[Federal Register Volume 70, Number 31 (Wednesday, February 16, 2005)]
[Notices]
[Pages 7970-7971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2973]


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LIBRARY OF CONGRESS

Copyright Royalty Judges

[Docket No. 2005-1 CRJ DTRA]


Digital Performance Right in Sound Recordings and Ephemeral 
Recordings

AGENCY: Copyright Royalty Judges, Library of Congress.

ACTION: Notice announcing commencement of proceeding with request for 
Petitions to Participate.

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SUMMARY: The Interim Chief Copyright Royalty Judge of the Library of 
Congress is announcing the commencement of the proceeding to determine 
the reasonable rates and terms for two statutory licenses for the 
period beginning January 1, 2006, and ending on December 31, 2010. One 
license allows public performances of sound recordings by means of an 
eligible nonsubscription transmission and transmissions made by a new 
subscription service; 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 Interim Chief Copyright 
Royalty Judge is also announcing the date by which a party who wishes 
to participate in the rate adjustment proceeding must file its Petition 
to Participate and the accompanying $150 filing fee.

DATES: Petitions to Participate and the filing fee are due no later 
than March 18, 2005.

ADDRESSES: If hand delivered by a private party, an original and five 
copies of a Petition to Participate along with the $150 filing fee 
should be brought to Room LM-401 of the James Madison Memorial Building 
between 8:30 a.m. and 5 p.m. and the envelope should be addressed as 
follows: Copyright Office General Counsel/CRJ, U.S. Copyright Office, 
James Madison Memorial Building, Room LM-401, 101 Independence Avenue, 
SE., Washington, DC 20559-6000. If delivered by a commercial carrier, 
an original and five copies of a Petition to Participate along with the 
$150 filing fee must be delivered to the Congressional Courier 
Acceptance Site located at 2nd and D Street, NE., between 8:30 a.m. and 
4 p.m. The envelope should be addressed as follows: Copyright Office 
General Counsel/CRJ, Room 403, James Madison Memorial Building, 101 
Independence Avenue, SE., Washington, DC. If sent by mail (including 
overnight delivery using U.S. Postal Service Express Mail), an original 
and five copies of a Petition to Participate along with the $150 filing 
fee should be addressed to: Copyright Royalty Judges (CRJ)/CARP, P.O. 
Box 70977, Southwest Station, Washington, DC 20024-0977. Petitions to 
Participate and the $150 filing fee 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.

FOR FURTHER INFORMATION CONTACT: William J. Roberts, Jr., Senior 
Attorney, or Abioye E. Oyewole, CARP Specialist. Telephone: (202) 707-
8380. Telefax: (202) 252-3423.

SUPPLEMENTARY INFORMATION:

Background

    On November 30, 2004, the President signed into law the Copyright 
Royalty and Distribution Reform Act of 2004 (the ``Act''), Public Law 
108-419, 118 Stat. 2341. This Act, which becomes effective on May 31, 
2005, amends the Copyright Act, title 17 of the United States Code, by 
phasing out the Copyright Arbitration Royalty Panel (``CARP'') system 
and replacing it with three permanent Copyright Royalty Judges 
(``CRJs''). As such, the CRJs will conduct proceedings to adjust the 
royalty rates paid under certain statutory licenses and to determine 
the distribution of royalties collected under sections 111, 119, and 
chapter 10. See 17 U.S.C. 801 (effective May 31, 2005).\1\
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    \1\ Unless otherwise noted, all references to Chapter 8 of title 
17 of the United States Code become effective May 31, 2005.
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    The Act directs that ``as soon as practicable after the date of 
enactment of this Act,'' the CRJs or interim CRJs shall publish a 
notice initiating ``a proceeding to establish or adjust rates and terms 
for the statutory licenses under section 114(f)(2) and 112(e) . . . for 
new subscription services and eligible nonsubscription services for the 
period commencing on January 1, 2006.'' \2\ Section 6(b)(4) of the 
Copyright Royalty and Distribution Reform Act of 2004, Public Law 108-
419. This notice initiates the rate adjustment proceeding.
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    \2\ In 2004, a proceeding to adjust the rates and terms for 
these services for the license period 2005-2006 was initiated by the 
Copyright Office under the CARP system. See 69 FR 689 (January 6, 
2004) and 69 FR 5196 (February 3, 2004). However, the Act terminated 
this proceeding and directed that the rates and terms in effect on 
December 31, 2004, shall remain in effect at least for 2005. Section 
6(b)(3) of the Copyright Royalty and Distribution Reform Act of 
2004, Public Law 108-419; see also 70 FR 6736 (February 8, 2005).
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Petitions To Participate

    Any party who wishes to participate in the proceeding to adjust the 
rates and terms for the digital public performance of sound recordings 
by means of an eligible nonsubscription transmission \3\ or a 
transmission made by a new subscription service \4\ under section

[[Page 7971]]

114(f)(2) and for the making of ephemeral copies in furtherance of 
these digital public performances under section 112(e) must submit to 
the CRJs a Petition to Participate by no later than March 18, 2005. 17 
U.S.C. 803(b)(1)(B). The Petition must describe the party's interest in 
the proceeding and be accompanied by a $150 filing fee. Parties with 
similar interests may join in the filing of a single Petition, 
accompanied by a single fee. Id. Cash will not be accepted; therefore, 
parties must pay the filing fee with a check or money order made 
payable to ``Copyright Royalty Judge Program.'' If a check received in 
payment of the filing fee is returned for lack of sufficient funds, the 
corresponding Petition to Participate will be dismissed.
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    \3\ An ``eligible nonsubscription transmission'' is a 
noninteractive digital audio transmission which, as the name 
implies, does not require a subscription for receiving the 
transmission. The transmission must also be made as part of a 
service that provides audio programming consisting in whole or in 
part of performances of sound recordings the purpose of which is to 
provide audio or entertainment programming, but not to sell, 
advertise, or promote particular goods or services. See 17 U.S.C. 
114(j)(6).
    \4\ 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 or a 
preexisting satellite digital audio radio service.'' 17 U.S.C. 
114(j)(8).
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    Once Petitions to Participate are filed, the CRJs will provide to 
the parties a list of participants and will initiate a three-month 
voluntary negotiation period to afford the parties an opportunity to 
reach a settlement. 17 U.S.C. 803(b)(3). A party who fails to submit a 
timely Petition to Participate will be precluded from objecting to a 
settlement reached during the voluntary negotiation period, even if the 
CRJs ultimately accept such late-filed Petition. 17 U.S.C. 
803(b)(1)(A)(ii).

Structure of Proceeding

    If no settlement is reached during the voluntary negotiation 
period, the CRJs will specify a date falling within four to five months 
after the closure of the voluntary negotiation period for the filing of 
written direct statements. 17 U.S.C. 803(b)(6)(C)(i). Such statements 
will be comprised of witness statements, testimony and exhibits to be 
presented in the proceeding as well as ``such other information that is 
necessary to establish terms and rates.'' 17 U.S.C. 
803(b)(6)(C)(ii)(II).
    Once written direct statements are filed, the CRJs will meet with 
the parties to schedule the 60-day discovery period. 17 U.S.C. 
803(b)(6)(C)(ii)(I), (iv). After closure of the discovery period, the 
CRJs will schedule a settlement conference among the parties to take 
place outside the presence of the CRJs ``to facilitate the presentation 
of offers of settlement among'' the parties. 17 U.S.C. 803(b)(6)(C)(x). 
The 21-day settlement conference will follow the discovery period. Id. 
If no full settlement of all disputes result, the CRJs will conduct 
hearings and will issue their determination ``not later than 11 months 
after the conclusion of the 21-day settlement conference period.'' 17 
U.S.C. 803(c)(1).

Applicable Regulations

    The CRJs must apply the regulations governing the CARP system, to 
the extent that they are not inconsistent with the Act, until such time 
as they adopt regulations under section 803(b)(6)(A). 17 U.S.C. 
803(b)(6)(B). Therefore, in accordance with 37 CFR 251.44(a), parties 
must submit an original and five copies of their Petitions to 
Participate.

    Dated: February 10, 2005.
Bruce G. Forrest,
Interim Chief Copyright Royalty Judge.
[FR Doc. 05-2973 Filed 2-15-05; 8:45 am]
BILLING CODE 1410-72-P