[Federal Register Volume 67, Number 184 (Monday, September 23, 2002)]
[Notices]
[Pages 59573-59576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24017]


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

LIBRARY OF CONGRESS

Copyright Office

[Docket No. RM 2002-1B]


Notice and Recordkeeping for Use of Sound Recordings Under 
Statutory Licenses

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice requesting written proposals and announcing status 
conference.

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

[[Page 59574]]

SUMMARY: The Copyright Office of the Library of Congress is requesting 
interested parties to submit written proposals governing data format 
and delivery for recordkeeping requirements to be established by the 
Copyright Office, under the authority of the Librarian of Congress, for 
the section 112 and section 114 statutory licenses. The Office will 
also conduct a status conference to discuss the formatting 
requirements.

DATES: Written proposals must be received in the Copyright Office by 
September 30, 2002. A status conference will be held on October 8, 2002 
at 10 a.m.

ADDRESSES: An original and ten copies of written proposals should be 
brought to: Office of the General Counsel, Copyright Office, James 
Madison Memorial 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. 
The October 8, 2002, status conference will be held in the CARP Hearing 
Room, Room LM-414, located on the fourth floor of the James Madison 
Memorial Building of the Library of Congress, First Street and 
Independence Avenue, SE., Washington, DC.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
William J. Roberts, Jr., 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 Copyright Act grants copyright owners of sound recordings the 
exclusive right to perform their works publicly by means of digital 
audio transmissions subject to certain limitations and exceptions. 
Among the limitations placed on the performance of sound recordings is 
a statutory license that permits certain eligible subscription, 
nonsubscription and satellite digital audio services to perform those 
sound recordings publicly by means of digital audio transmissions. 17 
U.S.C. 114.
    Similarity, copyright owners of sound recordings are granted the 
exclusive right to make copies of their works subject to certain 
limitations and exceptions. Among the limitations placed on the 
reproduction of sound recordings is a statutory license that permits 
certain eligible subscription, nonsubscription and satellite digital 
audio services to make ephemeral copies of those sound recordings to 
facilitate their digital transmission under the section 114 license. 17 
U.S.C. 112(e).
    Both the section 114 and 112 licenses require services to, among 
other things, report to copyright owners of sound recordings on the use 
of their works. Both licenses direct the Librarian of Congress to 
establish regulations to give copyright owners reasonable notice of the 
use of their works and create and maintain records of the use for 
delivery to copyright owners. 17 U.S.C. 114(f)(4)(A) and 17 U.S.C. 
112(e)(4). The purpose of the exchange of data is to enable copyright 
owners of sound recordings to distribute royalties collected under the 
statutory licenses to the correct recipients.
    In 1998, the Copyright Office issued interim notice and 
recordkeeping regulations for subscription digital audio transmission 
services that, at the time, were the only services eligible for the 
statutory licenses. The Digital Millennium Copyright Act, Pub. L. No. 
105-304, 112 Stat. 2860 (1998), expanded the pool of digital audio 
services eligible for the licenses making additional notice and 
recordkeeping regulations necessary. On February 7, 2002, the Office 
published a Notice of Proposed Rulemaking (``NPRM'') using the 1998 
interim regulations as the guidepost. The Office received public 
comments and, on May 10, 2002, the Office held a public meeting with 
representatives of copyright owners and users of the statutory licenses 
to assist in the formulation of regulations for notice and 
recordkeeping. Subsequently, the Office announced on the Copyright 
Office website that it would be announcing interim notice and 
recordkeeping regulations to establish transitional reporting 
requirements for services using the section 114 statutory license to 
perform sound recordings publicly by means of digital audio 
transmissions and the section 112 statutory license to make ephemeral 
recordings of sound recordings.
    As the announcement on the Copyright Office website stated, these 
transitional requirements will require services using the statutory 
licenses to report the following information for a certain period of 
time during each calendar quarter:
    1. The name of the service submitting the report;
    2. The transmission category of the service [upon further analysis, 
the Office believes that the following categories need be designated: 
eligible nonsubscription services; preexisting satellite digital audio 
radio services; new subscription services; non-Corporation for Public 
Broadcasting, noncommercial broadcasters making transmissions covered 
by 37 CFR 261.3(a)(2)(i) and (ii); \1\ non-Corporation for Public 
Broadcasting, noncommercial broadcasters making transmissions covered 
by 37 CFR 261.3(a)(2)(iii); \2\ and business establishment services 
making ephemeral phonorecords]; \3\ and
---------------------------------------------------------------------------

    \1\ Transmissions covered by these provisions include 
simultaneous Internet retransmission by non-Corporation for Public 
Broadcasting, noncommercial broadcasters of over-the-air AM or FM 
broadcasts by the same radio station and other Internet transmission 
of non-Corporation for Public Broadcasting, noncommercial 
broadcasters, including up to two side channels of programming 
consistent with the mission of the station, and are subject to a 
section 114 royalty of 0.02[cent] per performance.
    \2\ Transmission covered by this provision include Internet 
transmissions on other side channels of programming by non-CPB, 
noncommercial broadcasters, and are subject to a section 114 royalty 
of 0.07[cent] per performance.
    \3\ The transmission categories noted here are not identical to 
the categories set forth in the announcement on the Copyright Office 
website. The current list of categories has been revised to take 
into account the various rates for different kinds of services 
established by the Order of the Librarian of Congress establishing 
rates and terms for the statutory license for eligible 
nonsubscription services. See 67 FR 45239 (July 8, 2002).
---------------------------------------------------------------------------

    3. For each sound recording transmitted by the service during the 
relevant period:
    a. The featured recording artist;
    b. The sound recording title;
    c. The name of the record album containing the sound recording, if 
in the possession of the service, or supplied to the service, at or 
before the time of the performance;
    d. The marketing label of the sound recording, if in the possession 
of the service, or supplied to the service, at or before the time of 
the performance; and
    e. The total number of performances of the sound recording (i.e., 
the number of times the sound recording is performed multiplied by the 
number of recipients of each performance) during the relevant reporting 
period.
    The transitional requirements will apply prospectively to reporting 
by qualified nonsubscription services (e.g., webcasters), preexisting 
satellite digital audio radio services, new subscription services, and 
business establishment services making ephemeral phonorecords. 
Preexisting subscription services will continue to be governed by the 
existing reporting requirements found at 37 CFR 201.36.
    It is anticipated that these interim requirements will be replaced 
after several months by final requirements, which are likely to require 
more comprehensive reporting. Moreover,

[[Page 59575]]

reporting requirements for the period commencing October 28, 1998 until 
the effective date of these interim regulations will be announced in 
the future. Until that announcement, services are cautioned that they 
should retain all records pertaining to performances of sound 
recordings during that period.
    One of the issues that must be addressed in the interim 
regulations--and is the subject of today's request for written 
proposals--is the format in which recordkeeping data must be maintained 
by services using the statutory licenses, and the method or methods for 
delivery of the data to SoundExchange, which is the officially 
designated Receiving Agent for receiving section 114 and 112 royalty 
fees. See 37 CFR 261.4(b). As a preliminary matter, the Office has 
determined that data must be maintained in electronic format for 
delivery to SoundExchange; data in hard copy format is not acceptable. 
The issue, then, is the technical specifications of the electronic 
reports that will make the data stored therein usable.
    By way of illustration, in the NPRM, the Office proposed the 
following format requirements, which included some data fields that are 
no longer being considered:
    Format. Reports of Use should be provided on a standard machine-
readable medium, such as a diskette, optical disc, or magneto-optical 
disc, and should conform as closely as possible to the following 
specifications:
    (1) * * * \4\
---------------------------------------------------------------------------

    \4\ The provisions of this subsection apply to pre-existing 
subscription services and remain in effect. See 63 Fr 34289 (June 
24, 1998).
---------------------------------------------------------------------------

    (2) * * *
    (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;
    (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 period; single digit 
days, months, hours, minutes and seconds should be prepended with a 
zero; and times are local 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.

67 FR at 5766-5767. The Office received virtually no public comment on 
the proposed format requirements in either the written comments or the 
reply comments.
    Formatting of recordkeeping data was addressed periodically at the 
May 10, 2002, public meeting, although mostly in the context of whether 
records have been maintained in electronic or hard copy format. The 
specifics of the proposed format regulation in the NPRM were not 
discussed.
    Subsequent to the May 10 public meeting, the Office met with 
representatives of RIAA and SoundExchange and with representatives of 
broadcasters and webcasters to discuss format requirements in an effort 
to speed the process for issuing interim regulations that will begin 
reporting of data required by the section 114 and 112 licenses. It was 
apparent from both these meetings that the requirements proposed in the 
NPRM are not sufficiently detailed and will likely cause confusion and 
error in the reporting of recordkeeping data. Unfortunately, there was 
no consensus as to the specifics for formatting data.

Request for Written Proposals

    In the interest of crafting data format regulations that are 
efficient, cost effective and reduce the incidences of reporting error, 
the Copyright Office is requesting both copyright owners and users of 
the section 114 and 112 licenses for digital audio transmissions to 
submit their written proposals for specifications to be included in 
regulations adopting the electronic format for recordkeeping data. Such 
proposals should include specific regulatory language along with a 
brief explanation of the reasons for adopting such language. Interested 
parties should also include in their written proposals acceptable means 
of data delivery (such as via e-mail attachment, delivery to an ftp 
site, physical delivery of a diskette, etc.) as well as any other 
technical requirements necessary to facilitate the effective exchange 
of data. The proposals should assume that the substantive reporting 
requirements will be the requirements outlined above (name of service, 
transmission category of service, and the five categories of 
information identifying each sound recording performed).
    Proposals should include requirements that are or can be compatible 
with software used by webcasters in connection with programming or 
reporting of performances of sound recordings. The interim regulations 
will also provide that webcasters be able to report on the use of sound 
recordings by recording the required information in spreadsheets in 
formats compatible with commonly used spreadsheet software. The Office 
intends to require that SoundExchange make templates for such 
spreadsheets available for downloading on its website and on the 
Copyright Office website. Proposals for formatting requirements should 
be compatible with this requirement and ideally should include samples 
of compatible spreadsheets.
    Comments are also solicited on whether the reporting on the 
transmission category of the service should include only the categories 
set forth above,\5\ and whether there is any reason why the reports by 
services should identify whether the services are using only the 
section 114 statutory licence or are also using the section 112 
statutory license. Proponents of a requirement to identify whether a 
service is using the section 112 statutory license should take account 
of such a requirement in their proposals regarding formatting.
---------------------------------------------------------------------------

    \5\ See the text accompanying footnote 3.
---------------------------------------------------------------------------

    The Office encourages copyright owners, broadcasters and webcasters 
to work together to agree on formatting requirements that will serve 
all of their needs, and to submit joint proposals or comments if 
possible.
    Written proposals are due by September 30, 2002.

Status Conference

    The Office will hold a status conference on October 8, 2002, at 
10:00 a.m. in the CARP Hearing Room, Room LM-414, located on the fourth 
floor of the James Madison Memorial Building of the Library of 
Congress, First Street and Independence Avenue, SE, Washington, DC. The 
purpose of the status conference will be to discuss the formatting 
requirements for the notice and recordkeeping regulations.


[[Page 59576]]


    Dated: September 17, 2002.
David O. Carson,
General Counsel.
[FR Doc. 02-24017 Filed 9-20-02; 8:45 am]
BILLING CODE 1410-33-P