[Federal Register Volume 73, Number 161 (Tuesday, August 19, 2008)]
[Notices]
[Pages 48396-48399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19198]


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LIBRARY OF CONGRESS

Copyright Office

[Docket No. RF 2008-1]


Division of Authority Between the Copyright Royalty Judges and 
the Register of Copyrights under the Section 115 Statutory License

AGENCY: Copyright Office, Library of Congress.

ACTION: Final Order.

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SUMMARY: The Copyright Royalty Judges, acting pursuant to statute, 
referred material questions of substantive law to the Register of 
Copyrights concerning the division of authority between the Judges and 
the Register of Copyrights under the section 115 statutory license. 
Specifically, the Copyright Royalty Board requested a decision by the 
Register of Copyrights regarding whether the Judges' authority to adopt 
terms under the section 115 license is solely limited to late payment, 
notice of use and recordkeeping regulations; and if the answer is no, 
what other categories or types of terms may the Judges prescribe by 
regulation. The Register of Copyrights responded in a timely fashion by 
delivering a Memorandum Opinion to the Copyright Royalty Board on 
August 8, 2008.

DATES: Effective Date: August 8, 2008.

FOR FURTHER INFORMATION CONTACT: Stephen Ruwe, Attorney Advisor, and 
Tanya M. Sandros, General Counsel, Copyright GC/I&R, P.O. Box 70400, 
Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-
8366.

SUPPLEMENTARY INFORMATION: In the Copyright Royalty and Distribution 
Reform Act of 2004, Congress amended Title 17 to replace the copyright 
arbitration royalty panel with the Copyright Royalty Judges (``CRJs''). 
One of the functions of the CRJs is to make determinations and 
adjustments of reasonable terms and rates of royalty payments as 
provided in sections 112(e), 114, 115, 116, 118, 119 and 1004 of the 
Copyright Act. The CRJs have the authority to request from the Register 
of Copyrights (``Register'') an interpretation of any material question 
of substantive law that relates to the construction of provisions of 
Title 17 and arises out of the course of the proceeding before the 
CRJs. See 17 U.S.C. 802(f)(1)(A)(ii).
    On July 25, 2008, the CRJs delivered to the Register: (1) an Order 
referring material questions of substantive law; and (2) the Briefs 
filed with the CRJs by the Recording Industry Association of America; 
the Digital Media Association; and National Music Publishers' 
Association, Inc., the Songwriters Guild of America, and the Nashville 
Songwriters Association International. The CRJs' delivery of the 
request for an interpretation triggered the 14-day response period 
prescribed in Section 802 of the Copyright Act. This statutory 
provision states that the Register ``shall deliver to the Copyright 
Royalty Judges a written response within 14 days after the receipt of 
all briefs and comments from the participants.'' See 17 U.S.C. 
802(f)(1)(A)(ii). The statute also requires that ``[t]he Copyright 
Royalty Judges shall apply the legal interpretation embodied in the 
response of the Register of Copyrights if it is timely delivered, and 
[that] the response shall be included in the record that accompanies 
the final determination.'' Id. On August 8, 2008, the Register 
responded in a Memorandum Opinion to the CRJs that addressed the 
material questions of law. To provide the public with notice of the 
decision rendered by the Register, the Memorandum Opinion is reproduced 
in its entirety, below.

    Dated: August 12, 2008
David O. Carson,
Associate Register for Policy and International Affairs

     Before the
     U.S. Copyright Office
     Library of Congress
     Washington, D.C. 20559

In the Matter of

Mechanical and Digital Phonorecord
Delivery Rate Adjustment Proceeding

    Docket No. RF 2008-1
----------------------------------

MEMORANDUM OPINION
ON MATERIAL QUESTIONS OF SUBSTANTIVE LAW
I. Procedural Background
    On July 25, 2008, under the terms of 17 U.S.C. Sec.  
802(f)(1)(A)(ii), the Copyright Royalty Judges (``CRJs'') referred to 
the Register of Copyrights material questions of substantive law which 
have arisen in this proceeding. The Copyright Royalty Judges included 
briefs from the parties to the proceeding that had been submitted in 
February, 2008 relating to the authority of the CRJs to set terms 
governing the section 115 compulsory license.
    After recounting the relevant statutory provisions of section 115 
and Chapter 8 of Title 17, the CRJs posed the following questions:
     Is the Judges' authority to adopt terms under the section 115 
license solely limited to late payment, notice of use and 
recordkeeping regulations? If the answer is no, what other 
categories or types of terms may the Judges' prescribe by 
regulation?
In addition, a footnote to the referral indicates that the CRJs are 
particularly interested in knowing whether it is the CRJs or the 
Register that have authority to prescribe regulations governing 
categories or types of terms where those categories or types of 
terms are not specifically identified or delineated in the statute.
    As required by 17 U.S.C. Sec.  802(f)(1)(A)(ii), the Register 
hereby responds to the CRJs.
II. Statutory Authority in Section 115 and Chapter 8 of Title 17.
    Prior to 1995, the copyright law empowered the Copyright Royalty 
Tribunal and, subsequently, the Copyright Arbitration Royalty Panels 
(``CARPs'') and the Librarian of Congress, to set only the rates 
applicable to the section 115 license. This authority was modified in 
1995 by the Digital Performance Right in Sound Recording Act of 1995 in 
which Congress added provisions to section 115 for ``digital 
phonorecord deliveries.'' The CARPs became authorized to set 
``reasonable terms and rates of royalty payments'' for digital 
phonorecord deliveries (``DPDs''), and these rates and terms were 
subject to modification by the Librarian on recommendation by the 
Register of Copyrights. The same legislation authorized the Librarian 
to ``establish requirements by which copyright owners may receive 
reasonable notice of

[[Page 48397]]

the use of their works..., and under which records of such use shall be 
kept and made available by persons making digital phonorecord 
deliveries.'' 17 U.S.C. Sec.  115(c)(3)(D) (1996). With respect to 
physical phonorecords, the CARPs' authority was limited to setting 
rates; there was no statutory authorization to set ``terms.'' See 17 
U.S.C. Sec.  801(b)(1) (1996). However, the Register of Copyrights had 
the authority to issue regulations concerning payment. Section 
115(c)(5) provided (and continues to provide), in pertinent part:
     Each monthly payment shall be made under oath and shall comply 
with requirements that the Register of Copyrights shall prescribe by 
regulation. The Register shall also prescribe regulations under 
which detailed cumulative annual statements of account, certified by 
a certified public accountant, shall be filed for every compulsory 
license under this section. The regulations covering both the 
monthly and the annual statements of account shall prescribe the 
form, content, and manner of certification with respect to the 
number of records made and the number of records distributed.
    This provision applies to both digital phonorecord deliveries and 
physical phonorecords.
    Since 1978, section 115 has also provided that persons wishing to 
use the section 115 compulsory license must serve a Notice of Intention 
to Obtain Compulsory License on the copyright owner, and that the 
``notice shall comply, in form, content, and manner of service, with 
requirements that the Register of Copyrights shall prescribe by 
regulation.'' 17 U.S.C. Sec.  115(b)(1).
    In 2004, Congress passed the Copyright Royalty and Distribution 
Reform Act (``CRDRA''). This legislation created the CRJs and empowered 
them to set ``terms and rates of royalty payments'' under section 115. 
See 17 U.S.C. Sec.  801(b)(1). It also amended section 115 to provide 
that the CRJs had authority to set ``reasonable rates and terms of 
royalty payments'' for use of works under the license as well as 
``requirements by which records of such use shall be kept and made 
available.'' 17 U.S.C. Sec.  115(c)(3)(D). However, the statutory 
provisions authorizing the Register to regulate notice of intention to 
obtain the section 115 license and requirements regarding monthly 
payment and monthly and annual statements of account remained in place.
III. Summary of Parties' Arguments
    The brief of the Digital Media Association (``DiMA'') in response 
to the CRJs' inquiry on its authority to set certain terms asserts that 
to the extent that the authority of the Register and the CRJs overlap, 
their jurisdiction is concurrent. Given this concurrent jurisdiction, 
DiMA maintains that both the Register and the CRJs may administer the 
license in a way that gives effect to the statute and avoids 
inconsistency. In keeping with this assertion, DiMA argues that the 
CRJs are authorized to identify the revenue against which the license 
rate should be applied, define the work, and set forth the scope of the 
activities covered by the license.
    The brief of the National Music Publishers' Association, the 
Songwriters Guild of America, and the Nashville Songwriters Association 
International (collectively, ``NMPA'') in response to the CRJs' inquiry 
on its authority to set certain terms asserts that CRJs have broad 
authority to determine rates and terms for the section 115 license. 
Further, it notes that the CRJs have express power to establish terms 
with respect to late fees and that they may specify notice and 
recordkeeping requirements that apply in lieu of existing regulations. 
In NMPA`s determination, the CRJs have the authority to issue fees for 
payments that are either late or are the result of a pass-through 
arrangement. NMPA argues that the CRJs are empowered to require 
licensees to issue reports indicating the specific configuration used, 
and in the case of pass-through licenses, identify the retailer through 
which delivery occurred. NMPA then contends that the CRJs are able to 
clarify whether the license fee is to be calculated on manufacture or 
distribution. It also asserts that the Register is explicitly granted 
authority over signing and certification of statements of account and 
that therefore the CRJs are not able to modify existing regulations in 
these areas, which are not properly considered recordkeeping.
    The brief of the Recording Industry of America (``RIAA'') in 
response to the CRJs' inquiry on its authority to set certain terms 
asserts that Congress split the administration of the section 115 
license between the CRJs and the Register of Copyrights. In its 
determination, the CRJs enjoy broad authority to set rates as well as a 
more limited authority to set terms of royalty payments. Additionally, 
RIAA maintains that the CRJs are empowered to set rules regarding 
notice to copyright owners of the use of their works and recordkeeping 
of such use. However, RIAA argues that the Copyright Office has a broad 
authority to establish detailed provisions that govern the operation of 
the license. In RIAA`s view, section 803(c)(3) resolved any tension 
between these competing authorities by resolving that the CRJs' final 
determination in the areas of notice and recordkeeping may supplant 
applicable regulations by the Register. Under this statutory 
interpretation, RIAA argues that the CRJs are unable to issue payment 
terms such as pass-through fees or attorney`s fees that conflict with 
existing payment regulations. RIAA also posits that the CRJs are unable 
to alter the regulations regarding reserves or notices of intention 
that have been issued by the Register. On the other hand, RIAA 
maintains that the CRJs are able to clarify that the section 115 
license extends to all reproductions necessary to engage in activities 
covered by the license. It asserts that the CRJs are able to modify the 
current provisions regarding when DPDs shall be treated as distributed, 
as well as those addressing audit and signature of signature of 
statements of account.
IV. Register`s Determination
    Congress intentionally split the administration of section 115 
between the CRJs and the Register of Copyrights. The result of this 
division of authority is that the CRJs may issue regulations that 
supplant currently applicable regulations, including those heretofore 
issued by the Librarian of Congress, solely in the areas of notice and 
recordkeeping. 17 U.S.C. Sec.  803(c)(3). However, the scope of the 
CRJs' authority in the areas of notice and recordkeeping for the 
section 115 license must be construed in light of Congress's more 
specific delegation of responsibility to the Register of Copyrights, 
which includes the authority to issue regulations regarding notice of 
intention to obtain the section 115 license as well as those regarding 
monthly payment and monthly and annual statements of account. 17 U.S.C. 
Sec.  Sec.  115(b)(1) and 115(c)(5). Moreover, accepted principles of 
statutory construction dictate that the CRJs' authority to set 
``terms'' must be construed in light of the more specific delegations 
of authority to the Register. See Simpson v. United States, 435 U.S. 6, 
15 (1978) (``Precedence [is given] to the terms of the more specific 
statute where a general statute and a specific statute speak to the 
same concern, even if the general provision was enacted later.'').
    In the CRDRA, Congress amended section 115(c)(3)(D) to authorize 
the CRJs to ``establish requirements by which copyright owners may 
receive reasonable notice of the use of their works under this section, 
and under

[[Page 48398]]

which records of such use shall be kept and made available by persons 
making digital phonorecord deliveries.'' Previously this power had been 
held by the Librarian of Congress, who issued such recommendations on 
the recommendation of the Register of Copyrights.. The CRDRA also added 
a new section 803(c)(3), which allowed the CRJs to ``specify notice and 
recordkeeping requirements of users of the copyrights at issue that 
apply in lieu of those that would otherwise apply under regulations.'' 
On its face it may appear as if the CRJs are empowered to supplant all 
current regulations in the area of notice and recordkeeping. However, 
the CRJs' authority to issue regulations in the areas of notice and 
recordkeeping must be construed in light of the specific grants of 
responsibility over the section 115 license to the Register of 
Copyrights. Simpson v. United States, 435 U.S. at 15.
    With regard to the CRJs' authority to issue requirements by which 
copyright owners may receive notice of the use of their works under 17 
U.S.C. Sec.  115(c)(3)(D), the Register first notes that the authority 
granted to the CRJs is limited to notice of use that has already taken 
place under the license. Notice of a use that has already taken place 
under the license is to be distinguished from notice of intention to 
obtain the section 115 license, which must be served on copyright 
owners prior to actual use under the license. Regulations governing 
notice of intention to obtain the section 115 license remain within the 
Register`s authority. The CRJs' authority over notice and recordkeeping 
does not include the ability to supplant the Register`s regulations 
governing notice of intention to obtain the section 115 license.
    Notice of use requirements are also limited by the Register`s 
specific grant of authority to issue regulations regarding statements 
of account. These regulations set forth information that is required to 
be served on the copyright owner in statements of account. While the 
level of detail, which includes requirements regarding oath, signature, 
and indication of each phonorecord configuration involved, is quite 
extensive, the Register understands that it may be conceivable that the 
CRJs may determine that licensees should be required to provide some 
information related to notice of use that is not addressed in either 
the notice of intention to obtain the section 115 license or the 
statements of account. If the CRJs are able to identify such 
information that is not addressed in either the notice of intention to 
obtain the section 115 license or the statements of account, then the 
CRJs may require that a licensee include that type of information in a 
notice of use (but not in the statement of account) to be served on the 
copyright owner. Alternatively, a recommendation by the CRJs to the 
Register to amend the regulations governing statements of account to 
include additional information presumably would meet with a favorable 
response.
    The CRJs' authority to issue requirements for recordkeeping is 
similarly limited by specific grants of authority to the Register. As 
previously indicated, the Register has set forth detailed requirements 
addressing the type of information, including phonorecord 
configuration, that is to be served on the copyright owner in the 
statements of account. Authority to issue regulations regarding these 
statements of account is the exclusive domain of the Register. Of 
course, if the CRJs set rates for new types of configurations, the 
Register can amend the regulations governing statements of account 
accordingly.
    In addition to the authority to issue regulations in the areas of 
notice and recordkeeping, the CRJs enjoy authority to determine 
reasonable ``rates and terms'' of the license. The power to issue 
``terms'' of the license was established in the DPRSA and the scope of 
this authority is addressed in the legislative history of that Act. The 
legislative history indicates that ``terms'' means such details as 
``how payments are made, when and other accounting matters,'' as well 
as ``related details.'' S. Rep. No. 104-128, at 40 (1995). As with the 
CRJs' authority over the areas of notice and recordkeeping, the 
authority to issue ``terms'' is limited by specific statutory grants of 
authority to the Register. If and to the extent that an express 
statutory grant of authority to the Register conflicts with an 
interpretation of language in the legislative history relating to the 
CRJs' power to set terms on how payments are made and other accounting 
matters, the statutory text controls and the Register`s express 
authority is paramount. However, to the extent that the Register`s 
authority does not extend to particular matters relating to terms of 
payment and related details which the CRJs determine should be 
addressed, the CRJs have the authority to supplement the Register`s 
regulations in this area. The legislative history of the DPSRA 
indicates that the CRJs' authority to determine ``terms'' includes 
additional terms ``necessary to effectively implement the statutory 
license.'' Id. at 30. Consistent with the legislative history, the 
Librarian of Congress, in a previous determination regarding the scope 
of ``terms'' in the course of a 1998 proceeding addressing the 114 
license, concluded that the authority to set reasonable terms extends 
``only so far as those terms insured the smooth administration of the 
license.'' Determination of Reasonable Rates and Terms for the Digital 
Performance of Sound Recordings, 63 FR 25394, 25411 (May 8, 1998). See 
also Recording Industry Association of America v. Librarian of 
Congress, 176 F.3d 528, 531 (D.C. Cir. 1999) (Librarian of Congress's 
authority to set ``terms'' for the section 114 statutory license 
includes authority to set terms relating to allocation of royalties, to 
audits and to deductions from royalties, but such determination must be 
based on record evidence).
    While the Register is not able to exhaustively address all of the 
types of terms that insure the ``smooth administration of the license'' 
or are ``necessary to effectively implement the statutory license,'' 
the Register does conclude that the CRJs do have the authority to issue 
requirements regarding audit of statements of account and records that 
are required to be kept. See RIAA v. Librarian of Congress, 176 F.3d at 
531. However, the Register concludes that a provision entitling 
copyright owners to recover attorney`s fees expended to collect past 
due royalties is not among the types of ``terms'' that insure the 
``smooth administration of the license'' or are ``necessary to 
effectively implement the statutory license.'' Moreover, the statutory 
method for enforcement of the section 115 license is found in section 
115(c)(6), which provides that the owner may issue a notice of default, 
which unless remedied within 30 days terminates the license and 
provides for infringement action. Section 505 governs awards of 
attorney`s fees in infringement actions, and it is not within the CRJs' 
scope of authority to provide for awards of attorney`s fees other than 
as provided in section 505. The statutory method for enforcement found 
in section 115(c)(6) appears to foreclose other legal avenues by which 
a copyright owner may seek remedy for past due royalties and late fees. 
However, even if other remedies are available to recover past due 
royalties, the well established ``American Rule'' that attorney`s fees 
are available only when explicitly established by statute or through 
negotiated contract would foreclose any conclusion that the CRJs have 
the authority to impose an attorney`s fee regime on compulsory

[[Page 48399]]

licensees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc`y, 421 U.S. 
240, 257 (U.S. 1975) (absent statute or enforceable contract, litigants 
pay their own attorneys' fees). As section 115 does not contain an 
explicit provision for attorney`s fees, the CRJs are unable to provide 
for awards of attorney`s fees in actions to collect past due royalties.
    The CRJs do not have the authority to issue rules setting forth the 
scope of activities covered by the license. However, the CRJs certainly 
have the authority to set rates for different types of DPDs. In so 
doing, they may have to make determinations to identify particular 
types of DPDs. Such determinations may implicate the question of what 
activity falls within the scope of the license. In instances where 
particular rates are being requested for the creation of particular 
types of DPDs and there is some question whether these DPDs fall within 
the scope of the license, those questions must be resolved in the 
proceeding. When such a question has not been determined before, it is 
a novel question of law which should be referred to the Register under 
section 802(f)(1)(B). In any event, any such determination by the CRJs 
will be subject to review for legal error by the Register under section 
802(f)(1)(D).
    NMPA has proposed that the CRJs determine that the license fee is 
to be calculated on the date of distribution, not the date of 
manufacture. The CRJs' authority to set rates and terms does appear to 
be sufficiently broad to include the authority to determine the date on 
which the mechanical license fee is to be calculated. However, we 
caution that the legislative history of section 115 suggests that the 
applicable rate should be the date the phonorecord is made. When the 
House Judiciary Committee considered the language that was to become 
section 115 of the 1976 Copyright Act in 1966 and 1967, it stated that 
``the committee believes that, unless a negotiated agreement provides 
otherwise, the liability for royalties should be fixed at the time 
phonorecords are made under a compulsory license.'' Second 
Supplementary Register`s Report on the General Revision of the U.S. 
Copyright Law (1975) at 251. Moreover, it would most likely be beyond 
the power of the CRJs to provide that with respect to phonorecords that 
have already (i.e., prior to the effective date of the current rate 
determination) been manufactured, the royalty fee is to be calculated 
as of the date of distribution rather than the date of manufacture. 
Such retroactive rulemaking is in most cases beyond the power of an 
agency. See Bowen v. Georgetown University Hospital, 488 U. S. 204 
(1988).
    Finally, the CRJs request clarity regarding their authority over 
terms of late payments. Under section 803(c)(7), the CRJs have a clear 
authority to include terms with respect to late payments. However, the 
Register notes that this authority applies solely to payments that are 
in fact past due.

    August 8, 2008
David O. Carson
Acting Register of Copyrights
[FR Doc. E8-19198 Filed 8-18-08; 8:45 am]
BILLING CODE 1410-30-S