Request to Close'' a 
meeting on a specified date concerning a specific subject. The person 
making the request must state his or her reasons, and include his or 
her name, address, and telephone number.
    (b) In the case of a request to open a meeting that a CARP has 
previously voted closed, the Panel must receive the request within 3 
working days of the meeting's announcement. Otherwise the request will 
not be heeded, and the person making the request will be so notified. 
An original and three copies of the request must be submitted.
    (c) For a CARP to act on a request to open or close a meeting, the 
question must be brought to a vote before the Panel. If the request is 
granted, an amended meeting announcement will be issued and the person 
making the request notified. If a vote is not taken, or if after a vote 
the request is denied, said person will also be notified promptly.

Subpart C--Public Access to and Inspection of Records


Sec. 251.21  Public records.

    (a) All official determinations of a Copyright Arbitration Royalty 
Panel will be published in the Federal Register in accordance with 
Sec. 251.7 and include the relevant facts and reasons for those 
determinations.
    (b) All records of a CARP, and all records of the Librarian of 
Congress assembled and/or created under 17 U.S.C. 801 and 802, are 
available for inspection and copying at the address provided in 
Sec. 251.1 with the exception of:
    (1) Records that relate solely to the internal personnel rules and 
practices of the Copyright Office or the Library of Congress;
    (2) Records exempted by statute from disclosure;
    (3) Interoffice memoranda or correspondence not available by law 
except to a party in litigation with a CARP, Copyright Office or 
Library of Congress;
    (4) Personnel, medical or similar files whose disclosure would be 
an invasion of personal privacy;
    (5) Communications among arbitrators of a Panel concerning the 
drafting of decisions, opinions, reports, and findings on any Panel 
matter or proceeding;
    (6) Communications among the Librarian of Congress and staff of the 
Copyright Office or Library of Congress concerning decisions, opinions, 
reports, selection of arbitrators or findings on any matter or 
proceeding conducted under 17 U.S.C. chapter 8;
    (7) Offers of settlement which have not been accepted, unless they 
have been made public by the offeror;
    (8) Records not herein listed but which may be withheld as 
``exempted'' if a CARP or the Librarian of Congress finds compelling 
reasons for such action to exist.


Sec. 251.22  Public access.

    (a) Location of Records. All records relating to rate adjustment 
and distribution proceedings under this subchapter which are:
    (1) Required to be filed with the Copyright Office; or
    (2) Submitted to or produced by the Copyright Office or Library of 
Congress under 17 U.S.C. 801 and 802, or
    (3) Submitted to or produced by a Copyright Arbitration Royalty 
Panel during the course of a concluded proceeding shall be maintained 
at the Copyright Office. In the case of records submitted to or 
produced by a CARP which is currently conducting a proceeding, such 
records shall be maintained by the chairperson of that Panel at the 
location of the hearing or at a location specified by the panel. Upon 
conclusion of the proceeding, all records shall be delivered by the 
chairperson to the Copyright Office.
    (b) Requesting information. Requests for information or access to 
records described in Sec. 251.21 shall be directed to the Copyright 
Office at the address listed in Sec. 251.1. No requests shall be 
directed to or accepted by a Copyright Arbitration Royalty Panel. In 
the case of records in the possession of a CARP, the Copyright Office 
shall make arrangements with the Panel for access and copying by the 
person making the request.
    (c) Fees. Fees for photocopies of CARP or Copyright Office records 
are $0.40 per page, and fees for searching for records, certification 
of documents, and other costs incurred are as provided in 17 U.S.C. 
705, 708.


Sec. 251.23  FOIA and Privacy Act [Reserved]

Subpart D--Standards of Conduct [Reserved]

Subpart E--Procedures of Copyright Arbitration Royalty Panels


Sec. 251.40  Scope.

    This subpart governs the proceedings of Copyright Arbitration 
Royalty Panels for the adjustment of royalty rates and distribution of 
royalty fees convened under 17 U.S.C. 803. This subpart does not apply 
to other arbitration proceedings specified by 17 U.S.C., or to actions 
or rulemakings of the Librarian of Congress or the Register of 
Copyrights, except where expressly provided in the provisions of this 
subpart.


Sec. 251.41  Formal hearings.

    (a) The formal hearings that will be conducted under the rules of 
this subpart are rate adjustment hearings and royalty fee distribution 
hearings. All parties intending to participate in a hearing of a 
Copyright Arbitration Royalty Panel must file a notice of their 
intention. A CARP may also, on its own motion or on the petition of an 
interested party, hold other proceedings it considers necessary to the 
exercise of its functions, subject to the provisions of Sec. 251.7. All 
such proceedings will be governed by the rules of this subpart.
    (b) During the time periods provided in Sec. 251.45(a) and 
Sec. 251.63, any party to the proceeding may petition the Librarian of 
Congress to have the determination of the controversy rendered strictly 
on the submission of written pleadings. Replies to such petitions may 
be filed within 14 days. The Librarian, upon recommendation of the 
Register of Copyright, shall rule on the petition prior to the 
declaration of a controversy and initiation of a proceeding.


Sec. 251.42  Suspension or waiver of rules.

    For purposes of an individual proceeding, the provisions of this 
subpart may be suspended or waived, in whole or in part, by a Copyright 
Arbitration Royalty Panel upon a showing of good cause, subject to the 
provisions of Sec. 251.7. Such suspension or waiver shall apply only to 
the proceeding of the CARP taking that action, and shall not be binding 
on any other Panel or proceeding. Where procedures have not been 
specifically prescribed in this subpart, and subject to Sec. 251.7, the 
Panel shall follow procedures consistent with 5 U.S.C. chapter 5, 
subchapter II.


Sec. 251.43  Written cases.

    (a) The proceedings of a Copyright Arbitration Royalty Panel for 
rate adjustment, royalty fee distribution, or arbitration conducted 
under 17 U.S.C. 1010 shall begin with the filing of written direct 
cases of the parties who have filed a notice of intent to participate 
in the hearing.
    (b) The written direct case shall include all testimony, including 
each witness's background and qualifications, along with all the 
exhibits to be presented in the direct case.
    (c) Each party may designate a portion of past records, including 
records of the Copyright Royalty Tribunal, that it wants included in 
its direct case. Complete testimony of each witness whose testimony is 
designated (i.e., direct, cross and redirect) must be referenced.
    (d) In the case of a royalty fee distribution proceeding, each 
party must state in the written direct case its percentage or dollar 
claim to the fund. In the case of a rate adjustment proceeding, each 
part must state its requested rate. No party will be precluded from 
revising its claim or its requested rate at any time during the 
proceeding up to the filing of the proposed findings of fact and 
conclusions of law.
    (e) No evidence, including exhibits, may be submitted in the 
written direct case without a sponsoring witness, except where the 
Panel has taken official notice, or in the case of incorporation by 
reference of past records, or for good cause shown.
    (f) Written rebuttal cases of the parties shall be filed at a time 
designated by a CARP upon conclusion of the hearing of the direct case 
in the same form and manner as the direct case, except that the claim 
or the requested rate shall not have to be included if it has not 
changed from the direct case.


Sec. 251.44  Filing and service of written cases and pleadings.

    (a) Copies filed with a Copyright Arbitration Royalty Panel. In all 
filings with a Copyright Arbitration Royalty Panel, the submitting 
party shall deliver, in such a fashion as the Panel shall direct, an 
original and three copies to the Panel. The submitting party shall also 
deliver one copy to the Copyright Office at the address listed in 
Sec. 251.1. In the case of exhibits whose bulk or whose cost of 
reproduction would unnecessarily encumber the record or burden the 
party, a CARP may reduce the number of copies required by the Panel, 
but a complete copy must still be submitted to the Copyright Office. In 
no case shall a party tender any written case or pleading by facsimile 
transmission.
    (b) Copies filed with the Librarian of Congress. In all pleadings 
filed with the Librarian of Congress, the submitting party shall 
deliver an original and five copies to the Copyright Office. In no case 
shall a party tender any pleading by facsimile transmission.
    (c) English language translations. In all filings with a CARP or 
the Librarian of Congress, each submission that is in a language other 
than English shall be accompanied by an English-language translation, 
duly verified under oath to be a true translation. Any other party to 
the proceeding may, in response, submit its own English-language 
translation, similarly verified.
    (d) Affidavits. The testimony of each witness in a party's written 
case, direct or rebuttal, shall be accompanied by an affidavit or a 
declaration made pursuant to 28 U.S.C. 1746 supporting the testimony.
    (e) Subscription and verification. (1) The original of all 
documents filed by any party represented by counsel shall be signed by 
at least one attorney of record and shall list the attorney's address 
and telephone number. All copies shall be conformed. Except for 
English-language translations, written cases, or when otherwise 
required, documents signed by the attorney for a party need not be 
verified or accompanied by an affidavit. The signature of an attorney 
constitutes certification that he or she has read the document, that to 
the best of his or her knowledge and belief there is good ground to 
support it, and that it has been interposed for purposes of delay.
    (2) The original of all documents filed by a party not represented 
by counsel shall be both signed and verified by that party and list 
that party's address and telephone number.
    (3) The original of a document that is not signed, or is signed 
with the intent to defeat the purpose of this section, may be stricken 
as sham and false, and the matter shall proceed as though the document 
had not been filed.
    (f) Service. In all filings with a CARP or the Librarian of 
Congress, a copy shall be served upon counsel of all other parties 
identified in the service list, or, if the party is unrepresented by 
counsel, upon the party itself. Proof of service shall accompany the 
filing with the Panel or the Copyright Office. If a party files a 
pleading that requests or would require action by the Panel or the 
Librarian within 10 or fewer days after the filing, it must serve the 
pleading upon all other counsel or parties by means no slower than 
overnight express mail on the same day the pleading is filed.


Sec. 251.45  Discovery and prehearing motions.

    (a) Precontroversy exchange of documents and discovery. In the case 
of a royalty fee distribution proceeding, the Librarian of Congress 
shall, after the time period for filing claims and before publication 
of the notice initiating an arbitration proceeding under 17 U.S.C. 803, 
designate a period for precontroversy exchange and discovery of 
nonprivileged underlying documents related to the proceeding. In the 
case of rate adjustment proceedings, the period for precontroversy 
exchange and discovery of documents shall correspond with the 90-day 
period specified in Sec. 251.63.
    (b) Precontroversy motions and objections. During the time periods 
specified in Sec. 251.45(a), as appropriate, any party to the 
proceeding may file with the Librarian of Congress motions regarding 
precontroversy exchange of documents or discovery, objections to any 
party's royalty claim or petition, or motions for procedural or 
evidentiary rulings, on any proper ground. Any party to the proceeding 
wishing to file a response to such motion or objection may do so within 
14 days. The Librarian, upon recommendation of the Register of 
Copyrights, shall rule on the motion or objection prior to the 
declaration of a controversy and initiation of an arbitration 
proceeding.
    (c) Discovery and motions filed with a Copyright Arbitration 
Royalty Panel. (1) A Copyright Arbitration Royalty Panel shall 
designate a period following the filing of the written direct and 
rebuttal cases in which parties may request of an opposing party 
nonprivileged underlying documents related to the written exhibits and 
testimony.
    (2) After the filing of the written cases, any party may file with 
a CARP objections to any portion of another party's written case on any 
proper ground including, without limitation, relevance, competency, and 
failure to provide underlying documents. If an objection is apparent 
from the face of a written case, that objection must be raised or the 
party may thereafter be precluded from raising such an objection.
    (d) Amended filings and discovery. In the case of objections filed 
with either the Librarian of Congress or a CARP, each party may amend 
its claim, petition, written case, or direct evidence to respond to the 
objections raised by other parties, or to the requests of either the 
Librarian or a Panel. Such amendments must be properly filed with the 
Librarian or the CARP, wherever appropriate, and exchanged with all 
parties. All parties shall be given a reasonable opportunity to conduct 
discovery on the amended filings.


Sec. 251.46  Conduct of hearings: Role of arbitrators.

    (a) At the opening of a hearing conducted by a Copyright 
Arbitration Royalty Panel, the chairperson shall announce the subject 
under consideration.
    (b) Only the arbitrators of a CARP, or counsel as provided in this 
chapter, shall question witnesses.
    (c) Subject to the vote of the CARP, the chairperson shall have 
responsibility for:
    (1) Setting the order of presentation of evidence and appearance of 
witnesses:
    (2) Administering oaths and affirmations to all witnesses;
    (3) Announcing the Panel's ruling on objections and motions and all 
rulings with respect to introducing or excluding documentary or other 
evidence. In all cases, whether there are an even or odd number of 
arbitrators sitting at the hearing, it takes a majority vote to grant a 
motion or sustain an objection. A split vote will result in the denial 
of the motion or the overruling of the objection;
    (4) Regulating the course of the proceedings and the decorum of the 
parties and their counsel, and insuring that the proceedings are fair 
and impartial; and
    (5) Announcing the schedule of subsequent hearings.
    (d) Each arbitrator may examine any witness or call upon any party 
for the production of additional evidence at any time. Further 
examination, cross-examination, or redirect examination by counsel 
relevant to the inquiry initiated by an arbitrator may be allowed by a 
Panel, but only to the limited extent that it is directly responsive to 
the inquiry of the arbitrator.


Sec. 251.47  Conduct of hearings: Witnesses and counsel.

    (a) With all due regard for the convenience of the witnesses, 
proceedings shall be conducted as expeditiously as possible.
    (b) In each distribution or rate adjustment proceeding, each party 
may present its opening statement with the presentation of its direct 
case.
    (c) All witnesses shall be required to take an oath or affirmation 
before testifying; however, attorneys who do not appear as witnesses 
shall not be required to do so.
    (d) Witnesses shall first be examined by their attorney and by 
opposing attorneys for their competency to support their written 
testimony and exhibits (voir dire).
    (e) Witnesses may then summarize, highlight or read their 
testimony. However, witnesses may not materially supplement or alter 
their written testimony except to correct it, unless the Panel expands 
the witness' testimony to complete the record.
    (f) Parties are entitled to raise objections to evidence on any 
proper ground during the course of the hearing, including an objection 
that an opposing party has not furnished nonprivileged underlying 
documents. However, they may not raise objections that were apparent 
from the face of a written case and could have been raised before the 
hearing without leave from the Panel. See Sec. 251.45(c).
    (g) All written testimony and exhibits will be received into the 
record, except any to which the Panel sustains an objection; no 
separate motion will be required.
    (h) If the Panel rejects or excludes testimony and an offer of 
proof is made, the offer of proof shall consist of a statement of the 
substance of the evidence which it is contended would have been 
adduced. In the case of documentary or written evidence, a copy of such 
evidence shall be marked for identification and shall constitute the 
offer of proof.
    (i) The Panel shall discourage the presentation of cumulative 
evidence, and may limit the number of witnesses that may be heard on 
behalf of any one party on any one issue.
    (j) Parties are entitled to conduct cross-examination and redirect 
examination. Cross-examination is limited to matters raised on direct 
examination. Redirect examination is limited to matters raised on 
cross-examination. The Panel, however, may limit cross-examination and 
redirect examination if in its judgment this evidence or examination 
would be cumulative or cause undue delay. Conversely, this subsection 
does not restrict the discretion of the Panel to expand the scope of 
cross-examination or redirect examination.
    (k) Documents that have not been exchanged in advance may be shown 
to a witness on cross-examination. However, copies of such documents 
must be distributed to the Panel and to other participants or their 
counsel at hearing before being shown to the witness at the time of 
cross-examination, unless the Panel directs otherwise. If the document 
is not, or will not be, supported by a witness for the cross-examining 
party, that document can be used solely to impeach the witness's direct 
testimony and cannot itself be relied upon in findings of fact as 
rebutting the witness' direct testimony. However, upon leave from the 
Panel, the document may be admitted as evidence without a sponsoring 
witness if official notice is proper, or if, in the Panel's view, the 
cross-examined witness is the proper sponsoring witness.
    (l) A CARP will encourage individuals or groups with the same or 
similar interests in a proceeding to select a single representative to 
conduct their examination and cross-examination for them. However, if 
there is no agreement on the selection of a representative, each 
individual or group will be allowed to conduct its own examination and 
cross-examination, but only on issues affecting its particular 
interests, provided that the questioning is not repetitious or 
cumulative of the questioning of their parties within the group.


Sec. 251.48  Rules of evidence.

    (a) Admissibility. In any public hearing before a Copyright 
Arbitration Royalty Panel, evidence that is not unduly repetitious or 
cumulative and is relevant and material shall be admissible. The 
testimony of any witness will not be considered evidence in a 
proceeding unless the witness has been sworn.
    (b) Documentary evidence. Evidence that is submitted in the form of 
documents or detailed data and information shall be presented as 
exhibits. Relevant and material matter embraced in a document 
containing other matter not material or relevant or not intended as 
evidence must be plainly designated as the matter offered in evidence, 
and the immaterial or irrelevant parts shall be marked clearly so as to 
show they are not intended as evidence. In cases where a document in 
which material and relevant matter occurs is of such bulk that it would 
unnecessarily encumber the record, it may be marked for identification 
and the relevant and material parts, once properly authenticated, may 
be read into the record. If the Panel desires, a true copy of the 
material and relevant matter may be presented in extract form, and 
submitted as evidence. Anyone presenting documents as evidence must 
present copies to all other participants at the hearing or their 
attorneys, and afford them an opportunity to examine the documents in 
their entirety and offer into evidence any other portion that may be 
considered material and relevant.
    (c) Documents filed with a Copyright Arbitration Royalty Panel or 
Copyright Office. If the matter offered in evidence is contained in 
documents already on file with a Copyright Arbitration Royalty Panel or 
the Copyright Office, the documents themselves need not be produced, 
but may instead be referred to according to how they have been filed.
    (d) Public documents. If a public document such as an official 
report, decision, opinion, or published scientific or economic data, is 
offered in evidence either in whole or in part, and if the document has 
been issued by an Executive Department, a legislative agency or 
committee, or a Federal administrative agency (Government-owned 
corporations included), and is proved by the party offering it to be 
reasonably available to the public, the document need not be produced 
physically, but may be offered instead by identifying the document and 
signaling the relevant parts.
    (e) Introduction of studies and analyses. If studies or analyses 
are offered in evidence, they shall state clearly the study plan, all 
relevant assumptions, the techniques of data collection, and the 
techniques of estimation and testing. The facts and judgments upon 
which conclusions are based shall be stated clearly, together with any 
alternative courses of action considered. If requested, tabulations of 
input data shall be made available to the Copyright Arbitration Royalty 
Panel.
    (f) Statistical studies. Statistical studies offered in evidence 
shall be accompanied by a summary of their assumptions, their study 
plans, and their procedures. Supplementary details shall be included in 
appendices. For each of the following types of statistical studies the 
following should be furnished:
    (1) Sample surveys. (i) A clear description of the survey design, 
the definition of the universe under consideration, the sampling frame 
and units, the validity and confidence limits on major estimates; and
    (ii) An explanation of the method of selecting the sample and of 
which characteristics were measured or counted.
    (2) Econometric investigations. (i) A complete description of the 
econometric model, the reasons for each assumption, and the reasons for 
the statistical specification;
    (ii) A clear statement of how any changes in the assumptions might 
affect the final result; and
    (iii) Any available alternative studies, if requested, which employ 
alternative models and variables.
    (3) Experimental analysis. (i) A complete description of the 
design, the controlled conditions, and the implementation of controls; 
and
    (ii) A complete description of the methods of observation and 
adjustment of observation.
    (4) Studies involving statistical methodology. (i) The formula used 
for statistical estimates;
    (ii) The standard error for each component;
    (iii) The test statistics, the description of how the tests were 
conducted, related computations, computer programs and all final 
results; and
    (iv) Summarized descriptions of input data and, if requested, the 
input data itself.


Sec. 251.49  Transcript and record.

    (a) An official reporter for the recording and transcribing of 
hearings shall be designated by the Librarian of Congress from time to 
time. Anyone wishing to inspect the transcript of a hearing may do so 
at a location specified by the chairperson of the Copyright Arbitration 
Royalty Panel conducting the hearing. Anyone wishing a copy of the 
transcript must purchase it from the official reporter.
    (b) The transcript of testimony and all exhibits, papers, and 
requests filed in the proceeding shall constitute the official written 
record. Such record shall accompany the report of the determination of 
the CARP to the Librarian of Congress required by 17 U.S.C. 802(e).
    (c) The record, including the report of the determination of a 
CARP, shall be available at the Copyright Office for public inspection 
and copying in accordance with Sec. 251.22.


Sec. 251.50  Rulings and orders.

    In accordance with 5 U.S.C., subchapter II, a Copyright Arbitration 
Royalty Panel may issue rulings or orders, either on its own motion or 
that of an interested party, necessary to the resolution of issues 
contained in the proceeding before it; Provided, That no such rules or 
orders shall amend, supplement or supersede the rules and regulations 
contained in this subchapter. See Sec. 251.7.


Sec. 251.51  Closing the hearing.

    To close the record of hearing, the chairperson of a Copyright 
Arbitration Royalty Panel shall make an announcement that the taking of 
testimony has concluded. In its discretion the Panel may close the 
record as of a future specified date, and allow time for exhibits yet 
to be prepared to be admitted, provided that the parties to the 
proceeding stipulate on the record that they waive the opportunity to 
cross-examine or present evidence with respect to such exhibits. The 
record in any hearing that has been recessed may not be closed by the 
chairperson before the day on which the hearing is to resume, except 
upon 10 days' notice to all parties.


Sec. 251.52  Proposed findings and conclusions.

    (a) Any party to the proceeding may file proposed findings of fact 
and conclusions, briefs, or memoranda of law, or may be directed by the 
chairperson to do so. Such filings, and any replies to them, shall take 
place at such time after the record has been closed as the chairperson 
directs.
    (b) Failure to file when directed to do so shall be considered a 
waiver of the right to participate further in the proceeding, unless 
good cause for the failure is shown.
    (c) Proposed findings of fact shall be numbered by paragraph and 
include all basic evidentiary facts developed on the record used to 
support proposed conclusions, and shall contain appropriate citations 
to the record for each evidentiary fact. Proposed conclusions shall be 
stated separately. Proposed findings submitted by someone other than an 
applicant in a proceeding shall be restricted to those issues 
specifically affecting that person.


Sec. 251.53  Report to the Librarian of Congress.

    (a) At any time after the filing of proposed findings of fact and 
conclusions of law specified in Sec. 251.52, and not later than 180 
days from publication in the Federal Register of notification of 
commencement of the proceeding, a Copyright Arbitration Royalty Panel 
shall deliver to the Librarian of Congress a report incorporating its 
written determination. Such determination shall be accompanied by the 
written record, and shall set forth the facts that the Panel found 
relevant to its determination.
    (b) The determination of the Panel shall be certified by the 
chairperson and signed by all of the arbitrators. Any dissenting 
opinions shall be certified and signed by the arbitrator so dissenting.
    (c) At the same time as the submission to the Librarian of 
Congress, the chairperson of the Panel shall cause a copy of the 
determination to be delivered to all parties participating in the 
proceeding.
    (d) The Librarian of Congress shall make the report of the CARP and 
the accompanying record available for public inspection and copying.


Sec. 251.54  Assessment of costs of Arbitration Panels.

    (a) After the conclusion of the proceeding and the delivery of the 
report of the determination of the Copyright Arbitration Royalty Panel, 
the Panel may assess its costs to the participants to the proceeding.
    (1) In the case of a rate adjustment proceeding, the parties to the 
proceeding shall bear the entire cost thereof in such manner and 
proportion as the Panel shall direct.
    (2) In the case of a royalty distribution proceeding, the parties 
to the proceeding shall bear the cost of the proceeding in direct 
proportion to their share of the distribution.
    (b) The chairperson of the Panel shall cause to be delivered to 
each participating party a statement of the total costs of the 
proceeding, the party's share of the total cost, and the amount owed by 
the party to each arbitrator.
    (c) All parties to a proceeding shall have 30 days from receipt of 
the statement of costs and bill for payment in which to tender payment 
to the arbitrators. Payment should be in the form of a money order, 
check, or bank draft. Failure to submit timely payment may submit the 
nonpaying party to the provisions of the Debt Collection Act of 1982, 
including disclosure to consumer credit reporting agencies and referral 
to collection agencies.


Sec. 251.55  Post-Panel motions.

    (a) Any party to the proceeding may file with the Librarian of 
Congress a petition to modify or set aside the determination of a 
Copyright Arbitration Royalty Panel within 14 days of the Librarian's 
receipt of the Panel's report of its determination. Such petition shall 
state the reasons for modification or reversal of the Panel's 
determination, and shall include applicable sections of the party's 
proposed findings of fact and conclusions of law.
    (b) Replies to petitions to modify or set aside shall be filed 
within 14 days of the filing of such petitions.


Sec. 251.56  Order of the Librarian of Congress.

    (a) After the filing of post-Panel motions, see Sec. 251.55, but 
within 60 days from receipt of the report of the determination of a 
Panel, the Librarian of Congress shall issue an order accepting the 
Panel's determination or substituting the Librarian's own 
determination. The Librarian shall adopt the determination of the Panel 
unless he or she finds that the determination is arbitrary or contrary 
to the applicable provisions of 17 U.S.C.
    (b) If the Librarian substitutes his or her own determination, the 
order shall set forth the reasons for not accepting the Panel's 
determination, and shall set forth the facts which the Librarian found 
relevant to his or her determination.
    (c) The Librarian shall cause a copy of the order to be delivered 
to all parties participating in the proceeding. The librarian shall 
also publish the order, and the determination of the Panel, in the 
Federal Register .


Sec. 251.57  Effective date of order.

    An order of determination issued by the Librarian under Sec. 251.56 
shall become effective 30 days following its publication in the Federal 
Register, unless an appeal has been filed pursuant to Sec. 251.58 and 
notice of the appeal has been served on all parties to the proceeding.


Sec. 251.58  Judicial review.

    (a) Any order of determination issued by the Librarian of Congress 
under Sec. 251.55 may be appealed, by any aggrieved party who would be 
bound by the determination, to the United States Court of Appeals for 
the District of Columbia Circuit, within 30 days after publication of 
the order in the Federal Register.
    (b) If no appeal is brought within the 30 day period, the order of 
determination of the Librarian is final, and shall take effect as set 
forth in the order.
    (c) The pendency of any appeal shall not relieve persons obligated 
to make royalty payments under 17 U.S.C. 111, 115, 116, 118, 119, or 
1003, and who would be affected by the determination on appeal, from 
depositing statements of account and royalty fees specified by those 
sections.

Subpart F--Rate Adjustment Proceedings


Sec. 251.60  Scope.

    This subpart governs only those proceedings dealing with royalty 
rate adjustments affecting cable television (17 U.S.C. 111), the 
production of phonorecords (17 U.S.C. 115), performances on coin-
operated phonorecord players (jukeboxes) (17 U.S.C. 116), noncommercial 
educational broadcasting (17 U.S.C. 118), and audio home recording 
devices and media (17 U.S.C. chapter 10). Those provisions of subpart E 
of this part generally regulating the conduct of proceedings shall 
apply to rate adjustment proceedings, unless they are inconsistent with 
the specific provisions of this subpart.


Sec. 251.61  Commencement of adjustment proceedings.

    (a) In the case of cable television, phonorecords, coin-operated 
phonorecord players (jukeboxes) and audio home recording devices and 
media, rate adjustment proceedings shall commence with the filing of a 
petition by an interested party according to the following schedule:
    (1) Cable Television: During 1995, and each subsequent fifth 
calendar year.
    (2) Phonorecords: During 1997 and each subsequent 10th calendar 
year.
    (3) Coin-operated phonorecord players (jukeboxes): Within one year 
of the expiration or termination of a negotiated license authorized by 
17 U.S.C. 116.
    (4) Audio home recording devices and media: From October 29, 1997 
to October 28, 1998, and not more than once each year thereafter.
    (b) Cable rate adjustment proceedings may also be commenced by the 
filing of a petition, according to 17 U.S.C. 801(b)(2) (B) and (C), if 
the Federal Communications Commission amends certain of its rules with 
respect to the carriage by cable systems of broadcast signals, or with 
respect to syndicated and sports programming exclusivity.
    (c) In the case of noncommercial educational broadcasting, a 
petition is not necessary for the commencement of proceedings. 
Proceedings commence with the publication of a notice of the initiation 
of arbitration proceedings in the Federal Register on June 30, 1997, 
and at 5 year intervals thereafter.


Sec. 251.62  Content of petition.

    (a) In the case of a petition for rate adjustment proceedings for 
cable television, phonorecords, and coin-operated phonorecord players 
(jukeboxes), the petition shall detail the petitioner's interest in the 
royalty rate sufficiently to permit the Librarian of Congress to 
determine whether the petitioner has a ``significant interest'' in the 
matter. The petition must also identify the extent to which the 
petitioner's interest is shared by other owners or users; owners or 
users with similar interests may file a petition jointly.
    (b) In the case of a petition for rate adjustment proceedings as 
the result of a Federal Communications Commission rule change, the 
petition shall also set forth the actions of the Federal Communications 
Commission on which the petition for a rate adjustment is based.


Sec. 251.63  Period for consideration.

    To allow time for parties to settle their differences regarding 
rate adjustments, the Librarian of Congress shall, after the filing of 
a petition, or prior to a rate adjustment made under 17 U.S.C. 118(b), 
designate a 90-day period for consideration. The Librarian shall cause 
notice of the consideration period to be published in the Federal 
Register, and such notice shall include the effective dates of that 
period.


Sec. 251.64  Disposition of petition: Initiation of arbitration 
proceeding.

    At the end of the 90-day period, and after the Librarian has 
resolved all motions filed during that period under Sec. 251.45(b), the 
Librarian shall determine the sufficiency of the petition including, 
where appropriate, whether one or more of the petitioners' interests 
are ``significant.'' If the Librarian determines that a petition is 
sufficient, he/she shall cause to be published in the Federal Register 
a declaration of a controversy accompanied by a notice of initiation of 
an arbitration proceeding. The same declaration and notice of 
initiation shall be made for noncommercial educational broadcasting in 
accordance with 17 U.S.C. 118 (b) and (c). Such notice shall, to the 
extent feasible, describe the nature, general structure, and schedule 
of the proceeding.


Sec. 251.65  Deduction of costs of rate adjustment proceedings.

    In accordance with 17 U.S.C. 802(h)(1), the Librarian of Congress 
and the Register of Copyrights may assess the reasonable costs incurred 
by the Library of Congress and the Copyright Office as a result of the 
rate adjustment proceedings directly to the parties participating in 
the proceedings.

Subpart G--Royalty Fee Distribution Proceedings


Sec. 251.70  Scope.

    This subpart governs only those proceedings dealing with 
distribution of royalty payments deposited with the Register of 
Copyrights for cable television (17 U.S.C. 111), satellite carrier (17 
U.S.C. 119), and digital audio recording devices and media (17 U.S.C. 
chapter 10). Those provisions of subpart E generally regulating the 
conduct of proceedings shall apply to royalty fee distribution 
proceedings, unless they are inconsistent with the specific provisions 
of this subpart.


Sec. 251.71  Commencement of proceedings.

    (a) Cable television. In the case of royalty fees collected under 
the cable compulsory license (17 U.S.C. 111), any person claiming to be 
entitled to such fees must file a claim with the Copyright Office 
during the month of July each year in accordance with the requirements 
of this subchapter.
    (b) Satellite carriers. In the case of royalty fees collected under 
the satellite carrier compulsory license (17 U.S.C. 119), any person 
claiming to be entitled to such fees must file a claim with the 
Copyright Office during the month of July each year in accordance with 
the requirements of this subchapter.
    (c) Digital audio recording devices and media. In the case of 
royalty payments for the importation and distribution in the United 
States, or the manufacture and distribution in the United States, of 
any digital recording device or medium, any person claiming to be 
entitled to such payments must file a claim with the Copyright Office 
during the month of January or February each year in accordance with 
the requirements of this subchapter.


Sec. 251.72  Determination of controversy.

    (a) Cable television. After the first day of August each year, the 
Librarian of Congress shall determine whether a controversy exists 
among the claimants of cable television compulsory license royalty 
fees. In order to determine whether a controversy exists, and to 
facilitate agreement among the claimants as to the proper distribution, 
the Librarian may request public comment or conduct public hearings, 
whichever he or she deems necessary. All requests for information and 
notices of public hearings shall be published in the Federal Register, 
along with a description of the general structure and schedule of the 
proceeding.
    (b) Satellite carriers. After the first day of August of each year, 
the Librarian shall determine whether a controversy exists among the 
claimants of the satellite carrier compulsory license royalty fees. In 
order to determine whether a controversy exists, and to facilitate 
agreement among the claimants as to the proper distribution, the 
Librarian may request public comment or conduct public hearings, 
whichever he or she deems necessary. All requests for information and 
notices of public hearings shall be published in the Federal Register, 
along with a description of the general structure and schedule of the 
proceeding.
    (c) Digital audio recording devices and media. Within 30 days after 
the last day of February each year, the Librarian of Congress shall 
determine whether a controversy exists among the claimants of digital 
audio recording devices and media royalty payments as to any Subfund of 
the Sound Recording Fund or the Musical Works Fund as set forth in 17 
U.S.C. 1006(b) (1) and (2). In order to determine whether a controversy 
exists, and to facilitate agreement among the claimants as to the 
proper distribution, the Librarian may request public comment or 
conduct public hearings, whichever he or she deems necessary. All 
requests for information and notices of public hearings shall be 
published in the Federal Register, along with a description of the 
general structure and schedule of the proceeding.


Sec. 251.73  Declaration of controversy: Initiation of arbitration 
proceeding.

    If the Librarian determines that a controversy exists among the 
claimants to either cable television, satellite carrier, or digital 
audio recording devices and media royalties, the Librarian shall 
publish in the Federal Register a declaration of controversy along with 
a notice of initiation of an arbitration proceeding. Such notice shall, 
to the extent feasible, describe the nature, general structure and 
schedule of the proceeding.


Sec. 251.74  Deduction of costs of distribution proceedings.

    Pursuant to 17 U.S.C. 802(h)(1), the Librarian of Congress and the 
Register of Copyrights may, before any distributions of cable 
television royalty fees are made, deduct the reasonable costs incurred 
by the Library of Congress and the Copyright Office as a result of the 
distribution proceedings.
    3. Part 302 of chapter III is removed.
    3a. A new part 252 is added to subchapter B of chapter II to read 
as follows:

PART 252--FILING OF CLAIMS TO CABLE ROYALTY FEES

Sec.
252.1  Scope.
252.2  Time of filing.
252.3  Content of claims.
252.4  Compliance with statutory dates.
252.5  Proof of fixation of works.

    Authority: 17 U.S.C. 111(d)(4), 801, 803.


Sec. 252.1  Scope.

    This part prescribes procedures under 17 U.S.C. 111(d)(4)(A), 
whereby parties claiming to be entitled to cable compulsory license 
royalty fees shall file claims with the Copyright Office.


Sec. 252.2  Time of filing.

    During the month of July each year, any party claiming to be 
entitled to cable compulsory license royalty fees for secondary 
transmissions of one or more of its works during the preceding calendar 
year shall file a claim to such fees with the Copyright Office. No 
royalty fees shall be distributed to a party for secondary 
transmissions during the specified period unless such party has timely 
filed a claim to such fees. Claimants may file claims jointly or as a 
single claim.


Sec. 252.3  Content of claims.

    (a) Claims filed by parties claiming to be entitled to cable 
compulsory license royalty fees shall include the following 
information:
    (1) The full legal name of the person or entity claiming royalty 
fees.
    (2) The telephone number, facsimile number, if any, and full 
address, including a specific number and street name or rural route, of 
the place of business of the person or entity.
    (3) If the claim is a joint claim, a concise statement of the 
authorization for the filing of the joint claim. For this purpose a 
performing rights society shall not be required to obtain from its 
members or affiliates separate authorizations, apart from their 
standard agreements.
    (4) A general statement of the nature of the claimant's copyrighted 
works and identification of at least one secondary transmission by a 
cable system establishing a basis for the claim.
    (b) Claims shall bear the original signature of the claimant or of 
a duly authorized representative of the claimant.
    (c) In the event that the legal name and/or address of the claimant 
changes after the filing of the claim, the claimant shall notify the 
Copyright Office of such change within 30 days of the change, or the 
claim may be subject to dismissal.
    (d) In the event that, after filing an individual claim, a claimant 
chooses to negotiate a joint claim, either the particular joint 
claimant or the individual claimant shall notify the Copyright Office 
of such change within 14 days from the making of the agreement.
    (e) All claimants filing a joint claim shall make available to the 
Copyright Office, other claimants, and, where applicable, a Copyright 
Arbitration Royalty Panel, a list of all individual claimants covered 
by the joint claim.


Sec. 252.4  Compliance with statutory dates.

    Claims filed with the Copyright Office shall be considered timely 
filed only if:
    (a) They are received in the offices of the Copyright Office during 
normal business hours during the month of July, or
    (b) They are properly addressed to the Copyright Office, see 
Sec. 251.1, and they are deposited with sufficient postage with the 
United States Postal Service and bear a July U.S. postmark. Claims 
dated only with a business meter that are received after July 31 will 
not be accepted as having been filed during the month of July. No claim 
may be filed by facsimile transmission.


Sec. 252.5  Proof of fixation of works.

    In any proceeding for the distribution of cable television royalty 
fees, the Copyright Office shall not require the filing by claimants of 
tangible fixations of works in whole or in part. In the event of a 
controversy concerning the actual fixation of a work in a tangible 
medium of expression as required by the Copyright Code, the Copyright 
Arbitration Royalty Panel conducting the distribution proceeding shall 
resolve such controversy on the basis of affidavits by appropriate 
operational personnel and other appropriate documentary evidence, and 
such oral testimony as the Panel may deem necessary. Affidavits 
submitted by claimants should establish that the work for which the 
claim is submitted was fixed in its entirety, and should state the 
nature of the work, the title of the program, the duration of the 
program, and the date of fixation. No such affidavits need be filed 
with a Copyright Arbitration Royalty Panel unless requested by that 
Panel.
    4. Part 303--ACCESS TO PHONORECORD PLAYERS (JUKEBOXES) of chapter 
III is removed.
    5. Part 304 of chapter III is transferred to subchapter B of 
chapter II and is redesignated as part 253.
    6. The heading for part 253 is revised to read as follows:

PART 253--USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH 
NONCOMMERCIAL EDUCATIONAL BROADCASTING

    7. The authority citation to part 253 is revised to read as 
follows:

    Authority: 17 U.S.C. 118, 801(b)(1) and 803.


Sec. 253.4  [Amended]

    8. Section 253.4 is amended in the introductory text of the section 
by removing ``Secs. 304.5 and 304.6'' and adding ``Secs. 253.5 and 
253.6''.


Sec. 253.8  [Amended]

    9. Section 253.8(e) is amended by removing ``CRT'' each place it 
appears and adding ``Copyright Office''.


Sec. 253.9  [Amended]

    10. Section 253.9 is amended by removing ``CRT'' and adding 
``Copyright Office''.


Sec. 253.10  [Amended]

    11. Section 253.10 is amended by removing ``CRT'' each place it 
appears and adding ``Copyright Office''.


Sec. 253.10  [Amended]

    11a. Section 253.10(b) is amended by removing ``Sec. 304.5'' and 
adding ``Sec. 253.5''.


Sec. 253.10  [Amended]

    11b. Section 253.10(c) is amended by removing ``Sec. 304.5'' and 
adding ``Sec. 253.5''.


Sec. 253.12  [Amended]

    12. Section 253.12, ``Amendment of certain regulations'' and 
253.13, ``Issuance of interpretative regulations'' are removed.

PART 305-- [REMOVED]

    13. Part 305--CLAIMS TO PHONORECORD PLAYER (JUKEBOX) ROYALTY FEES 
of chapter III is removed.
    14. Part 306 is transferred to chapter II, subchapter B and is 
redesignated as part 254.
    15. The heading for part 254 is revised to read as follows:

PART 254--ADJUSTMENT OF ROYALTY RATE FOR COIN OPERATED PHONORECORD 
PLAYERS

    16. The authority citation for part 254 is revised to read as 
follows:

    Authority: 17 U.S.C. 116. 801(b)(1).


Sec. 254.1  [Amended]

    17. Section 254.1 is amended by removing ``306'' and adding ``254'' 
and by removing ``and 804(a)''.
    18. Part 307 of chapter III is transferred to subchapter B of 
chapter II and is redesignated as part 255.
    19. The heading for part 255 is revised to read as follows:

PART 255--ADJUSTMENT OF ROYALTY PAYABLE UNDER COMPULSORY LICENSE 
FOR MAKING AND DISTRIBUTING PHONORECORDS

    20. The authority citation for part 255 is revised to read as 
follows:

    Authority: 17 U.S.C. 801(b)(1) and 803.


Sec. 255.1  [Amended]

    21. Section 255.1 is amended by removing ``307'' and adding 
``255''.


Sec. 255.2  [Amended]

    22. Section 255.2 is amended by removing ``Sec. 307.3'' and adding 
``Sec. 255.3''.


Sec. 255.3  [Amended]

    23. Section 255.3 is amended in paragraph (g)(1) by removing 
``Copyright Royalty Tribunal'' and in paragraphs (g)(1) and (g)(2) by 
removing ``CRT'' each place it appears and adding ``Librarian of 
Congress'' in each place respectively.
    24. Part 308 of chapter III is transferred to subchapter B of 
chapter II and is redesignated as part 256.
    25. The heading for part 256 is revised to read as follows:

PART 256--ADJUSTMENT OF ROYALTY FEE FOR CABLE COMPULSORY LICENSE

    26. Part 309 of chapter III is transferred to subchapter B of 
chapter II and is redesignated as part 257.
    27. Part 257 is revised to read as follows:

PART 257--FILING OF CLAIMS TO SATELLITE CARRIER ROYALTY FEES

Sec.
257.1  General.
257.2  Time of filing.
257.3  Content of claims.
257.4  Compliance with statutory dates.
257.5  Proof of fixation of works.
257.6  Separate claims required.

    Authority: 17 U.S.C. 119.


Sec. 257.1  General.

    This part prescribes the procedures under 17 U.S.C. 119(b)(4) 
whereby parties claiming to be entitled to compulsory license royalty 
fees for secondary transmissions by satellite carriers of television 
broadcast signals to the public for private home viewing shall file 
claims with the Copyright Office.


Sec. 257.2  Time of filing.

    During the month of July each year, any party claiming to be 
entitled to compulsory license royalty fees for secondary transmissions 
by satellite carriers during the previous calendar year of television 
broadcast signals to the public for private home viewing shall file a 
claim with the Copyright Office. No royalty fees shall be distributed 
to any party during the specified period unless such party has timely 
filed a claim to such fees. Claimants may file jointly or as a single 
claim.


Sec. 257.3  Content of claims.

    (a) Claims filed for satellite carrier compulsory license royalty 
fees shall include the following information:
    (1) The full legal name of the person or entity claiming compulsory 
license royalty fees.
    (2) The telephone number. facsimile number, if any, and full 
address, including a specific number and street name or rural route, of 
the place of business of the person or entity.
    (3) If the claim is a joint claim, a concise statement of the 
authorization for the filing of the joint claim. For this purpose, a 
performing rights society shall not be required to obtain from its 
members or affiliates separate authorizations, apart from their 
standard membership or affiliate agreements.
    (4) A general statement of the nature of the claimant's copyrighted 
works and identification of a least one secondary transmission by a 
satellite carrier establishing a basis for the claim.
    (b) Claims shall bear the original signature of the claimant or of 
a duly authorized representative of the claimant.
    (c) In the event that the legal name and/or full address of the 
claimant changes after the filing of the claim, the claimant shall 
notify the Copyright Office of such change within 30 days of the 
change, or the claim may be subject to dismissal.
    (d) In the event that, after filing an individual claim, an 
interested copyright party chooses to negotiate a joint claim, either 
the particular joint claimants or individual claimant shall notify the 
Copyright Office of such change within 14 days from the making of the 
agreement.
    (e) All claimants filing a joint claim shall make available to the 
Copyright Office, other claimants, and, where applicable, a Copyright 
Arbitration Royalty Panel, a list of all individual claimants covered 
by the joint claim.


Sec. 257.4  Compliance with statutory dates.

    Claims filed with the Copyright Office shall be considered timely 
filed only if:
    (a) They are received in the offices of the Copyright Office during 
normal business hours during the month of July, or
    (b) They are properly addressed to the Copyright Office, see 
Sec. 251.1, and they are deposited with sufficient postage with the 
United States Postal Service and bear a July U.S. postmark. Claims 
dated only with a business meter that are received after July 31 will 
not be accepted as having been filed during the month of July. No claim 
may be filed by facsimile transmission.


Sec. 257.5  Proof of fixation of works.

    In any proceeding for the distribution of satellite carrier royalty 
fees, the Copyright Office shall not require the filing by claimants of 
tangible fixations of works in whole or in part. In the event that a 
controversy concerning the actual fixation of a work in a tangible 
medium of expression as required by the Copyright Code, the Copyright 
Arbitration Royalty Panel conducting the distribution proceeding shall 
resolve such controversy on the basis of affidavits by appropriate 
operational personnel and other appropriate documentary evidence, and 
by such oral testimony as the Panel may deem necessary. Affidavits 
submitted by claimants should establish that the work for which the 
claim was submitted was fixed in its entirety, and should state the 
nature of the work, the title of the program, the duration of the 
program, and the date of fixation. No such affidavits need be filed 
with a CARP unless requested by that Panel.


Sec. 257.6  Separate claims required.

    If a party intends to file claims for both cable compulsory license 
and satellite carrier compulsory license royalty fees during the same 
month of July, that party must file separate claims with the Copyright 
Office. Any single claim which purports to file for both cable and 
satellite carrier royalty fees will be dismissed.
    28. Part 310 of chapter III is transferred to subchapter B of 
chapter II and is redesignated as part 258.
    29. The heading for part 258 is revised to read as follows:

PART 258--ADJUSTMENT OF ROYALTY FEE FOR SECONDARY TRANSMISSIONS BY 
SATELLITE CARRIERS

    29a. The authority citation for part 258 continues to read as 
follows:

    Authority: 17 U.S.C. 119(c)(3)(F).


Sec. 258.1  [Amended]

    30. Section 258.1 is amended by removing ``310'' and adding 
``258''.


Sec. 258.2  [Amended]

    31. Section 258.2 is amended by removing ``Sec. 310(3)(b)'' and 
adding ``Sec. 258(3)(b)''.
    32. Part 311 of chapter III is transferred to subchapter B of 
chapter II and is redesignated as Part 259.
    33. The heading for part 259 is revised to read as follows:

PART 259--FILING OF CLAIMS TO DIGITAL AUDIO RECORDING DEVICES AND 
MEDIA ROYALTY PAYMENTS

    33a. The authority citation for part 259 is revised to read as 
follows:

    Authority: 17 U.S.C. 1007(a)(1).


Sec. 259.1  [Amended]

    34. Section 259.1 is amended by removing ``Copyright Royalty 
Tribunal'' and adding ``Copyright Office''.


Sec. 259.2  [Amended]

    35. Section 259.2 is amended by removing ``Copyright Royalty 
Tribunal'' each place it appears and adding ``Copyright Office''.


Sec. 259.3  [Amended]

    36. Section 259.3 is amended by removing ``Copyright Royalty 
Tribunal'' each place it appears and adding ``Copyright Office''.


Sec. 259.4  [Amended]

    37. Section 259.4 is amended by removing ``Copyright Royalty 
Tribunal'' each place it appears and adding ``Copyright Office''.


Sec. 259.5  [Amended]

    38. Section 259.5 is amended by removing ``Copyright Royalty 
Tribunal'' each place it appears and adding ``Copyright Office''.


Sec. 259.5b  [Amended]

    39. Section 259.5(b) is amended by removing ``1825 Connecticut 
Avenue, NW., suite 918, Washington, DC 20009'' and adding ``Copyright 
Office, see Sec. 251.1.''.


Sec. 259.6  [Removed]

    40. Section 259.6 is removed.

    Dated: January 11, 1994.
Barbara A. Ringer,
Acting Register of Copyrights.
James H. Billington,
The Librarian of Congress.
[FR Doc. 94-1199 Filed 1-14-94; 8:45 am]
BILLING CODE 1410-09-M