[Federal Register Volume 67, Number 26 (Thursday, February 7, 2002)]
[Proposed Rules]
[Pages 5761-5767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2842]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2002]


Notice and Recordkeeping for Use of Sound Recordings Under 
Statutory License

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Copyright Office of the Library of Congress is issuing a 
notice of proposed rulemaking on the requirements for giving copyright 
owners reasonable notice of the use of their works for sound recordings 
under statutory license and for how records of such use shall be kept 
and made available to copyright owners. The Digital Performance Right 
in Sound Recordings Act of 1995 and the Digital Millennium Copyright 
Act enacted in 1998 require the Office to adopt these regulations.

DATES: Comments are due by March 11, 2002. Reply comments are due by 
April 8, 2002.

ADDRESSES: An original and ten copies of any comment shall be delivered 
to: Office of the General Counsel, Copyright Office, James Madison 
Building, Room LM-403, First and Independence Avenue, SE, Washington, 
DC; or mailed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 
70977, Southwest Station, Washington, DC 20024-0977.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Tanya Sandros, Senior Attorney, Copyright Arbitration Royalty Panel, 
P.O. Box 70977, Southwest Station, Washington, DC 20024-0977. 
Telephone: (202) 707-8380. Telefax: (202) 252-3423.

SUPPLEMENTARY INFORMATION:

Background

    The Digital Performance Right in Sound Recordings Act of 1995 
(DPRA) amended 17 U.S.C. 114 to give sound recording copyright owners 
an exclusive right to perform their works publicly by means of a 
digital audio transmission, subject to certain limitations and 
exemptions. Pub. L. No. 104-39, 109 Stat. 336 (1995). Among the 
limitations placed on the performance of a sound recording was the 
creation of a statutory license that permits certain subscription 
digital audio Services to publicly perform those sound recordings 
through digital audio transmission. In order to operate under the 
license, eligible subscription digital audio Services must pay the 
statutorily required fees and comply with certain other conditions, 
such as adherence to notice and recordkeeping requirements.
    In 1998, Congress passed the Digital Millennium Copyright Act 
(DMCA), which expanded the scope of the section 114 license. It amended 
section 114 by adding three new categories of Services that may operate 
under the license, and by redesignating the subscription Services 
covered by the DPRA statutory license as ``preexisting subscription 
Services.'' Pub. L. No. 105-304, 112 Stat. 2860, 2887 (1998). The three 
new service categories are: (1) Preexisting satellite digital audio 
radio Services, (2) new subscription Services and (3) eligible 
nonsubscription transmission Services. The DMCA also amended 17 U.S.C. 
112 to add another new license that is available to permit Services to 
make ephemeral recordings of a sound recording to facilitate the 
transmissions permitted under section 114.
    Both the DPRA and the DMCA direct the Librarian of Congress to 
establish regulations to require eligible Services to give copyright 
owners reasonable notice that their sound recordings are being used 
under one or both of the licenses and create and maintain records of 
use and make them available to copyright owners. See Secs. 112(e)(4) 
and 114(f)(4)(A).

Interim Rule for Digital Audio Subscription Transmissions

    On May 13, 1996, the Copyright Office published a Notice of 
Proposed Rulemaking (NPRM) in the Federal Register requesting comments 
on the requirements by which copyright owners should receive reasonable 
notice of the use of their works from subscription digital transmission 
Services and how records of such use should be kept and made available 
to copyright owners. The Office asked commentators to consider both the 
adequacy of notice to sound recording copyright owners and the 
administrative burdens placed on digital transmission Services in 
providing notice and maintaining records of use. 61 FR 22004 (May 13, 
1996).
    On November 14, 1996, and again on January 27, 1999, the Copyright 
Office met with the parties to facilitate agreement on the notice and 
recordkeeping requirements under section 114, and to discuss the proper 
regulatory and recordkeeping role of the Office.\1\
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    \1\ The comments, meeting summaries, and meeting handouts are 
available in the Public Information Office of the Copyright Office, 
James Madison Memorial Building, Room LM-401, First and Independence 
Ave., SE., Washington, DC.
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    Based on the comments filed in response to the first NPRM and the 
information gleaned from the subsequent meetings, the Copyright Office 
published a second NPRM on June 24, 1997, presenting certain 
preliminary decisions and asking the parties for further comments.\2\ 
62 FR 34035 (June 24, 1997). In 1998, after extensive study, the 
Copyright Office issued Interim Regulations to implement the notice and 
recordkeeping requirements for section 114 that were enacted in 1995 as 
part of the DPRA. 63 FR 34289 (June 24, 1998). 37 CFR 201.35-201.37. 
The interim rules took effect on June 28, 1998. The rules were issued 
on an interim basis in light of the rapidly developing nature of the 
digital transmission Service industry and the possibility that new 
technology might be developed which would allow the reporting 
requirements to be either

[[Page 5762]]

expanded or reduced, depending upon the needs of the industries.
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    \2\ The version that was published in the Federal Register on 
June 24, 1998 is a synopsis of the Interim Regulation in Docket No. 
RM 96-3B, adopted June 15, 1998. The full text is available for 
inspection and copying during normal business hours in the Public 
Information Office of the Copyright Office, Room LM-401, and in the 
Public Records Office of the Licensing Division of the Copyright 
Office, Room LM-458, James Madison Memorial Building, First and 
Independence Avenue, SE, Washington, DC 20559-6000. The full text is 
also available via the Copyright Office home page at http://www.loc.gov/copyright.
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    Since that time, the subscription digital audio Services (now known 
as the ``preexisting subscription Services'') have filed notices of use 
and maintained records of use in accordance with these rules. These 
rules, however, were not adapted to cover the new categories of 
Services that operate under the licenses in sections 112 and 114, as 
amended by the DMCA.

Current Rulemaking Proceeding

    The purpose of this proposed rulemaking is to provide interested 
parties with an opportunity to comment on the Interim regulations and 
to amend these same rules to include the requirements of the 1998 DMCA 
amendments that expanded the section 114 license and created the new 
section 112 license. For a full discussion of the issues underpinning 
the Interim regulations, please refer to the earlier NPRMs, 61 FR 22004 
(May 13, 1996) and 62 FR 34035 (June 24, 1997), and the notice 
announcing the interim rules. 63 FR 34289 (June 24, 1998).

1. Preliminary Considerations

    On May 24, 2001, the Copyright Office received a petition from the 
Recording Industry Association of America (RIAA) and its SoundExchange 
division requesting that the Office conduct rulemaking proceedings to 
develop notice and recordkeeping requirements that substantively 
address the 1998 DMCA amendments. RIAA, however, advised against 
establishing any notice or recordkeeping requirements for pre-existing 
satellite digital audio radio Services, as defined in 17 U.S.C. 
114(j)(10), or for pre-existing subscription Services employing 
transmission media other than those used by such Services on July 31, 
1998. RIAA petition at 1-2. This suggestion was based on the fact that 
RIAA and identified Services were engaged in negotiation discussions 
regarding notice and recordkeeping issues for these Services which they 
hoped would result in agreement that would be jointly proposed to the 
Office for adoption in a second rulemaking proceeding. RIAA petition at 
2.
    The Office agrees that there is a need to adopt additional notice 
and recordkeeping requirements for eligible nonsubscription Services at 
this time in order to have them in place when the current CARP 
proceeding is concluded. Adoption of such rules will enable copyright 
owners to receive their royalty payments as expeditiously as possible. 
See U.S. Copyright Office, Order in Docket No. 99-6 CARP DTRA 1 & 2, 
Docket No. 2000-3 CARP DTRA2 (December 4, 2000 Order.)
    The scope of the rules proposed by the Office, however, covers all 
Services that operate under the section 112 and 114 licenses. The 
Office takes this approach because preexisting digital audio satellite 
Services and new types of subscription Services are already in 
operation and should have the benefit of knowing what record keeping 
requirements they must use so that they can structure their businesses 
accordingly. Moreover, it is likely that the basic requirements for 
notice and recordkeeping will be similar for all Services. For this 
reason, the proposed rule is an amended version of the interim rule and 
addresses the notice and record keeping requirements for all categories 
of Services.

2. Elements of Proposed Regulations

    To make it explicit that the provisions of 37 CFR 201.35-201.37 
apply to the Services added by the DMCA, statutory references to them 
have been inserted as appropriate throughout. Also, the statutory 
definition for each Service has been added to the definition sections 
of 37 CFR 201.35-201.37, either expressly or by a cross reference. A 
definition of ``AM/FM Webcast'' has also been included in the 
recordkeeping provisions for section 201.36.
    The Office also proposes amending 37 CFR 201.35-201.37 throughout 
to make those provisions applicable to section 112 licenses in the same 
way that they apply to section 114 licenses, although differences in 
the statutory requirements have been taken into account where 
appropriate. Therefore, statutory references to section 112 licenses 
have been incorporated along with references to section 114 licenses.
    This approach follows RIAA's recommendation with regard to the 
recordkeeping requirements for section 112 licenses. However, while 
RIAA recommended that 37 CFR 201.35 be used as a model for section 112 
notice requirements, it advocated putting the section 112 notice 
requirements in a separate section because ``the existing notice 
regulations are so replete with references to the subject matter of the 
statutory license as to make it confusing to integrate the two notice 
provisions.'' RIAA petition at 11. However, the Copyright Office has 
decided not to follow that approach at this time and proposes to amend 
37 CFR 201.35 to apply its notice provisions to both section 112 and 
114 licenses. The Office does not believe that such an approach is 
confusing, and believes that such an approach is more efficient and 
will result in less paperwork for the Office and for Services operating 
under the statutory license. For example, the proposed rule provides 
that a Service may file a single initial notice stating the Service's 
intention to use either the section 114 statutory license, or the 
section 112 statutory license, or both.
    Initial Notice. The proposed changes to the notice requirements of 
37 CFR 201.35 are intended to apply to situations in which a Service is 
operating under only one license and those in which a Service is 
operating under both. Consistent with that approach, the amended rules 
propose use of a single standard form for both the section 114 license 
and the section 112 license. A Service will be required to expressly 
indicate on a standard form Notice of Use of Sound Recordings under 
Statutory License the license(s) for which the notice is being 
filed.\3\ The form will also require that the Service indicate the 
categories of license (e.g., preexisting subscription service, non-
subscription transmission service, etc.) for which it seeks the 
license. In addition, the Service must provide the date or the expected 
date of the initial digital transmission of a sound recording made 
under section 114 and the date of creation of an ephemeral phonorecord 
made under section 112.
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    \3\ The Notice of Use of Sound Recordings under Statutory 
License would replace the Initial Notice of Digital Transmission of 
Sound Recordings under Statutory License found in the current 
version of section 201.35.
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    The Office proposes to require all Services, including those which 
have previously filed a general Notice of Use for the section 114 
license, to file a new Notice of Use. It is the Office's impression 
that many Services that have filed Initial Notices under the current 
regulation have ceased using the statutory license and, in many cases, 
have gone out of business altogether. Requiring all Services to refile 
a Notice of Use will make the Office's records more reliable, retiring 
records identifying Services that are no longer using the statutory 
license. The Office invites comments on this proposal.
    Moreover, the Office proposes that all Notices of Use be prepared 
using a standard form developed for this purpose. In this way, there 
will be an accurate uniform record currently identifying all Services 
using these statutory licenses, indicating which licenses are to be 
used, the type of transmissions to be made under the section 114 
license, and information concerning the date of first transmission or 
the date for making an ephemeral recording of a sound recording. Under 
current practice, in which parties may submit a notice based on a 
suggested,

[[Page 5763]]

but nonmandatory, format, a Notice is more likely to be misfiled and 
the information in the Notice is less likely to be easily recognized. 
Parties may comment on the elements required as part of the notice, on 
when the updated notice should be filed, and on the layout and utility 
of the proposed standard form. A prototype of the proposed form has 
been posted on the Copyright Office website at: http://www.loc.gov/copyright/forms/form112-114nou.pdf.
    In general, Services transmitting sound recordings under statutory 
license will be required to file an initial notice with the Copyright 
Office as before, including the Service name, address, telephone 
number, and information on how to gain access to the online website or 
home page of the Service or entity, where information may be posted 
under these regulations concerning the use of sound recordings under 
statutory license. If the proposed rules are adopted, the notices will 
be placed in the public file in the Licensing Division of the Copyright 
Office, where copyright owners may go to access the information 
concerning use of sound recordings under the licenses. The Office 
proposes to discontinue its current practice of posting copies of all 
notices on its website. The Office questions the continued utility of 
making this information available on the website, which requires the 
expenditure of substantial resources. It does not appear that removing 
the notices from the website would be likely to deprive interested 
parties of the information found in the notices. The Office proposes to 
provide copies of all notices of use to the Collective or Collectives 
designated through the CARP process to receive and distribute royalties 
under the statutory license, and believes that this, combined with the 
availability of the notices for inspection and copying in the Licensing 
Division, adequately makes the information in the notices available to 
all interested parties.
    Moreover, the Office seeks comment on a possible change to the 
requirement that all notices be filed in the Copyright Office. Would it 
be more efficient for a Service to file its Notice of Use directly with 
the designated collection entity, rather than with the Copyright 
Office? What would be the propriety and efficiencies of having Services 
file Notices of Use not with the Office, but directly with the 
Collective designated to receive royalties from the statutory 
licensees, and requiring the Collective to make the notices available 
to the public for inspection and copying?
    Moreover, the Office is seeking comment on the advisability of 
requiring periodic filings of the notices of use in order to establish 
a continually current and updated file of Services operating under 
either the section 114 and section 112 licenses. If the Office finds 
there is a need for maintaining an updated file, the final rule will 
specify that each Service must file a new Notice of Use with the Office 
every year (or other time period to be determined).
    In any event, a new Service will still be required to file its 
Notice of Use prior to the date of first transmission or the making of 
an ephemeral recording, and a Service will continue to be required to 
update its filing within 45 days of a change in the information 
reported. If notices are to be filed with the Copyright Office, all 
notices shall be accompanied by the filing fee (currently $20) 
specified in section 201.3(c) of title 37 of the Code of Federal 
Regulations. On the other hand, if the Office adopts a rule requiring 
Services to file the Notices of Use directly with the designated 
collective, there is an open question on whether there should be a 
filing fee and how much that fee should be. Interested parties should 
address this issue in their comments to the Office.
    Reports of Use. Where appropriate, the existing recordkeeping 
requirements have been revised to reflect the changes introduced by the 
DMCA by inserting the appropriate statutory references. The proposed 
amendment sets forth specific reporting requirements for each Service 
category. In fashioning the proposed new regulations, the Office is 
adopting RIAA's recommended changes for recordkeeping requirements for 
new subscription Services and for Services making eligible 
nonsubscription transmissions under section 114 and applies the same 
rules to the preexisting satellite digital audio radio Services. In 
addition, the proposed regulations incorporate RIAA's recommendation 
for section 112 recordkeeping requirements. The Office is taking this 
approach because the required information seems designed to accomplish 
the basic reporting objective of providing information with which 
copyright owners can generally monitor compliance with the terms of the 
licenses.
    As before, a preexisting subscription Service making digital 
transmissions in the same transmission medium used by such Service on 
July 31, 1998, would be required to submit reports of use with an 
Intended Playlist containing all the elements required in the Interim 
regulations. No changes have been made to the requirements for those 
Services' Intended Playlists. The amended rules, however, require other 
types of Services to submit Intended Playlists that provide additional 
information, such as the type of program and the time zone from which 
the transmission originated.
    In addition to the information in the Intended Playlists, RIAA has 
made additional requests for information in two instances. In the case 
of eligible nonsubscription transmissions and transmissions made by a 
new subscription Service, RIAA has requested that these Services 
include a ``Listener's Log'' in the Report of Use. The ``Listener's 
Log'' will identify the name of the Service, the channel or program 
accessed, information on the user, such as date and time the user 
logged in and out, the time zone of the place at which the user 
received the transmission, the user identifier, and the country in 
which the user received the transmission. RIAA has also requested that 
a Service making ephemeral phonorecords of sound recordings under 
section 112(e) include an ``Ephemeral Phonorecord Log'' in its record 
of use. The ``Ephemeral Phonorecord Log'' would, among other things, 
include the name of the Service, the date the phonorecord was made or 
destroyed, and specific information about the sound recording from 
which the ephemeral phonorecord was made. Commenters should discuss in 
detail the reasons for including or excluding specific elements of the 
Listener's Log and the Ephemeral Phonorecord Log.
    On its face, the request for the Intended Playlists, Listener's 
Log, and Ephemeral Phonorecord Log seems reasonably based on the 
premise that the copyright owners need certain specific information to 
monitor compliance and use by the Services. In support of its request 
for the detailed information, RIAA argues that the information it seeks 
from the Services is ``easily provided, [] not burdensome, and in fact, 
is currently provided by a number of licensees who have obtained 
licenses through negotiations with the RIAA and/or Sound Exchange.'' 
RIAA Petition at 10-11. RIAA further justifies the need for the 
additional reporting requirements on the basis of differences in 
statutory requirements for the different licenses and on the basis of 
the different business models used within the different categories of 
Services. RIAA petition at 9. Other interested parties, however, may 
find the requirements too stringent and burdensome in spite of RIAA's 
assertions. Such parties should identify any problems they perceive 
with the proposed regulations and explain with specificity the reasons 
why the regulations are unworkable or unduly burdensome, or exceed the 
needs of the copyright owners.

[[Page 5764]]

3. Final Rules vs. Interim Rules

    The Copyright Office issued regulations governing notice and record 
keeping for the preexisting Services operating under the section 114 
statutory licenses as interim regulations because the industry was 
young and there was a reasonable expectation that the rules would need 
revision in a short period of time. The Office, however, intends to 
issue final rules at the conclusion of this proceeding which shall 
govern all Services operating under both the section 112 and section 
114 statutory licenses. Of course, an affected party can always seek 
revision of the rules at a future time if and when the need for change 
arises.

List of Subjects in 37 CFR Part 201

    Copyright, Recordings.

Proposed Regulation

    In consideration of the foregoing, the Copyright Office proposes 
amending part 201 of 37 CFR to read as follows:

PART 201--GENERAL PROVISIONS

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

    Authority: 17 U.S.C. 702.

    2. Sections 201.35 and 201.36 are revised to read as follows:


Sec. 201.35  Notice of Use of Sound Recordings under Statutory License.

    (a) General. This section prescribes rules under which copyright 
owners shall receive notice of use of their sound recordings when used 
under either sections 112(e) or 114(d)(2) of title 17 of the United 
States Code, or both.
    (b) Definitions. (1) A Notice of Use of Sound Recordings under 
Statutory License is a written notice to sound recording copyright 
owners of the use of their works under section 114(d)(2) or section 
112(e) of title 17 of the United States Code, or both, and is required 
under this section to be filed by a Service in the Copyright Office.
    (2) A Service is an entity engaged in either the digital 
transmission of sound recordings pursuant to section 114(d)(2) of title 
17 of the United States Code or making ephemeral phonorecords of sound 
recordings pursuant to section 112(e) of title 17 of the United States 
Code or both. For purposes of this section, the definition of a service 
includes an entity that transmits an AM/FM broadcast signal over a 
digital communications network such as the Internet, regardless of 
whether the transmission is made by the broadcaster that originates the 
AM/FM signal or by a third party, provided that such transmission meets 
the applicable requirements of the statutory license set forth in 17 
U.S.C. 114(d)(2). A Service may be further characterized as either a 
preexisting subscription service, preexisting satellite digital audio 
radio service, new subscription service, non-subscription transmission 
service or a combination of those:
    (i) A preexisting subscription service is a service that performs 
sound recordings by means of noninteractive audio-only subscription 
digital audio transmissions, which was in existence and was making such 
transmissions to the public for a fee on or before July 31, 1998, and 
may include a limited number of sample channels representative of the 
subscription service that are made available on a nonsubscription basis 
in order to promote the subscription service.
    (ii) A preexisting satellite digital audio radio service is a 
subscription satellite digital audio radio service provided pursuant to 
a satellite digital audio radio service license issued by the Federal 
Communications Commission on or before July 31, 1998, and any renewal 
of such license to the extent of the scope of the original license, and 
may include a limited number of sample channels representative of the 
subscription service that are made available on a nonsubscription basis 
in order to promote the subscription service.
    (iii) A new subscription service is a service that performs sound 
recordings by means of noninteractive subscription digital audio 
transmissions and that is not a preexisting subscription service or a 
preexisting satellite digital audio radio service.
    (iv) A non-subscription transmission service is a service that 
makes noninteractive nonsubscription digital audio transmissions that 
are not exempt under subsection 114(d)(1) and are made as part of a 
service that provides audio programming consisting, in whole or in 
part, of performances of sound recordings, including transmissions of 
broadcast transmissions, if the primary purpose of the service is to 
provide to the public such audio or other entertainment programming, 
and the primary purpose of the service is not to sell, advertise, or 
promote particular products or services other than sound recordings, 
live concerts, or other music-related events.
    (c) Forms and content. A Notice of Use of Sound Recordings under 
Statutory License shall be prepared on a form that may be obtained from 
the Copyright Office website or from the Licensing Division, and shall 
include the following information:
    (1) The full legal name of the Service that is either commencing 
digital transmission of sound recordings or making ephemeral 
phonorecords of sound recordings under statutory license or doing both.
    (2) The full address, including a specific number and street name 
or rural route, of the place of business of the Service. A post office 
box or similar designation will not be sufficient except where it is 
the only address that can be used in that geographic location.
    (3) The telephone number and facsimile number of the Service.
    (4) Information on how to gain access to the online website or home 
page of the Service, or where information may be posted under this 
section concerning the use of sound recordings under statutory license.
    (5) Identification of each license under which the Service intends 
to operate, including the identification of each of the following 
categories under which the Service will be making digital transmissions 
of sound recordings: preexisting subscription service, preexisting 
digital audio radio service, new subscription service and non-
subscription transmission service.
    (6) The date or expected date of the initial digital transmission 
of a sound recording to be made under the section 114 statutory license 
and/or the date or the expected date of the initial use of the section 
112(e) license for the purpose of making ephemeral recordings of the 
sound recordings.
    (7) Identification of any amendments required by paragraph (f) of 
this section.
    (d) Signature. The Notice shall include the signature of the 
appropriate officer or representative of the Service that is either 
transmitting sound recordings or making ephemeral phonorecords of sound 
recordings under statutory license or doing both. The signature shall 
be accompanied by the printed or typewritten name and the title of the 
person signing the Notice, and by the date of the signature.
    (e) Filing notices; Fees. The original Notice and three copies 
shall be filed with the Licensing Division of the Copyright Office, and 
shall be accompanied by the filing fee set forth in Sec. 201.3(c) of 
this part. Notices shall be placed in the public records of the 
Licensing Division. The address of the Licensing Division is: Library 
of Congress, Copyright Office, Licensing Division, 101 Independence 
Avenue, SE., Washington, DC 20557-6400.
    (1) A Service that, prior to [the effective date of the final 
rule], has already commenced making digital transmissions of sound 
recordings pursuant to section 114(d)(2) of title 17

[[Page 5765]]

of the United States Code or making ephemeral phonorecords of sound 
recordings pursuant to section 112(e) of title 17 of the United States 
Code, or both, and that has already filed an Initial Notice of Digital 
Transmission of Sound Recordings under Statutory License, and that 
intends to continue to make digital transmissions or ephemeral 
phonorecords following [the effective date of the final rule], shall 
file a Notice of Use of Sound Recordings under Statutory License with 
the Licensing Division of the Copyright Office no later than 60 days 
following [the effective date of the final rule].
    (2) A Service that, on or after [the effective date of the final 
rule], commences making digital transmissions and ephemeral 
phonorecords of sound recordings under statutory license shall file a 
Notice of Use of Sound Recordings under Statutory License with the 
Licensing Division of the Copyright Office prior to the making of the 
first ephemeral phonorecord of the sound recording and prior to the 
first digital transmission of the sound recording.
    (3) A Service that, on or after [the effective date of the final 
rule], commences making only ephemeral phonorecords of sound 
recordings, shall file a Notice of Use of Sound Recordings under 
Statutory License with the Licensing Division of the Copyright Office 
prior to the making of the first ephemeral recording under the 
statutory license.
    (f) Amendment. A Service shall file a new Notice of Use of Sound 
Recordings under Statutory License within 45 days after any of the 
information contained in the Notice on file with the Licensing Division 
has changed, and shall indicate in the space provided on the form 
provided by the Copyright Office that the Notice is an amended filing. 
The Licensing Division shall retain copies of all prior Notices filed 
by the Service.


Sec. 201.36  Report of Use of Sound Recordings under Statutory License.

    (a) General. This section prescribes rules under which Services 
shall serve copyright owners with reports of use of their sound 
recordings under either section 112(e) or section 114(d)(2) of title 17 
of the United States Code, or both.
    (b) Definitions. (1) A Report of Use of Sound Recordings under 
Statutory License is a report required under this section to be 
provided by a Service that is either transmitting sound recordings or 
making ephemeral phonorecords of sound recordings under statutory 
license or both.
    (2) A Service shall have the same definition as provided in 
Sec. 201.35(b)(2) of this part.
    (3) An AM/FM Webcast is a transmission made by an entity that 
transmits an AM/FM broadcast signal over a digital communications 
network such as the Internet, regardless of whether the transmission is 
made by the broadcaster that originates the AM/FM signal or by a third 
party, provided that such transmission meets the applicable 
requirements of the statutory license set forth in 17 U.S.C. 114(d)(2).
    (4) A Collective is a collection and distribution organization that 
is designated under one or both of the statutory licenses, either by 
settlement agreement reached under section 112(e)(3), section 
112(e)(6), section 114(f)(1)(A), section 114(f)(1)(C)(i), section 
114(f)(2)(A), or section 114(f)(2)(C)(i) and adopted pursuant to 37 CFR 
251.63(b), or by an order of the Librarian pursuant to 17 U.S.C. 
802(f).
    (c) Service. Reports of Use shall be served upon Collectives 
designated under the applicable statutory license that are identified 
in the records of the Licensing Division of the Copyright Office as 
having been designated under the statutory license, either by 
settlement agreement reached under section 112(e)(3), section 
112(e)(6), section 114(f)(1)(A), section 114(f)(1)(C)(i), section 
114(f)(2)(A), or section 114(f)(2)(C)(i) and adopted pursuant to 37 CFR 
251.63(b), or by decision of a Copyright Arbitration Royalty Panel 
(CARP) under section 112(e)(4), section 112(e)(6), section 
114(f)(1)(B), section 114(f)(1)(C)(ii), section 114(f)(2)(B), or 
section 114(f)(2)(C)(ii) or by an order of the Librarian pursuant to 17 
U.S.C. 802(f). Reports of Use shall be served, by certified or 
registered mail, or by other means if agreed upon by the respective 
Service and Collective, on or before the twentieth day after the close 
of each month, commencing with [the month succeeding the month in which 
the final rule becomes effective].
    (d) Posting. In the event that no Collective is designated under 
the applicable statutory license, or if all designated Collectives have 
terminated collection and distribution operations, a Service 
transmitting sound recordings under statutory license shall post and 
make available online its Reports of Use. Services shall post their 
Reports of Use online on or before the 20th day after the close of each 
month, and make them available to all sound recording copyright owners 
for a period of 90 days. Services may require use of passwords for 
access to posted Reports of Use, but must make passwords available in a 
timely manner and free of charge or other restrictions. Services may 
predicate provision of a password upon:
    (1) Information relating to identity, location and status as a 
sound recording copyright owner; and
    (2) A ``click-wrap'' agreement not to use information in the Report 
of Use for purposes other than royalty collection, royalty 
distribution, and determining compliance with statutory license 
requirements, without the express consent of the Service providing the 
Report of Use.
    (e) Content. (1) Heading. A ``Report of Use of Sound Recordings 
under Statutory License'' shall be identified as such by prominent 
caption or heading,
    (2) Intended Playlists. For a Service making digital transmissions 
of sound recordings pursuant to a statutory license under 17 U.S.C. 
114(d)(2), each report of use shall include a Service's ``Intended 
Playlists'' for each channel on each day of the reported month.
    (i) In the case of transmissions of sound recordings made pursuant 
to a statutory license under 17 U.S.C. 114(d)(2) by a Service that is a 
preexisting subscription service in the same transmission medium used 
by such Service on July 31, 1998, the ``Intended Playlists'' shall 
include a consecutive listing of every recording scheduled to be 
transmitted, and shall contain the following information in the 
following order:
    (A) The name of the Service or entity;
    (B) The channel;
    (C) The sound recording title;
    (D) The featured recording artist, group, or orchestra;
    (E) The retail album title (or, in the case of compilation albums 
created for commercial purposes, the name of the retail album 
identified by the Service for purchase of the sound recording);
    (F) The recording label;
    (G) The catalog number;
    (H) The International Standard Recording Code (ISRC) embedded in 
the sound recording, where available and feasible;
    (I) The date of transmission; and
    (J) The time of transmission.
    (ii) In the case of all other Services not covered by paragraph 
(e)(2)(i) of this section, that are transmitting sound recordings 
pursuant to a statutory license under 17 U.S.C. 114(d)(2), the 
``Intended Playlists'' shall include a consecutive listing of every 
recording scheduled to be transmitted, or if transmissions are not 
scheduled in advance, every recording actually transmitted, and shall 
contain the following information in the following order:

[[Page 5766]]

    (A) The name of the Service or entity;
    (B) The channel or program; or in the case of an AM/FM Webcast, the 
station identifier used by the Service, including the band designation 
and the FCC facility identification number of the broadcast station 
that is transmitted; provided that if a program is generated as a 
random list of sound recordings from a predetermined list, the channel 
or program must be a unique identifier differentiating each user's 
randomized playlist from all other users' randomized playlists;
    (C) The type of program: ``A'' (for an ``archived program'' as 
defined section 114(j)(2)), ``L'' (for ``looped'' if the program is a 
``continuous program'' as defined in section 114(j)(4)), ``V'' (for 
``live'' if the program is transmitted substantially at the time it is 
first performed in its entirety), or ``PS'' (for ``prescheduled'' if 
the program is an identifiable program transmitted at times that have 
been publicly announced in advance);
    (D) For programs other than archived programs, the date of 
transmission;
    (E) For programs other than archived programs; the time of 
transmission of the sound recording;
    (F) The time zone of the place from which the transmission 
originated (as an offset from Greenwich Mean Time);
    (G) For archived programs, the numeric designation of the place of 
the sound recording within the order of the program;
    (H) The duration of the transmission of the sound recording (to the 
nearest second);
    (I) The sound recording title;
    (J) The International Standard Recording Code (ISRC) embedded in 
the sound recording, where available and feasible;
    (K) The release year identified in the copyright notice on the 
album and, in the case of compilation albums created for commercial 
purposes, the release year identified in the copyright notice for the 
individual track;
    (L) The featured recording artist, group, or orchestra;
    (M) The retail album title (or, in the case of compilation albums 
created for commercial purposes, the name of the retail album 
identified by the Service for purchase of the sound recording);
    (N) The recording label;
    (O) The Universal Product Code of the retail album;
    (P) The catalog number;
    (Q) The copyright owner information provided in the copyright 
notice on the retail album (e.g., following the symbol (P)) 
or, in the case of compilation albums created for commercial purposes, 
in the copyright notice for the individual track; and
    (R) The musical genre of the channel or program, or in the case of 
AM/FM Webcast, the broadcast station format.
    (3) Listener's Log. Except for a preexisting subscription Service, 
a Service that transmits sound recordings pursuant to a statutory 
license under 17 U.S.C. 114(d)(2) shall also include such Service's 
``Listener Log.'' The ``Listener Log'' shall contain the following 
information in the following order for each session during which a user 
is logged in to receive transmissions as part of the Service:
    (i) The name of the Service or entity;
    (ii) The channel or program, using an identifier corresponding to 
that in the Intended Playlist;
    (iii) The date and time that the user logged in (local time at 
user's location);
    (iv) The date and time that the user logged out (local time at the 
user's location);
    (v) The time zone of the place at which the user received 
transmissions (as an offset from Greenwich Mean Time);
    (vi) The unique user identifier assigned to a particular user or 
session; and
    (vii) The country in which the user received transmissions.
    (4) Ephemeral Phonorecord Log. In the case of a Service that has 
made ephemeral phonorecords of sound recordings pursuant to a statutory 
license under 17 U.S.C. 112(e), the Service shall include an 
``Ephemeral Phonorecord Log.'' The ``Ephemeral Phonorecord Log'' shall 
contain the following information in the following order for each act 
of creation or destruction of ephemeral phonorecords of sound 
recordings under statutory license:
    (i) The name of the Service or entity;
    (ii) Whether the ephemeral phonorecord was created or destroyed;
    (iii) The date the ephemeral phonorecord was created or destroyed;
    (iv) The sound recording title;
    (v) The International Standard Recording Code (ISRC) embedded in 
the sound recording, where available and feasible;
    (vi) The release year identified in the copyright notice on the 
album and, in the case of compilation albums created for commercial 
purposes, the release year identified in the copyright notice for the 
individual track;
    (vii) The featured recording artist, group or orchestra;
    (viii) The retail album title (or, in the case of compilation 
albums created for commercial purposes, the name of the retail album 
identified by the Service for purchase of the sound recording);
    (ix) The recording label;
    (x) The catalog number;
    (xi) The Universal Product Code of the retail album;
    (xii) The copyright owner information provided in the copyright 
notice of the retail album (e.g. following the symbol  
(P)) or, in the case of compilation albums created for 
commercial purposes, in the copyright notice for the individual track; 
and
    (xiii) The number of ephemeral phonorecords that were created or 
destroyed.
    (5) System failure. The Report of Use shall include a report of any 
system failure resulting in a deviation from the Intended Playlists of 
scheduled sound recordings. Such report shall include the date, time 
and duration of any system failure.
    (f) Signature. Reports of Use shall include a signed statement by 
the appropriate officer or representative of the Service attesting, 
under penalty of perjury, that the information contained in the Report 
is believed to be accurate and is maintained by the Service in its 
ordinary course of business. The signature shall be accompanied by the 
printed or typewritten name and title of the person signing the Report, 
and by the date of signature.
    (g) Format. Reports of Use should be provided on a standard 
machine-readable medium, such as diskette, optical disc, or magneto-
optical disc, and should conform as closely as possible to the 
following specifications:
    (1) In the case of transmissions made as part of a Service that is 
a preexisting subscription Service in the same transmission medium used 
by such Service on July 31, 1998:
    (i) ASCII delimited format, using pipe characters as delimiter, 
with no headers or footers;
    (ii) Carats (caret) should surround strings;
    (iii) No carats (caret ) should surround dates and 
numbers;
    (iv) Dates should be indicated by: MM/DD/YYYY;
    (v) Times should be based on a 24-hour clock: HH:MM:SS;
    (vi) A carriage return should be at the end of each line; and
    (vii) All data for one record should be on a single line.
    (2) In the case of all other Services not covered by paragraph 
(g)(1) of this section that are transmitting sound recordings pursuant 
to a statutory license under 17 U.S.C. 114(d)(2) and in the case of 
Ephemeral Phonorecord Logs:
    (i) ASCII delimited format, using pipe characters as delimiter, 
with no headers or footers;
    (ii) Field names should not be included as the first row of the 
file;

[[Page 5767]]

    (iii) Carats (caret) should surround strings;
    (iv) No carats (caret) should surround dates and 
numbers;
    (v) Dates and times should be indicated by: DDMMYYYYhhmmss, where 
DD is the two-digit day of the log period; MM is the two-digit month of 
the log period; YYYY is the four-digit year of the log period; hh is 
the two-digit hour of the log period; mm is the two-digit minute of the 
log period; ss is the two-digit second of the log period; single digit 
days, months, hours, minutes and second should be prepended with a 
zero; and times are local times using a 24-hour clock;
    (vi) A carriage return should be at the end of each line;
    (vii) All data for one record should be on a single line;
    (viii) All data for each month and each log type should be 
contained in a single file;
    (ix) Files may be compressed in ZIP or GZ format; and
    (x) Files should be named Service Name_Log Type_MMYYYY, where Log 
Type should be Play List, Listener or Ephemeral.
    (h) Confidentiality. Copyright owners, their agents and Collectives 
shall not disseminate information in the Reports of Use to any persons 
not entitled to it, nor utilize the information for purposes other than 
royalty collection and distribution, and determining compliance with 
statutory license requirements, without express consent of the Service 
providing the Report of Use.
    (i) Documentation. All statutory licensees shall, for a period of 
at least three years from the date of service or posting of the Report 
of Use, keep and retain a copy of the Report of Use. For reporting 
periods from February 1, 1996, through August 31, 1998, the Service 
shall serve upon all designated Collectives and retain for a period of 
three years from the date of transmission records of use indicating 
which sound recordings were performed and the number of times each 
recording was performed, but is not required to produce full Reports of 
Use or Intended Playlists for those periods.
    3. Section 201.37 (a) and (b) are revised to read as follows:


Sec. 201.37  Designated Collective.

    (a) General. This section prescribes rules governing a Collective 
designated to collect and distribute statutory royalties for use of the 
statutory licenses set forth in sections 112(e) and 114(d)(2) of title 
17 of the United States Code.
    (b) Definitions. (1) A Collective shall have the same definition as 
provided in Sec. 201.36(b)(4) of this part.
    (2) A Service shall have the same definition as provided in 
Sec. 201.35(b)(2) of this part.
* * * * *

    Dated: February 1, 2002.
David O. Carson,
General Counsel.
[FR Doc. 02-2842 Filed 2-6-02; 8:45 am]
BILLING CODE 1410-31-P