[Federal Register Volume 69, Number 150 (Thursday, August 5, 2004)]
[Proposed Rules]
[Pages 47396-47399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17939]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. RM 2004-3]


Acquisition and Deposit of Unpublished Audio and Audiovisual 
Transmission Programs

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This notice is issued to inform the public that the Copyright 
Office of the Library of Congress is proposing to amend its regulations 
to permit the Library of Congress to record unpublished radio and other 
audio and audiovisual transmission programs. The Copyright Office 
regulations already provide for the Library of Congress to obtain 
copies of unpublished television transmission programs, either by 
recording fixations or by demanding copies in the form of a transfer, 
loan or sale at cost. This revised regulation makes similar provisions 
for audio transmission programs and includes transmission programs made 
available by radio broadcasts and by digital communications networks 
such as the Internet.

DATES: Comments are due by September 7, 2004.

ADDRESSES: If hand delivered by a private party, an original and five 
copies of any comment should be brought to: Room LM-401 of the James 
Madison Memorial Building and addressed as follows: Office of the 
General Counsel, U.S. Copyright Office, James Madison Memorial 
Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC 
20559-6000. If delivered by a commercial, non-government courier or 
messenger, an original and five copies of any comment must be delivered 
to the Congressional Courier Acceptance Site located at 2nd and D 
Streets, NE., between 8:30 a.m. and 4 p.m. The envelope should be 
addressed as follows: Copyright Office General Counsel, Room LM-403, 
James Madison Memorial Building, 101 Independence Avenue, SE., 
Washington, DC. If sent by mail, an original and five copies of any 
comment should be addressed to: Copyright GC/I&R, P.O. Box 70400, 
Southwest Station, Washington, DC 20024-0400. Comments may not be 
delivered by means of overnight delivery services such as Federal 
Express, United Parcel Service, etc., due to delays in processing 
receipt of such deliveries.

[[Page 47397]]


FOR FURTHER INFORMATION CONTACT: Charlotte Douglass, Principal Legal 
Advisor to the General Counsel, Office of the Copyright General 
Counsel, Telephone: (202) 707-8380; Fax: (202) 707-8366.

SUPPLEMENTARY INFORMATION: The collections of the Library of Congress 
serve as a repository of a vast number of works. The largest library in 
the world, the Library of Congress comprises more than 127 million 
items. In addition to acquiring works by purchase, gift and exchange, 
the Library acquires copies of works submitted to the Copyright Office 
for registration or mandatory deposit. 17 U.S.C. 408, 407. In fiscal 
year 2003, the incentives of voluntary copyright registration made 
nearly one million copies of works available to the Library of Congress 
for its collections. Of the 962,119 copies and phonorecords the Office 
transferred to the Library of Congress, 491,219 arrived under the 
mandatory deposit provisions of the copyright law. U.S. Copyright 
Office, 106th Annual Report of the Register of Copyrights 2003, at 12 
(2003). However, registration and mandatory deposit do not provide the 
Library with sufficient copies of certain types of works. For example, 
the Library does not predictably acquire a significant body of 
unpublished radio and television transmission programs.
    Late in deliberations on the bill that became the 1976 Copyright 
Act, concern arose about whether mandatory deposit of only published 
works would be sufficient for the Library's collections, given that 
owners of publicly disseminated broadcasts were not obligated to 
deposit their works in the Library of Congress. The Register of 
Copyrights expressed that concern in the Second Supplementary Report, 
observing that transmission programs ``are disseminated widely to the 
public and reproductions of them should be maintained in an archive in 
the Library of Congress.* * *'' U.S. Copyright Office, Second 
Supplementary Report of the Register of Copyrights on the General 
Revision of the U.S. Copyright Law, Chapter XIII, at 15-16 (1975). On 
that basis, the report recommended that section 407 be amended ``to 
require deposit of copies or phonorecords of copyrighted transmission 
programs under appropriate conditions.'' Id. at 16. Thereafter, the 
copyright bill provided a basis for the Library of Congress to acquire 
copies and phonorecords of non-syndicated radio and television 
transmission programs without imposing any hardships on broadcasters. 
H.R. Rep. No. 94-1476, at 152 (1976). This was accomplished by giving 
the Library authority to record unpublished transmission programs in 
all cases where the copyright owner had made or authorized a fixation 
of the program. Additionally, the Copyright Office was given demand 
authority to obtain fixations of these programs by transfer, loan, or 
sale at cost. Id.
    The copyright law defines a transmission program as a body of 
material that, as an aggregate, has been produced for the sole purpose 
of transmission to the public in sequence and as a unit. 17 U.S.C. 101. 
Under section 407(e), the Librarian of Congress may make a fixation of 
an unpublished transmission program that has been fixed and transmitted 
to the public in the United States. The Library may make the fixation 
directly from a transmission to the public, and may reproduce one copy 
or phonorecord from such fixation for archival purposes. 17 U.S.C. 
407(e)(1). With respect to the registration of these programs, when 
copyright applications and fees are timely and properly submitted, the 
recorded or demanded fixations can be used as registration deposits.
    In 1983, the Copyright Office promulgated regulations under section 
407(e) to permit the Library to record unpublished television programs. 
48 FR 37208 (Aug. 17, 1983). The amendment proposed today expands 
existing regulations for television to radio and other audio and 
audiovisual transmission programs. As is currently the case, the 
regulation establishes a presumption that noncommercial television 
programs are unpublished, while it provides a procedure for the 
copyright owner to overcome that presumption. Commercial television 
programs are not presumed to be unpublished under the existing 
regulation. However, consistent with the Library's acquisition 
experience through registration and deposit, this amendment presumes 
that both commercial and noncommercial radio transmission programs are 
unpublished. The presumption regarding radio transmission programs is 
based on empirical Office experience, factual information from surveys 
conducted in the Copyright Office and surveys of databases covering 
registered works. For example, a recent survey of the Performing Arts 
Section of the Examining Division in the Office revealed that all of 
the applications for registration of radio programs on hand during the 
two week period in question were for registration in unpublished form. 
The applications were for radio broadcasts of recent vintage, e.g., 
opera broadcasts and contemporary programming of lighter genres as well 
as radio broadcasts from the 1940s and 1950s. The Office also conducted 
a survey of a broader group of radio programs registered over a longer 
period of time from an independent database covering registered works. 
Most of these radio programs were registered as unpublished works as 
well. On the basis of these surveys and other experience, it is 
appropriate in the context of this regulation to adopt the presumption 
of nonpublication of radio programs at the time of transmission, even 
though the publication status of the works may change at some later 
time.
    A feature of the original regulation, which would be retained, is 
the cost-saving option that copyright owners may choose to register a 
copyright claim using the Library's recording as the deposit copy. The 
copyright owner need only submit, within 90 days of the Library's 
recording, a completed application for registration, and the 
appropriate fee, together with a notice to the Copyright Office that 
the Library's recording is to be used to satisfy the deposit 
requirement, to thereby save the cost of the deposit copy. In view of 
the significant number of programs the Library seeks to record, it will 
not be practical as a matter of course to provide specific advance 
notice to the copyright owner that the Library plans to record an 
unpublished radio program. Such action would constitute a major 
administrative burden for the Library. Should the copyright owner wish 
to register a claim using the Library's recording, the owner may obtain 
information about whether the Library has recorded a radio program by 
making a written request of the Chief, Motion Picture, Broadcasting and 
Recorded Sound Division at the Library of Congress.
    When the regulation on off-the-air videotaping was originally 
promulgated more than two decades ago, the Office observed that it had 
not exhausted the authority conferred by section 407(e), particularly 
noting that the regulation had intentionally omitted radio 
transmissions. 47 FR 5259 (Feb. 4, 1982). In recognition of the great 
change in the world of communications over the last twenty years and to 
specifically acknowledge today's Internet age environment, the Office 
is updating the regulation to meet the new world of cultural 
communications by including audio transmission programs within its 
reach as well as Internet and other audiovisual transmission programs. 
This action is in keeping with Congress's intent to grant the Library 
broad authority to record unpublished transmission programs. 17 U.S.C. 
407(e).

[[Page 47398]]

The legislative history of the 1976 Copyright Act recounts that

    The definition of ``transmit''--to communicate a performance or 
display ``by any device or process whereby images or sound[s] are 
received beyond the place from which they are sent''--is broad 
enough to include all conceivable forms and combinations of wired or 
wireless communications media, including but by no means limited to 
radio and television broadcasting as we know them. Each and every 
method by which the images or sounds comprising a performance or 
display are picked up and conveyed is a ``transmission'' * * *.

    H.R. Report No. 94-1476, at 64 (1976). Congress's recognition in 
1976 that transmission programs would not be confined to radio and 
television has been realized as the Internet has become a major medium 
for the transmission of programs, and the Library's collections will be 
enriched by including many programs now being transmitted on the 
Internet. By expanding the scope of works to include radio, 
Internet,\1\ cable, satellite and other audiovisual transmissions to 
the public, the Register now proposes to further exercise her statutory 
authority to enable the Library of Congress to collect and preserve 
broad-based contemporary cultural materials from all kinds of 
unpublished transmission programs that represent the nation's rich 
heritage. See also Section 113, Transitional and Supplementary 
Provisions of the Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 
2541 (1976). With respect to television transmission programs, however, 
this amendment leaves the provisions of the original regulation 
essentially unchanged.
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    \1\ Within the scope of this regulation, Internet recording by 
the Library of Congress refers to the recording of transmission 
programs that are publicly performed, i.e., ``streamed'' on the 
Internet. It does not refer to programs that are offered for 
download or otherwise available for reproduction, since such 
programs would likely be considered published.
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List of Subjects in 37 CFR Part 202

    Copyright, Registration.

Proposed Regulation

    In consideration of the foregoing, the Copyright Office proposes to 
amend part 202 of 37 CFR chapter II as follows:

PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT

    1. The authority citation for part 202 continues to read as 
follows:

    Authority: 17 U.S.C. 702, 407 and 408.

    2. Section 202.22 is amended as follows:
    a. by revising the section heading;
    b. by revising paragraph (a);
    c. by revising paragraph (b)(1);
    d. in paragraph (b)(2), by removing ``by Pub. L. 94-553'';
    e. by revising the heading of paragraph (c);
    f. by revising paragraph (c)(1);
    g. in paragraph (c)(2), by removing ``copied off-the-air'' and 
adding ``recorded'' in its place;
    h. in paragraph (c)(3), by removing ``copy off-the-air'' and adding 
``record'' in its place, by removing ``television'' before 
``transmission program'', and by removing ``copying'' and adding 
``recording'' in its place;
    i. by revising paragraph (c)(4);
    j. in paragraph (c)(5) introductory text, by removing ``off the air 
copying'' and adding ``recording'' in its place;
    k. in paragraph (c)(5)(iii), by removing ``with notice of 
copyright'';
    l. in paragraph (c)(6) introductory text, by removing ``off-the-
air'' and by adding ``or phonorecord'' after ``copy'';
    m. in paragraph (c)(7), by adding ``or phonorecord'' after 
``copy'';
    n. in paragraph (c)(8) introductory text, by adding ``television'' 
before ``transmission programs'', ``television'' before ``network 
stations'' and ``television'' before ``broadcasting station'';
    o. in the heading for paragraph (d), by removing ``television'';
    p. in paragraph (d)(1), by adding ``or phonorecord'' after 
``copy'';
    q. in paragraph (d)(3)(ii), by adding ``or phonorecord'' after 
``copy'' each place it appears;
    r. in paragraph (d)(3)(iv), by removing ``copies''' and adding ``of 
the copies or phonorecords'' after ``use'';
    s. in paragraph (d)(3)(v), by removing ``(a) and (c)'';
    t. in paragraph (d)(3)(vi), by adding ``, or, in the case of an 
audio transmission program, a compliance phonorecord,'' after ``copy'';
    u. in paragraph (d)(4), by adding ``or phonorecord'' after ``copy'' 
each place it appears;
    v. in paragraph (d)(5), by adding ``and phonorecords'' after 
``Copies'';
    w. in paragraph (d)(6)(iii), by removing ``shall be granted'' and 
adding ``should be granted'' in its place;
    x. in the heading of paragraph (e) and paragraph (e)(1), by adding 
``and phonorecords'' after ``copies'' each place it appears, and by 
adding ``or phonorecord'' after ``copy'';
    y. by revising paragraph (e)(2);
    z. in paragraph (f)(1), by adding ``and phonorecords'' after 
``Copies'';
    aa. in paragraph (f)(1)(ii), by adding ``or phonorecord'' after 
``copy'';
    bb. in paragraph (f)(2), by adding ``and phonorecords'' after 
``Copies'', and by adding ``or phonorecord'' after ``copy'' each place 
it appears; and
    cc. in paragraph (g)(1), by adding ``, or phonorecords'' after 
``copies'', and by removing ``television'' and by adding ``audio or 
audiovisual'' in its place.
    The additions and revisions to Sec.  202.22 read as follows:


Sec.  202.22  Acquisition and deposit of unpublished audio and 
audiovisual transmission programs.

    (a) General. This section prescribes rules pertaining to the 
acquisition of phonorecords and copies of unpublished audio and 
audiovisual transmission programs by the Library of Congress under 
section 407(e) of title 17 of the United States Code, as amended. It 
also prescribes rules pertaining to the use of such phonorecords and 
copies in the registration of claims to copyright, under section 
408(b).
    (b) * * *
    (1) The terms copies, fixed, phonorecords, publication, and 
transmission program and their variant forms, have the meanings given 
to them in section 101 of title 17. The term network station has the 
meaning given it in section 111(f) of title 17. For the purpose of this 
section, the term transmission includes transmission via the Internet, 
cable, broadcasting, and satellite systems, and via any other existing 
or future devices or processes for the communication of a performance 
or display whereby images or sounds are received beyond the place from 
which they are sent.
* * * * *
    (c) Recording of transmission programs. (1) Library of Congress 
employees, including Library of Congress contractors, acting under the 
general authority of the Librarian of Congress, may make a fixation of 
an unpublished audio or audiovisual transmission program directly from 
a transmission to the public in the United States, in accordance with 
subsections 407(e)(1) and (4) of title 17 of the United States Code. 
The choice of programs selected for fixation shall be based on the 
Library of Congress's acquisition policies in effect at the time of 
fixation. Specific notice of an intent to record a transmission program 
will ordinarily not be given. In general, the Library of Congress will 
seek to record a substantial portion of the television programming 
transmitted by noncommercial educational broadcast stations as defined 
in section 397 of title 47 of the United States Code, and will record 
selected programming transmitted by commercial television broadcast 
stations, both network and independent. The Library will also

[[Page 47399]]

record a selected portion of the radio programming transmitted by 
commercial and noncommercial broadcast stations. Additionally, the 
Library will record a selected portion of unpublished Internet, cable 
and satellite programming transmitted to the public in the United 
States.
* * * * * *
    (4) The Library of Congress is entitled under this paragraph (c) to 
presume that a radio program transmitted to the public in the United 
States has been fixed but not published at the time of transmission, 
and that a television program transmitted to the public in the United 
States by a noncommercial educational broadcast station as defined in 
section 397 of title 47 of the United States Code has been fixed but 
not published.
    (e) * * *
    (2) All copies and phonorecords acquired or made under this 
section, except copies and phonorecords of transmission programs 
consisting of a regularly scheduled newscast or on-the-spot coverage of 
news events, shall be subject to the following restrictions concerning 
copying and access: in the case of television or other audiovisual 
transmission programs, copying and access are governed by Library of 
Congress Regulation 818-17, Policies Governing the Use and Availability 
of Motion Pictures and Other Audiovisual Works in the Collections of 
the Library of Congress, or its successors; in the case of audio 
transmission programs, copying and access are governed by Library of 
Congress Regulation 818-18.1, Recorded Sound Listening and Duplication 
Services, or its successors. Transmission programs consisting of 
regularly scheduled newscasts or on-the-spot coverage of news events 
are subject to the provisions of the ``American Television and Radio 
Archives Act,'' 2 U.S.C. 170, and such regulations as the Librarian of 
Congress shall prescribe.
* * * * *

    Dated: August 2, 2004.
David O. Carson,
General Counsel.
[FR Doc. 04-17939 Filed 8-4-04; 8:45 am]
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