Federal Register / Vol. 69, No. 206 / Tuesday, October 26, 2004 / Rules and Regulations 62411

1Because of the administrative burden, the 

Library cannot undertake to send separate 

notifications to each transmitting organization 

whenever the Library has recorded a radio 

transmission program.

Dated: October 8, 2004. 

Peter J. Boynton, 

Captain, U.S. Coast Guard, Captain of the 

Port, Long Island Sound.

[FR Doc. 04–23962 Filed 10–25–04; 8:45 am] 

BILLING CODE 4910–15–P

LIBRARY OF CONGRESS

Copyright Office 

37 CFR Part 202

[Docket No. RM 2004–3A] 

Acquisition and Deposit of 

Unpublished Audio and Audiovisual 

Transmission Programs

AGENCY: Copyright Office, Library of 

Congress.

ACTION: Final rule.

SUMMARY: This final rule amends the 

regulations of the Copyright Office to 

extend the Library of Congress’

recording of unpublished transmission 

programs that have been fixed in a 

tangible medium of expression, which 

currently involves the recording of 

unpublished television programs, to 

include the recording of unpublished 

radio and other audio and audiovisual 

transmission programs.

EFFECTIVE DATE: November 26, 2004.

FOR FURTHER INFORMATION CONTACT:

David Carson, General Counsel, or 

Charlotte Douglass, Principal Legal 

Advisor, Office of the Copyright General 

Counsel, Copyright GC/I&R, PO Box 

70400, Southwest Station, Washington, 

DC 20024–0400. Telephone: (202) 707–

8380; Fax: (202) 707–8366.

SUPPLEMENTARY INFORMATION: On August 

5, 2004, the Copyright Office published 

a notice of proposed rulemaking seeking 

comment on a proposed amendment to 

its regulation codified at 37 CFR 202.22. 

Section 407(e)(1) of the Copyright Act 

provides that the Librarian of Congress 

may record unpublished transmission 

programs that have been fixed and 

transmitted to the public in accordance 

with regulations established by the 

Register of Copyrights. Up until now, 

those regulations have provided for the 

fixation only of unpublished television 

transmission programs. However, the 

Library now wishes to record other 

audio and audiovisual transmission 

programs as authorized by section 

407(e)(1), and the proposed amendment 

would provide for such recording. 

Specifically, the amendment would 

permit the Library of Congress to record 

fixed and unpublished audio and 

audiovisual transmission programs. As 

with the present rule for television, this 

regulation would enable the Library to 

record or demand unpublished radio 

transmission programs. Based on 

empirical and survey information, the 

Copyright Office’s presumption is that 

commercial and noncommercial radio 

transmission programs are unpublished. 

In consideration of the significance of 

these widely disseminated forms of 

public communication, the regulation 

would also extend the Library’s 

acquisition authority to cable, satellite 

and Internet transmission programs. 

Copyright owners may use the 

recordings made or demanded by the 

Library of Congress under this 

regulation to satisfy the deposit 

requirements for registration of 

copyright claims. 17 U.S.C. 408. 

In response to the notice of proposed 

rulemaking, the Copyright Office 

received two comments. The California 

Association of Library Trustees and 

Commissioners supported the Library’s 

proposed rule, stating that increasing 

the Library’s holdings in this way 

benefits the archive and research 

community. The National Association of 

Broadcasters (NAB) did not oppose the 

regulation, but asserted that the notice 

of proposed rulemaking provided no 

basis for presuming that all radio 

transmission programs have been fixed. 

NAB pointed out that the Library’s 

existing practice with respect to 

television programs is to provide notice 

to commercial television stations of its 

intention to record specific programs, or 

that it has recorded such programs, at 

which point the station may confirm or 

dispute the Library’s belief with respect 

to the fixed or unpublished status of the 

program. Moreover, NAB asserted that 

in order meaningfully to exercise the 

time limited option of using the 

Library’s recording as a deposit when 

registering claims to copyright, its 

members need to receive notice of the 

particular programs that the Library has 

recorded. 

In response to both of NAB’s 

concerns, the final rule announced 

herein includes a new provision 

requiring the Library to maintain on its 

Web site, at http://www.loc.gov/rr/

record, for audio recordings, or http://

www.loc.gov/rr/mopic, for audiovisual 

recordings, a list of the transmission 

programs that it has recorded under this 

authority. A radio, cable, satellite, or 

Internet transmission program that has 

been recorded by the Library shall be 

included on the list within fourteen 

days of the recording by the Library.1

Making this information publicly 

available on the Web site gives the 

copyright owner the opportunity to 

challenge the Library’s presumption that 

a particular transmission program had 

been fixed and unpublished, and it also 

gives the copyright owner notice that a 

recording has been made by the Library 

that the owner may use as a deposit in 

connection with registration of a 

copyright claim in the transmission 

program.

List of Subjects 

Copyright, Sound recordings.

Final Regulation

■ In consideration of the foregoing, the 

Copyright Office amends part 202 of 37 

CFR to read 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’’, 

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. by revising (c)(8) introductory text;

■ 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)’’;

62412 Federal Register / Vol. 69, No. 206 / Tuesday, October 26, 2004 / Rules and Regulations 

■ 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 

§ 202.22 read as follows:

§ 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 

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.

* * * * *

(8) The Library of Congress shall 

maintain a list of the radio, cable, 

Internet and satellite transmission 

programs that the Library has recorded 

on the Motion Picture, Broadcasting and 

Recorded Sound Division Web site at 

http://www.loc.gov/rr/record/ for audio 

transmission programs, or http://

www.loc.gov/rr/mopic/ for audiovisual 

transmission programs, and, in making 

fixations of such unpublished 

transmission programs, shall identify a 

program that the Library has recorded 

by including that transmission program 

on the list no later than fourteen days 

after such fixation has occurred. The 

Library of Congress in making fixations 

of unpublished television transmission 

programs transmitted by commercial 

broadcast stations shall not do so 

without notifying the transmitting 

organization or its agent that such 

activity is taking place. In the case of 

television network stations, the 

notification will be sent to the particular 

network. In the case of any other 

commercial television broadcasting 

station, the notification will be sent to 

the particular broadcast station that has 

transmitted, or will transmit, the 

program. Such notice shall, if possible, 

be given by the Library of Congress prior 

to the time of broadcast. In every case, 

the Library of Congress shall transmit 

such notice no later than fourteen days 

after such fixation has occurred. Such 

notice shall contain: 

(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-thespot 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 onthe-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: October 13, 2004. 

Marybeth Peters, 

Register of Copyrights. 

Approved by:

James H. Billington, 

Librarian of Congress.

[FR Doc. 04–23934 Filed 10–25–04; 8:45 am] 

BILLING CODE 1410–30–P