[Federal Register Volume 63, Number 172 (Friday, September 4, 1998)]
[Proposed Rules]
[Pages 47215-47216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23907]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 98-7]


Notice and Recordkeeping for Making and Distributing Phonorecords

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of Inquiry.

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SUMMARY: The Copyright Office of the Library of Congress is requesting 
comments on the requirements by which copyright owners shall receive 
reasonable notice of the use of their works in the making and 
distribution of phonorecords. The Digital Performance Right in Sound 
Recordings Act of 1995 requires the Librarian of Congress to establish 
these regulations to ensure proper payment to copyright owners for the 
use of their works.

DATES: Comments are due October 19, 1998. Reply comments are due 
November 18, 1998.

ADDRESSES: If sent by mail, an original and ten copies of the comments, 
or the reply comments, should be addressed to: David Carson, General 
Counsel, Copyright GC/I&R, PO. Box 70400, Southwest Station, 
Washington, DC 20024. If hand delivered, an original and ten copies of 
the comments, or the reply comments, should be brought to: Office of 
the Copyright General Counsel, James Madison Memorial Building, Room 
LM-407, First and Independence Avenue, SE, Washington, DC 20599-6000.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Tanya M. Sandros, Attorney Advisor, Copyright GC/I&R, PO Box 70400, 
Southwest Station, Washington, DC 20024. Telephone (202) 707-8380 or 
Telefax (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Background

What Is the Digital Performance Right in Sound Recordings Act of 1995?

    On November 1, 1995, Congress enacted the Digital Performance Right 
in Sound Recordings Act of 1995 (DPRSRA), Pub. L. 104-39 (1995). Among 
other things, this law clarified that the compulsory license for making 
and distributing phonorecords includes the distribution of a 
phonorecord of a nondramatic musical work by means of a digital 
phonorecord delivery. 17 U.S.C. 115(c)(3). A ``digital phonorecord 
delivery'' is each individual delivery of a phonorecord by digital 
transmission of

[[Page 47216]]

a sound recording which results in a specifically identifiable 
reproduction by or for any transmission recipient. 17 U.S.C. 115(d), 37 
CFR 255.4.

Why Has the Copyright Office Initiated This Rulemaking Proceeding?

    The DPRSRA directs the Librarian of Congress to establish 
regulations by which the entities availing themselves of this new 
license would keep records of their use, make the records available to 
the copyright owners, and give notice to the copyright owners of the 
use of their works. 17 U.S.C. 115(c)(3)(D). Specifically, sec. 
115(c)(3)(D) requires ``The Librarian of Congress (to) establish 
requirements by which copyright owners may receive reasonable notice of 
the use of their works under this section, and under which records of 
use shall be kept and made available by persons making digital 
phonorecord deliveries.''

Are There Currently Regulations Governing the Use of the Section 115 
Compulsory License?

    Sections 201.18 and 201.19 of title 37 of the Code of Federal 
Regulations, detail how potential compulsory licensees must file a 
notice of intention to obtain a compulsory license for making and 
distributing phonorecords of nondramatic musical works, how to make 
royalty payments to the copyright owners, and how to file statements of 
account in compliance with the terms of the sec. 115 license. Although 
these rules were promulgated before the passage of the DPRSRA to govern 
the making and distribution of physical phonorecords, these regulations 
apply equally to compulsory licensees who make digital phonorecord 
deliveries.

Can the Regulations in 37 CFR 201.18 and 201.19 Be Amended To 
Accommodate the Delivery of Digital Phonorecords and Meet the 
Additional Notice and Recordkeeping Requirements in 17 U.S.C. 
115(c)(3)(D)?

    Section 115(b)(1) of the Copyright Act, 17 United States Code, 
requires ``any person who wishes to obtain a compulsory license under 
this section * * * (to) serve notice of intention to do so on the 
Copyright Owner.'' The section also requires the Copyright Office to 
prescribe regulations specifying the form, content, and manner of 
service of the notice of intention. Section 201.18 of title 37 of the 
Federal Code of Regulations meets this requirement. Similarly, the 
regulations in Sec. 201.19 address the requirement that each compulsory 
licensee file monthly and annual statements of account for each sec. 
115 compulsory license as required under 17 U.S.C. 115(c)(5).
    These rules, however, were conceived before the dawn of the digital 
age, and consequently, may not serve those compulsory licensees who 
intend to use the license to make digital phonorecord deliveries. For 
instance, 37 CFR 201.19 uses the terms, ``voluntarily distributed,'' 
and ``phonorecord reserve,'' which, on their face, do not seem to apply 
to the delivery of digital phonorecords. Nevertheless, their purpose is 
to provide notice to the copyright owner of the use of his or her work 
by a compulsory licensee and to ensure proper payment of royalties--the 
same purpose underlying the new notice and recordkeeping provision 
found in 17 U.S.C. 115(c)(3)(D).
    Therefore, the Copyright Office is requesting that interested 
parties consider how to amend 37 CFR 201.18 and 201.19 in order to 
accommodate the delivery of digital phonorecords, and whether these 
rules, if amended to accommodate the delivery of digital phonorecords, 
would fulfill the notice and recordkeeping requirements specified in 17 
U.S.C. 115(c)(3)(D), in addition to the requirements to file a notice 
of intention and monthly as well as annual statements of accounts. 
Furthermore, the Office seeks comment on the specific requirement in 
sec. 115(c)(3)(D) that the ``persons making digital phonorecord 
deliveries'' must keep and make available records of use. Interested 
parties who do not believe that Secs. 201.18 and 201.19 can serve as an 
appropriate model for the requirements of sec. 115(c)(3)(D) are invited 
to propose alternative means of notice and recordkeeping.

    Dated: September 1, 1998.
David O. Carson,
General Counsel.
[FR Doc. 98-23907 Filed 9-3-98; 8:45 am]
BILLING CODE 1410-31-P