[Federal Register Volume 64, Number 181 (Monday, September 20, 1999)]
[Rules and Regulations]
[Pages 50758-50759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24303]


=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 99-5A]


Notice and Recordkeeping for Nonsubscription Digital 
Transmissions

AGENCY: Copyright Office, Library of Congress.

ACTION: Interim rule amendment.

-----------------------------------------------------------------------

SUMMARY: To adjust for changes brought about by the passage of the 
Digital Millennium Copyright Act of 1998, the Copyright Office of the 
Library of Congress is amending the regulation that requires the filing 
of an initial notice of digital transmissions of sound recordings under 
statutory license with the Copyright Office.

EFFECTIVE DATE: September 20, 1999.

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

SUPPLEMENTARY INFORMATION:

Background

    On November 1, 1995, Congress enacted the Digital Performance Right 
in Sound Recordings Act of 1995 (``DPRA''), Public Law 104-39, 109 
Stat. 336 (1995). The DPRA gave to sound recording copyright owners an 
exclusive right to perform their works publicly by means of a digital 
audio transmission. 17 U.S.C. 106(6). The new right, however, was 
subject to certain limitations, including exemptions for certain 
digital transmissions, 17 U.S.C. 114(d)(1), and the creation of a 
statutory license for nonexempt digital subscription services. 17 
U.S.C. 114(d)(2).
    The statutory license requires adherence to regulations under which 
copyright owners may receive reasonable notice of use of their sound 
recordings under the statutory license, and under which entities 
performing the sound recordings shall keep and make available records 
of such use. 17 U.S.C. 114(f)(2). On May 13, 1996, the Copyright Office 
initiated a rulemaking proceeding to promulgate regulations to govern 
the notice and recordkeeping requirements. 61 FR 22004 (May 13, 1996). 
This rulemaking concluded with the issuance of interim rules governing 
the filing of an initial notice of digital transmissions of sound 
recordings under the statutory license, 37 CFR 201.35, and the filing 
of reports of use of sound recordings under statutory license, 37 CFR 
201.36. See 63 FR 34289 (June 24, 1998).
    At the time these regulations were issued, only three 
noninteractive, subscription, digital transmissions services (DMX, 
Inc., Digital Cable Radio Associates/Music Choice, and Muzak, Inc.) \1\ 
were in operation and considered eligible for the license. 
Consequently, the Office prescribed a period for filing initial notices 
which required any service already operating in accordance with the 
section 114 license to submit its notice within 45 days of the 
effective date of the regulation. Section 201.35(f) reads, in part, as 
follows: ``A Service shall file the Initial Notice with the Licensing 
Division of the Copyright Office prior to the first transmission of 
sound recordings under the license, or within 45 days of the effective 
date of this regulation.'' (Emphasis added).
---------------------------------------------------------------------------

    \1\ These services were incorrectly identified in the August 4, 
1999, notice as nonsubscription services.
---------------------------------------------------------------------------

    Subsequently, the President signed into law the Digital Millennium 
Copyright Act of 1998 (``DMCA''). Among other things, the DMCA expanded 
the section 114 compulsory license to allow a nonexempt, eligible 
nonsubscription transmission service and a preexisting satellite 
digital audio radio service to perform publicly a sound recording by 
means of certain digital audio transmissions, subject to compliance 
with notice and recordkeeping requirements. 17 U.S.C. 114(f).
    The notice and recordkeeping requirements found in Secs. 201.35 and 
201.36 would appear to apply to any service eligible for the section 
114 license, including those newly eligible to use the license under 
the amended provisions of the license. However, these regulations 
provide no opportunity for a newly eligible nonsubscription 
transmission service which was in service prior to the passage of the 
DMCA to make a timely filing of its initial notice of transmission. 
Therefore, the Copyright Office proposed an amendment to Sec. 201.35(f) 
which would extend the period for filing the initial notice to October 
15, 1999, in order to allow the eligible nonsubscription services which 
were in operation prior to the passage of the DMCA an opportunity to 
file their initial notice timely. 64 FR 42316 (August 4, 1999).
    On September 2, 1999, the Recording Industry of America, Inc. 
(``RIAA'') filed a comment supporting, in general, the Office's 
proposal to amend the date by which a nonexempt, eligible 
nonsubscription service already in operation could file a timely 
initial notice. RIAA expressed concern, however, that the proposed 
language is overly broad and would allow not only the newly eligible 
nonsubscription services an opportunity to file an initial notice 
timely, but inadvertently extend the filing period for any preexisting 
digital subscription services which had not filed in accordance with 
the original rule. To avoid any confusion on this point, the Office is 
amending the rule to indicate that any subscription service in 
operation prior to September 3, 1998, had until that date to file its 
initial notice with the Copyright Office, in addition to establishing 
an October 15, 1999, filing deadline for any eligible, nonsubscription 
service which is currently in operation. Of course, any new service 
which chooses to make use of the license may file its initial notice 
after these dates, so long as the service files its initial notice with 
the Licensing Division prior to the first transmission of a sound 
recording.

Regulatory Flexibility Act

    Although the Copyright Office, located in the Library of Congress 
which is part of the legislative branch, is not an ``agency'' subject 
to the Regulatory Flexibility Act, 5 U.S.C. 601-612, the Register of 
Copyrights has considered the effect of the amendment on small 
businesses. The Register has determined that the amendment would not 
have a significant economic impact on a substantial number of small 
entities that would require provision of special relief

[[Page 50759]]

for small entities. The amendment is designed to minimize any 
significant economic impact on small entities.

List of Subjects in 37 CFR Part 201

    Copyright.

Final Regulations

    For the reasons set forth in the preamble, part 201 of title 37 of 
the Code of Federal Regulations is amended as follows:

PART 201--GENERAL PROVISIONS

    1. The authority citation for part 201 continues to read as 
follows:

    Authority: 17 U.S.C. 702.


Sec. 201.35  [Amended]

    2. Section 201.35(f) is amended by removing the phrase ``or within 
45 days of the effective date of this regulation.'' and adding in its 
place the folllowing: * * * or by September 3, 1998, in the case of a 
Service that makes subscription transmissions before or on that date, 
or by October 15, 1999, in the case of a Service that makes eligible 
nonsubscription transmissions before, or on, that date. * * *

    Dated: September 10, 1999.
Marybeth Peters,
Register of Copyrights.
    Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 99-24303 Filed 9-17-99; 8:45 am]
BILLING CODE 1410-31-P