[Federal Register Volume 70, Number 25 (Tuesday, February 8, 2005)]
[Notices]
[Page 6736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2406]


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LIBRARY OF CONGRESS

Copyright Office

[Docket No. 2004-1 CARP DTRA4]


Digital Performance Right in Sound Recordings and Ephemeral 
Recordings

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of termination of proceeding and current rates.

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SUMMARY: The Copyright Office of the Library of Congress is announcing 
the termination of the proceeding to determine reasonable rates and 
terms for two compulsory licenses for the period beginning January 1, 
2005, and ending on December 31, 2006. One license allows public 
performances of sound recordings by means of eligible digital audio 
transmissions; the other permits the making of an ephemeral phonorecord 
of a sound recording in furtherance of making a permitted public 
performance of the sound recording. The rates and terms applicable to 
new subscription services, eligible nonsubscription services, and 
services that transmit performances to business establishments that 
were in effect on December 31, 2004, will remain in effect during 2005.

FOR FURTHER INFORMATION CONTACT: Tanya M. Sandros, Associate General 
Counsel, or Abioye E. Oyewole, CARP Specialist. Telephone: (202) 707-
8380. Telefax: (202) 252-3423.

SUPPLEMENTARY INFORMATION: In 1995, Congress enacted the Digital 
Performance Right in Sound Recordings Act of 1995 (``DPRA''), Public 
Law 104-39, which created an exclusive right for copyright owners of 
sound recordings, subject to certain limitations, to perform publicly 
sound recordings by means of certain digital audio transmissions. Among 
the limitations on the performance right was the creation of a new 
compulsory license for nonexempt, noninteractive digital subscription 
transmissions. 17 U.S.C. 114(d).
    The scope of this license was expanded in 1998 upon passage of the 
Digital Millennium Copyright Act of 1998 (``DMCA''), Public Law 105-
304, in order to allow for the public performance of a sound recording 
when made in accordance with the terms and rates of the statutory 
license, 17 U.S.C. 114(d), by a preexisting satellite digital audio 
radio service or as part of an eligible nonsubscription transmission. 
In addition to expanding the section 114 license, the DMCA also created 
a new statutory license for the making of an ``ephemeral recording'' of 
a sound recording by certain transmitting organizations. 17 U.S.C. 
112(e). The new statutory license allows entities that transmit 
performances of sound recordings to business establishments, pursuant 
to the limitations set forth in section 114(d)(1)(C)(iv), and those 
entities operating under the section 114 statutory license to make 
ephemeral recordings of a sound recording to facilitate those 
transmissions.
    The statutory scheme for establishing reasonable terms and rates is 
the same for both licenses. Terms and rates may be determined by 
voluntary agreement among the affected parties, or if necessary, 
through compulsory arbitration conducted pursuant to Chapter 8 of the 
Copyright Act. Rates and terms are set for a two-year period through 
this process, except when a different period is otherwise agreed upon 
by the parties as part of a negotiated agreement. See 17 U.S.C. 
112(e)(6) and 114(f)(2)(C)(i)(II). Accordingly, on January 6, 2004, the 
Copyright Office announced the voluntary negotiation period to set 
rates and terms for the license period beginning January 1, 2005, and 
ending on December 31, 2006. 69 FR 689 (January 6, 2004) and 69 FR 5196 
(February 3, 2004).
    However, on November 30, 2004, the Copyright Royalty and 
Distribution Reform Act of 2004, (the ``Act''), Public Law 108-419, 118 
Stat. 2341, was enacted. This Act, which becomes effective on May 31, 
2005, eliminates the Copyright Arbitration Royalty Panel (``CARP'') 
system and replaces it with three permanent Copyright Royalty Judges. 
In addition, the Act terminates the proceeding initiated in January 
2004 to set rates and terms under sections 114(f)(2) and 112(e) for the 
2005-2006 license period.
    The Act further provides that the rates and terms in effect under 
section 114(f)(2) or 112(e) of title 17, United States Code, on 
December 31, 2004, for new subscription services, eligible 
nonsubscription services, and services exempt under section 
114(d)(1)(C)(iv) of such title, and the rates and terms published in 
the Federal Register under the authority of the Small Webcaster 
Settlement Act of 2002 (17 U.S.C. 114 note; Public Law 107-321) 
(including the amendments made by that Act) for the years 2003 through 
2004, as well as any notice and recordkeeping provisions adopted 
pursuant thereto, shall remain in effect until the later of the first 
applicable date for successor terms and rates specified in section 
804(b)(2) or (3)(A) of title 17, United States Code (effective May 31, 
2005), or such later date as the parties may agree or the Copyright 
Royalty Judges may establish. In accordance with this provision, the 
rates and terms applicable to these services that were in effect on 
December 31, 2004, shall remain in effect at least for 2005.
    Until such rates and terms have been established under the new 
procedures, beginning January 1, 2005, eligible small and noncommercial 
webcasters may elect to be subject to the terms and rates published in 
the Small Webcaster Settlement Act of 2002, Public Law 107-321, by 
complying with the procedures governing the election process set forth 
in that agreement not later than the first date on which the webcaster 
would be obligated to make a royalty payment for such period. See 67 FR 
78510 (December 24, 2002).

    Dated: February 3, 2005
Tanya M. Sandros,
Associate General Counsel.
[FR Doc. 05-2406 Filed 2-7-05; 8:45 am]
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