[Federal Register Volume 66, Number 224 (Tuesday, November 20, 2001)]
[Notices]
[Pages 58180-58181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28995]


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LIBRARY OF CONGRESS

Copyright Office

[Docket No. 2001-2 CARP DTNSRA and Docket No. 2001-1 CARP DSTRA 2]


Digital Performance Right in Sound Recordings Rate Adjustment 
Proceedings

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of inquiry and request for notices of intention to 
participate.

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SUMMARY: The Copyright Office of the Library of Congress is requesting 
comments as to whether the rate adjustment proceeding to determine 
reasonable rates and terms for the public

[[Page 58181]]

performance of sound recordings by new subscription services should be 
consolidated with the rate adjustment proceeding to determine 
reasonable rates and terms for the public performance of sound 
recordings by pre-existing satellite digital audio radio services and 
pre-existing subscription services. The Office is also calling for 
submission of Notices of Intent to Participate from parties interested 
in participating in either or both proceedings.

DATES: Comments and Notices of Intent to Participate are due no later 
than December 20, 2001. Reply comments are due no later than January 
22, 2002.

ADDRESSES: An original and five copies of comments, reply comments and 
Notices of Intent to Participate, if sent by mail, should be addressed 
to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, 
Southwest Station, Washington, DC 20024. If hand delivered, they should 
be brought to: Office of the Copyright General Counsel, James Madison 
Memorial Building, Room LM-403, First and Independence Avenues, SE., 
Washington, DC 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

    In 1995, Congress passed the Digital Performance Right in Sound 
Recordings Act, Public Law 104-39, which gave copyright owners of sound 
recordings an exclusive right to perform publicly their copyrighted 
works by means of a digital audio transmission, subject to certain 
limitations and exemptions. 17 U.S.C. 106(6). Among the limitations 
placed on the performance of a sound recording was the creation of a 
statutory license for performances made by nonexempt, non-interactive 
digital subscription services. 17 U.S.C. 114. Initial rates and terms 
for transmissions made by these services were determined by the 
Librarian of Congress after a proceeding before a Copyright Arbitration 
Royalty Panel (``CARP'') under chapter 8 of the Copyright Act. 63 FR 
25394 (May 8, 1998).
    Section 114 was amended with the passage of the Digital Millennium 
Copyright Act of 1998 (``DMCA''), Public Law 105-304, to create 
statutory licenses to cover additional digital audio transmissions. 
These include ``eligible nonsubscription transmissions'' and those 
transmissions made by ``new subscription services'' and ``pre-existing 
satellite digital audio radio services.''
    On January 9, 2001, the Copyright Office published a Federal 
Register notice initiating a voluntary six-month negotiation period to 
establish terms and rates for the statutory licenses covering ``pre-
existing satellite digital audio radio services,'' and ``pre-existing 
subscription services'' (the three subscription services in existence 
prior to the passage of the DMCA). 66 FR 1700 (January 9, 2001). No 
agreements were reached. After the close of the negotiation period, the 
Office received petitions from the Recording Industry Association of 
America (``RIAA''), and jointly XM Satellite Radio, Inc. and Sirius 
Satellite Radio, Inc., requesting that the Librarian of Congress 
convene a CARP to establish terms and rates for the statutory license 
for pre-existing satellite digital audio radio services. Convocation of 
these proceedings is pending.
    On February 12, 2001, the Copyright Office published a Federal 
Register notice initiating a voluntary six-month negotiation period to 
establish rates and terms for the statutory license covering new 
subscription services. 66 FR 9881 (February 12, 2001). No agreements 
were reached. After the close of the negotiation period, the Office 
received petitions from Music Choice and RIAA requesting that the 
Librarian of Congress convene a CARP to establish terms and rates for 
the statutory license covering new subscription services.

Request for Comments

    In its petition to convene a CARP for new subscription services, 
Music Choice requests the Copyright Office to consolidate the 
proceeding for new subscription services (Docket No. 2001-2 CARP 
DTNSRA) with the proceeding for pre-existing satellite digital audio 
radio services and pre-existing subscription services (Docket No. 2001-
1 CARP DSTRA2). Music Choice submits that ``[g]ood cause exists to 
consolidate the two proceedings in the interest of fairness and 
efficiency.'' Music Choice petition at 1.
    The Library seeks comment as to the advisability of consolidating 
Docket No. 2001-2 CARP DTNSRA with Docket No. 2001-1 CARP DSTRA2. Can 
both dockets be handled efficiently and effectively by a single CARP? 
What are the advantages, if any, of convening separate CARPs for these 
two dockets?

Request for Notices of Intent To Participate

    Section 251.45(a) of the rules, 37 CFR, requires that a Notice of 
Intention to Participate be filed in order to participate in a CARP 
proceeding, but it does not prescribe the contents of the Notice. 
Recently, in another proceeding, the Library has been forced to address 
the issue of what constitutes a sufficient Notice and to whom it is 
applicable. See 65 FR 54077 (September 6, 2000); see also Orders in 
Docket No. 2000-2 CARP CD 93-97 (June 22, 2000, and August 1, 2000). 
These rulings will result in a future amendment to Sec. 251.45(a) to 
specify the content of a properly filed Notice. In the meantime, the 
Office advises those parties filing Notices of Intention to Participate 
in this proceeding to comply with the following instructions.
    Each party wishing to participate in Docket No. 2001-2 CARP DTNSRA, 
Docket No. 2001-1 CARP DSTRA, or both must file a Notice of Intention 
to Participate that contains the following: (1) The party's full name, 
address, telephone number, and facsimile number (if any); (2) 
identification of whether the Notice covers Docket No. 2001-2 DTNSRA, 
Docket No. 2001-1 CARP DSTRA, or both; and (3) a statement of the 
party's intention to fully participate in a CARP proceeding.
    Claimants may, in lieu of individual Notices of Intention to 
Participate, submit joint Notices. In lieu of the requirement that the 
Notice contain the party's name, address, telephone number and 
facsimile number, a joint Notice shall provide the full name, address, 
telephone number, and facsimile number (if any) of the person filing 
the Notice and it shall contain a list identifying all parties to the 
joint Notice. In addition, if the joint Notice is filed by counsel or a 
representative of one or more of the parties identified in the joint 
Notice, the joint Notice shall contain a statement from such counsel or 
representative certifying that, as of the date of submission of the 
joint Notice, such counsel or representative has the authority and 
consent of the parties to represent them in the CARP proceeding.
    Notices of Intention to Participate are due no later than December 
20, 2001. Failure to file a timely Notice of Intention to Participate 
may preclude a party from participating in a CARP proceeding.

    Dated: November 13, 2001.
David O. Carson,
General Counsel.
[FR Doc. 01-28995 Filed 11-19-01; 8:45 am]
BILLING CODE 1410-33-P