[Federal Register Volume 68, Number 195 (Wednesday, October 8, 2003)]
[Proposed Rules]
[Page 58054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25523]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2002-1D]


Notice and Recordkeeping for Use of Sound Recordings Under 
Statutory License

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of inquiry.

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SUMMARY: The Copyright Office of the Library of Congress is requesting 
public comment on the adoption of regulations for records of use of 
sound recordings performed pursuant to the statutory license for public 
performances of sound recordings by means of digital audio 
transmissions between October 28, 1998, and the effective date of soon-
to-be-announced interim regulations.

DATES: Comments are due no later than November 24, 2003. Reply comments 
are due no later than December 22, 2003.

ADDRESSES: An original and five copies of any comment or reply comment 
shall be delivered by hand to: Office of the General Counsel, James 
Madison Memorial Building, Room LM-403, First and Independence Avenue, 
SE., Washington, DC 20559-6000; or mailed to: Copyright Arbitration 
Royalty Panel (CARP), PO Box 70977, Southwest Station, Washington, DC 
20024-0977.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
William J. Roberts, Jr., Senior Attorney, PO Box 70977, Southwest 
Station, Washington, DC 20024. 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, satellite digital audio radio, business establishment 
and new subscription services to perform those sound recordings 
publicly by means of digital audio transmissions. 17 U.S.C. 114.
    Similarly, 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, satellite digital 
audio, business establishment and new subscription services to make 
ephemeral copies of those sound recordings to facilitate their digital 
transmission. 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 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 ensure that the royalties 
collected under the statutory licenses are distributed to the correct 
recipients.
    The Copyright Office will soon be publishing interim regulations 
setting forth the categories of information that services making use of 
sound recordings under the statutory licenses must report. Those 
interim regulations will require services to identify performances of 
sound recordings that they transmit pursuant to the statutory license, 
providing information such as the titles of sound recordings that are 
transmitted, the names of the recording artists, etc. However, the 
interim regulations will be prospective in nature, meaning that they 
will not apply to the period from October 28, 1998, to the effective 
date of the interim rules. Consequently, there are currently no 
regulations establishing the requirements for creating and reporting 
records of use for this earlier time period.\1\ While it is certain 
that many services have maintained few or, in many instances, no 
records of prior uses, a mechanism must be adopted to account for the 
performances that occurred during this period in order to distribute 
the royalty fees collected during this period. Thus, we seek public 
comment as to the form and content such regulations should take.
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    \1\ There is one exception. Regulations, codified at 37 CFR 
201.36, are already in place for preexisting subscription services, 
i.e., subscription services in existence before July 31, 1998. See 
17 U.S.C. 114(j)(11); see also 67 FR 5791 (February 7, 2002). This 
notice of inquiry seeks comments on requirements for records of use 
for all types of services operating under the section 114 statutory 
license except preexisting subscription services.
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Request for Comment

    Incomplete and absent records create serious difficulties for the 
Copyright Office in fashioning regulations that apply to prior uses of 
sound recordings. If only partial prior records of use are reported, 
and if only some services are able to submit such reports, the data 
gathered from those records is likely to skew the royalty distribution 
process. How should the Office address this problem? Should the Office 
require licensees to report actual performance data for the historical 
period, if available; and if so, what elements should be reported, 
bearing in mind that the information provided must be sufficient to 
identify the copyright owners and performers who are the beneficiaries 
of these licenses? What, if any, proxies may be used in lieu of 
incomplete or missing prior records? Are there costs associated with 
using proxies, and if so, who should bear the cost of obtaining use of 
these proxies?
    The Copyright Office seeks answers to these questions and 
encourages interested parties to consider the costs and benefits to 
both the licensees and the copyright owners when formulating a 
mechanism for accounting for past performances. In particular, we seek 
concrete proposals and proposed regulatory language to implement rules 
for the reporting of prior records of use. Services and copyright 
owners are encouraged to explore the possibility of joint submissions 
of comments that represent consensus among interested parties.

    Dated: October 3, 2003.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 03-25523 Filed 10-7-03; 8:45 am]
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