[Federal Register Volume 65, Number 66 (Wednesday, April 5, 2000)]
[Proposed Rules]
[Pages 17840-17841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8386]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2000-3A]


Public Performance of Sound Recordings: Definition of a Service

AGENCY: Copyright Office, Library of Congress.

ACTION: Request for comments.

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SUMMARY: The Copyright Office is seeking comments on a motion to 
suspend the rulemaking proceeding which would determine whether 
transmissions of a broadcast signal over a digital communications 
system, such as the internet, are exempt from copyright liability.

DATES: Written comments are due on April 17, 2000. Reply comments are 
due May 1, 2000.

ADDRESSES: If sent by mail, an original and ten copies of comments and 
reply comments should be addressed to: Copyright Arbitration Royalty 
Panel (CARP), P.O. Box 70977, Southwest Station, Washington, D.C. 
20024. If hand delivered, they should be brought to: Office of the 
General Counsel, James Madison Memorial Building, Room LM-403, First 
and Independence Avenue, S.E., Washington, D.C. 20559-6000.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Tanya M. Sandros, Senior Attorney, Copyright Arbitration Royalty Panel, 
PO Box 70977, Southwest Station, Washington, DC 20024. Telephone: (202) 
707-8380. Telefax: (202) 252-3423.

SUPPLEMENTARY INFORMATION:

Background

    On March 1, 2000, the Recording Industry Association of America, 
Inc. (``RIAA'') filed a petition with the Copyright Office, requesting 
that it initiate a rulemaking proceeding to determine whether over-the-
air broadcast radio transmissions that are transmitted over the 
Internet are exempt from copyright liability pursuant to section 114 of 
the Copyright Act, title 17 of the United States Code. On March 16, 
2000, the Office published a notice of proposed rulemaking in which it 
requested comments on the scope of the section 114(a) exemption and 
whether the Office should decide this question through a notice and 
comment proceeding. 65 FR 14227 (March 16, 2000).
    In response to that notice, the National Association of 
Broadcasters (``NAB'') filed, on behalf of its members, a complaint 
against the RIAA in the U.S. District Court for the Southern District 
of New York seeking a declaratory ruling that a simultaneous 
transmission of an over-the-air broadcast of an FCC-licensed radio 
station over the Internet is exempt from the digital performance right 
in sound recordings and, consequently, is not subject to compulsory 
licensing under section 114 of the Act, or to discretionary licensing 
by individual copyright holders. Subsequently, NAB and ABC, Inc., AMFM, 
Inc., Bonneville International Corporation, CBS Corporation, Clear 
Channel Communications, Inc., Cox Radio, Inc., Emmis Communications 
Corporation and the Walt Disney Company (collectively ``movants'') 
filed a motion with the Copyright Office on March 29, 2000, requesting 
a suspension of the rulemaking proceeding regarding the Digital 
Performance Right in Sound Recordings.
    In the motion, Movants suggest that the resolution of a fundamental 
question involving nothing more than the interpretation of a statutory 
provision is best left to a court of competent jurisdiction. Motion at 
5. they intimate that an agency need not involve itself in such issues, 
at least in the first instance, unless the question raises regulatory 
policy concerns or falls within the unique expertise of the agency. 
They also argue that a rulemaking proceeding is an inadequate means for 
resolving such a ``fundamental'' issue, and for that reason such 
questions should be decided by a court.
    Since the issues raised in the motion merely respond to the 
Office's request for comment on whether the Office should proceed to 
decide the question concerning the scope of the section 114(a) 
exemption through a notice and comment proceedings, the Office cannot 
address the merits of the motion until those parties with an interest 
in the proceeding have an opportunity to comment. Because the motion 
sets forth concrete arguments urging the Office defer addressing the 
scope of the section 114(a) exemption in a notice and comment 
proceeding in order to allow a court--in this instance, the U.S. 
District Court for the Southern District of New York--the opportunity 
to resolve the issue, the Office is making the motion available at this 
time in order to give all interested parties notice of the motion and 
an opportunity to comment on the arguments set forth therein.
    Copies of the motion are available from the Office of the General 
Counsel of Copyright at the address listed in this notice. The motion 
has also been posted

[[Page 17841]]

to the Copyright Office website (http://www.loc.gov/copyright/licensing/motion-suspend.pdf). Comments on the motion to suspend are to 
be included in the comments a party submits on the substantive issues 
set forth in the initial notice of proposed rulemaking. Comments are 
due on April 17, 2000, and reply comments are due on May 1, 2000, the 
dates specified in the initial notice of proposed rulemaking, and 
should be included as part of any comments interested parties submit in 
response to the initial notice of proposed rulemaking.

    Dated: March 31, 2000.
Marilyn J. Kretsinger,
Assistant General Counsel.
[FR Doc. 00-8386 Filed 4-4-00; 8:45 am]
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