[Federal Register Volume 69, Number 206 (Tuesday, October 26, 2004)]
[Rules and Regulations]
[Pages 62411-62412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-23934]


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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Acquisition and Deposit of Unpublished Audio and Audiovisual 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.

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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to extend the Library of Congress' recording of unpublished 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expression, which currently involves the recording of unpublished 
television programs, to include the recording of unpublished radio and 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may record unpublished transmission programs that have been fixed and 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provided for the fixation only of unpublished television transmission 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record fixed and unpublished audio and audiovisual transmission 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would enable the Library to record or demand unpublished radio 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radio transmission programs are unpublished.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.
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    \1\ Because 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.
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List of Subjects

    Copyright, Sound recordings.

Final Regulation

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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

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1. The authority citation for part 202 continues to read as follows:

    Authority: 17 U.S.C. 702, 407 and 408.

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2. Section 202.22 is amended as follows:
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a. by revising the section heading;
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b. by revising paragraph (a);
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c. by revising paragraph (b)(1);
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d. in paragraph (b)(2), by removing ``by Pub. L. 94-553'';
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e. by revising the heading of paragraph (c);
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f. by revising paragraph (c)(1);
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g. in paragraph (c)(2), by removing ``copied off-the-air'' and adding 
``recorded'' in its place;
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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;
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i. by revising paragraph (c)(4);
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j. in paragraph (c)(5) introductory text, by removing ``off-the-air 
copying'' and adding ``recording'' in its place;
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k. in paragraph (c)(5)(iii), by removing ``with notice of copyright'';
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l. in paragraph (c)(6) introductory text, by removing ``off-the-air'' 
and by adding ``or phonorecord'' after ''copy'';
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m. in paragraph (c)(7), by adding ``or phonorecord'' after ``copy'';
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n. by revising (c)(8) introductory text;
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o. in the heading for paragraph (d), by removing ``television'';
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p. in paragraph (d)(1), by adding ''or phonorecord'' after ``copy'';
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q. in paragraph (d)(3)(ii), by adding ``or phonorecord'' after ``copy'' 
each place it appears;
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r. in paragraph (d)(3)(iv), by removing ``copies''' and adding ``of the 
copies or phonorecords'' after ``use'';
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s. in paragraph (d)(3)(v), by removing ``(a) and (c)'';

[[Page 62412]]

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t. in paragraph (d)(3)(vi), by adding ``, or in the case of an audio 
transmission program, a compliance phonorecord,'' after ``copy'';
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u. in paragraph (d)(4), by adding ``or phonorecord'' after ``copy'' 
each place it appears;
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v. in paragraph (d)(5), by adding ``and phonorecords'' after 
``Copies'';
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w. in paragraph (d)(6)(iii), by removing ``shall be granted'' and 
adding ``should be granted'' in its place;
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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'';
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y. by revising paragraph (e)(2);
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z. in paragraph (f)(1), by adding ``and phonorecords'' after 
``Copies'';
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aa. in paragraph (f)(1)(ii), by adding ``or phonorecord'' after 
``copy'';
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bb. in paragraph (f)(2), by adding ``and phonorecords'' after 
``Copies'', and by adding ``or phonorecord'' after ``copy'' each place 
it appears; and
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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 Sec.  202.22 read as follows:


Sec.  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-the-spot 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 on-the-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