[Federal Register Volume 70, Number 49 (Tuesday, March 15, 2005)]
[Proposed Rules]
[Pages 12631-12632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5064]


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LIBRARY OF CONGRESS

COPYRIGHT OFFICE

37 CFR Part 270

[Docket No. RM 2005-2]


Reports of Use of Sound Recordings Under Statutory License

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Copyright Office of the Library of Congress is proposing 
amendments to the rules governing reports of use of sound recordings 
under the statutory license for preexisting subscription services.

DATES: Comments are due no later than April 14, 2005.

ADDRESSES: If hand delivered by a private party, an original and ten 
copies of any comment 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/CARP, 
U.S. Copyright Office, James Madison Memorial Building, Room LM-401, 
101 Independence Avenue, SE., Washington, DC 20559-6000. If hand 
delivered by a commercial courier, an original and ten copies of any 
comment must be delivered to the Congressional Courier Acceptance Site 
located at Second and D Streets, NE., Washington, DC, between 8:30 a.m. 
and 4 p.m. The envelope should be addressed as follows: Copyright 
Office General Counsel/CARP, Room LM-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 ten copies of any comment should be addressed to: 
Copyright Arbitration Royalty Panel (CARP) P.O. Box 70977, Southwest 
Station, Washington, DC 20024-0977. 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.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
William J. Roberts, Jr. Telephone: (202) 707-8380. Telefax: (202) 252-
3423.

SUPPLEMENTARY INFORMATION: Digital audio services provide copyrighted 
sound recordings of music for the listening enjoyment of the users of 
those services. In order to provide these sound recordings, however, a 
digital audio service must license the copyrights to each musical work, 
as well as the sound recording of the musical work. There are two 
statutory licenses in the Copyright Act that enable a digital audio 
service to transmit performances of copyrighted sound recordings: 
section 112 and section 114. 17 U.S.C. 112 & 114. Congress initially 
established these licenses in the Digital Performance Right in Sound 
Recordings Act of 1995, Pub. L. 104-39, for subscription digital audio 
services then in existence, and later amended sections 112 and 114 in 
the Digital Millennium Copyright Act of 1998, Pub. L. 105-304, to 
include other types of digital audio services. It is the former 
category of services (hereinafter referred to as ``preexisting 
subscription services'') to which this Notice of Proposed Rulemaking 
(``NPRM'') applies.
    On June 24, 1998, the Copyright Office published interim 
regulations establishing the requirements by which copyright owners 
receive reasonable notice of the use of their works from preexisting 
subscription services, and how reports of use shall be kept and made 
available to copyright owners. Originally codified at Sec.  Sec.  
201.35 through 201.37 of title 37 of the Code of Federal Regulations, 
these regulations have recently been moved to part 270 of the CFR, but 
have remained unchanged. On March 18, 2003, the preexisting 
subscription services-Music Choice, DMX Music Inc., and Muzak LLC-and 
representative organizations of copyright owners of sound recordings-
SoundExchange, Inc., the American Federation of Television and Radio 
Artists, and the American Federation of Musicians-filed a petition with 
the Copyright Office seeking to amend the regulations regarding reports 
of use (formerly Sec.  201.36, now Sec.  270.2) for preexisting 
subscription services. At that time, the Office was conducting a 
rulemaking proceeding to establish notice and recordkeeping 
requirements for digital audio services other than preexisting 
subscription services and declined to include the petition in that 
proceeding. See 69 FR 11515, 11517 n.9 (March 11, 2004). Instead, the 
Office determined to address the petition ``in a separate Federal 
Register document.'' Id. Today's NPRM fulfills that directive.
    Petitioners request what they describe as ``minor adjustments 
[that] will make the rules more useful to copyright owners and 
performers and less burdensome on users of copyrighted works.'' 
Petition at 1. The proposed changes can be generally described as 
follows. First, to provide copyright owners with a more complete report 
of the use of their works, petitioners request that preexisting 
subscription services report the copyright notice (i.e., the ``P 
line'') accompanying record albums or sound recordings, where it is 
available. Second, petitioners propose to extend the time allowed for 
filing reports of use to comply with current payment periods for 
preexisting subscription services. See 68 FR 39837 (July 3, 2003). And 
third, petitioners propose some technical amendments that, in their 
view, clarify that the requirements of Sec.  270.2 apply only to 
preexisting subscription services.
    The Office welcomes public comment to the proposed changes.

List of Subjects in Part 270

    Copyright, Sound Recordings.

Proposed Regulations

    In consideration of the foregoing, the Copyright Office proposes to 
amend part 270 of 37 CFR to read as follows:

PART 270-NOTICE AND RECORDKEEPING REQUIREMENTS FOR STATUTORY LICENSES

    1. The authority citation for part 270 continues to read as 
follows:

    Authority: 17 U.S.C. 702
    2. Section 270.2 is amended as follows:
    a. By revising paragraph (b)(2);
    b. By revising paragraph (b)(3);
    c. In paragraph (c), by adding ``or pursuant to a settlement 
agreement reached or statutory license adopted pursuant to section 
112(e)'' after ``17 U.S.C. 802(f)'' and by removing ``twentieth'' and 
adding ``forty-fifth'' in its place;
    d. In paragraph (d) introductory text, by removing ``20th'' and 
adding ``forty-fifth'' in its place; and
    e. By revising paragraph (e).

[[Page 12632]]

    The additions and revisions to Sec.  270.2 read as follows:

Sec.  270.2 Reports of use of sound recordings under statutory license 
for preexisting subscription services.

    * * * * *
    (b) * * *
    (2) A Report of Use of Sound Recordings Under Statutory License is 
the report of use required under this section to be provided by a 
Service transmitting sound recordings and making ephemeral phonorecords 
therewith under statutory licenses.
    (3) A Service is a preexisting subscription service, as defined in 
17 U.S.C. 114(j)(11).
    * * * * *
    (e) Content. A ``Report of Use of Sound Recordings under Statutory 
License'' shall be identified as such by prominent caption or heading, 
and shall include a preexisting subscription service's ``Intended 
Playlists'' for each channel and each day of the reported month. The 
``Intended Playlists'' shall include a consecutive listing of every 
recording scheduled to be transmitted, and shall contain the following 
information in the following order:
    (1) The name of the preexisting subscription service or entity;
    (2) The channel;
    (3) The sound recording title;
    (4) The featured recording artist, group, or orchestra;
    (5) The retail album title (or, in the case of compilation albums 
created for commercial purposes, the name of the retail album 
identified by the preexisting subscription service for purchase of the 
sound recording);
    (6) The marketing label of the commercially available album or 
other product on which the sound recording is found;
    (7) The catalog number;
    (8) The International Standard Recording Code (ISRC) embedded in 
the sound recording, where available and feasible;
    (9) Where available, the copyright owner information provided in 
the copyright notice on the retail album or other product (e.g., 
following the symbol (P), that is the letter P in a circle) or, in the 
case of compilation albums created for commercial purposes, in the 
copyright notice for the individual sound recording;
    (10) The date of transmission; and
    (11) The time of transmission.
    * * * * *

    Dated: March 8, 2005
Tanya M. Sandros,
Associate General Counsel.
[FR Doc. 05-5064 Filed 3-14-05; 8:45 am]
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