33266 Federal Register / Vol. 65, No. 100 / Tuesday, May 23, 2000 / Proposed Rules

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2000–4]

Public Performance of Sound

Recordings: Definition of a Service

AGENCY: Copyright Office, Library of

Congress.

ACTION: Notice of inquiry.

SUMMARY: The Copyright Office is

requesting comments on whether to

grant a petition for rulemaking filed

with the Copyright Office by the Digital

Media Association. The petition

requests an amendment to the rule that

defines the term ‘‘Service’’ for purposes

of the statutory license governing the

public performance of sound recordings

by means of digital audio transmissions.

The requested amendment would

expand the current definition of the

term ‘‘Service’’ to state that a service is

not interactive simply because it offers

the consumer some degree of influence

over the programming offered by the

webcaster.

DATES: Written comments are due June

22, 2000. Reply comments are due July

7, 2000.

ADDRESSES: If sent by mail, an original

and ten copies of comments and reply

comments should be addressed to:

Copyright Arbitration Royalty Panel

(CARP), P.O. Box 70977, Southwest

Station, Washington, DC 20024. If hand

delivered, they should be brought to:

Office of the General Counsel, James

Madison Memorial Building, Room LM–

403, First and Independence Avenue

SE., Washington, DC 20559–6000.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel, or

Tanya M. Sandros, Senior Attorney,

Copyright Arbitration Royalty Panel,

P.O. Box 70977, Southwest Station,

Washington, DC 20024; Telephone:

(202) 707–8380. Telefax: (202) 252–

3423.

SUPPLEMENTARY INFORMATION:

Background

In 1995, Congress enacted the Digital

Performance Right in Sound Recordings

Act of 1995 (‘‘DPRA’’), Public Law 104–

39, which created an exclusive right for

copyright owners of sound recordings,

subject to certain limitations, ‘‘to

perform the copyrighted work publicly

by means of a digital audio

transmission.’’ 17 U.S.C. 106(6). Among

the limitations on the performance was

the creation of a licensing scheme for

interactive digital audio services and a

compulsory license for nonexempt,

noninteractive, digital subscription

transmissions, 17 U.S.C. 114(d)(2), (3)

and (f) (1995). In addition, Congress

exempted certain transmissions and

retransmissions from the newly created

performance right, 17 U.S.C. 114(d)(1)

(1995).

In enacting the DPRA, Congress had

two purposes: (1) To ensure that

recording artists and record companies

will be protected as new technologies

affect the way in which their creative

works are used; and (2) to create fair and

efficient licensing mechanisms that

address the complex issues facing

copyright owners and copyright users as

a result of the rapid growth of digital

audio services. H.R. Rep. No. 105–796,

at 79–80 (1998). It soon became

apparent, however, that with the rapid

proliferation of the use of the Internet as

a transmission medium and the

confusion surrounding the question of

how the DPRA applied to some

nonsubscription digital audio services,

further legislation was needed to

achieve these goals.

These changes were part of the Digital

Millennium Copyright Act of 1998

(‘‘DMCA’’), Public Law 105–304, which,

among other things, amended sections

112 and 114 of the Copyright Act to

clarify that ‘‘the digital sound recording

performance right applies to

nonsubscription digital audio services

such as webcasting’’ and to address the

licensing issues raised by the

webcasters. Staff of the House of

Representatives Comm. on the Judiciary,

105th Cong., 2d Sess., Section-bySection Analysis of H.R. 2281 as Passed

by the United States House of

Representatives on August 4, 1998 at 50

(Comm. Print, Serial No. 6, 1998).

Specifically, Congress amended section

114 by creating a new statutory license

for nonexempt eligible nonsubscription

transmissions (e.g., webcasting) and

nonexempt transmissions by preexisting

satellite digital audio radio services.

17 U.S.C. 114(f) (1998).

For purposes of the DMCA, an

‘‘eligible nonsubscription transmission’’

is defined as:

a non-interactive nonsubscription digital

audio transmission not exempt under

subsection (d)(1) that is made as part of a

service that provides audio programming

consisting, in whole or in part, of

performances of sound recordings, including

retransmissions of broadcast transmissions, if

the primary purpose of the service is to

provide to the public such audio or other

entertainment programming, and the primary

purpose of the service is not to sell, advertise,

or promote particular products or services

other than sound recordings, live concerts, or

other music-related events.

17 U.S.C. 114(j)(6) (1998).

A key element of the definition is the

requirement that the transmission must

be ‘‘non-interactive.’’ Unless a service

meets this criterion, it is ineligible for

the statutory license and, therefore,

must negotiate a voluntary agreement

with the copyright owner(s) of the

sound recordings before performing the

works by means of digital audio

transmissions.

17 U.S.C. 114(d)(3) (1998).

This distinction between interactive

and non-interactive has always been

critical to determining the rights of a

copyright user under section 114, since

Congress believed ‘‘interactive services

[were] most likely to have a significant

impact on traditional record sales, and

therefore pose[d] the greatest threat to

the livelihoods of those whose income

depends upon revenues derived from

traditional record sales.’’ S. Rep. No.

104–128, at 16 (1995). For this reason,

interactive services are excluded from

the limitations placed upon the new

performance right and, consequently,

must conduct arms-length negotiations

with the copyright owners of the sound

recordings before making a digital

transmission of the works.

Congress first defined an ‘‘interactive

service’’ in the DPRA as a service that:

enables a member of the public to receive, on

request, a transmission of a particular sound

recording chosen by or on behalf of the

recipient. The ability of individuals to

request that particular sound recordings be

performed for reception by the public at large

does not make a service interactive. If an

entity offers both interactive and noninteractive services (either concurrently or at

different times), the non-interactive

component shall not be treated as part of an

interactive service.

17 U.S.C. 114(j)(4) (1995).

The second sentence was added to

make clear that ‘‘the term ‘interactive

service’ is not intended to cover

traditional practices engaged in by, for

example, radio broadcast stations,

through which individuals can ask the

station to play a particular sound

recording as part of the service’s general

programming available for reception by

members of the public at large.’’ S. Rep.

No. 104–128, at 33–34 (1995).

In the DMCA, Congress expanded this

definition to include further explanation

of the type of activity that does not, in

and of itself, make a service interactive.

Specifically, the DMCA refined the

definition of an ‘‘interactive service’’ as

follows:

(7) An ‘‘interactive service’’ is one

that enables a member of the public to

receive a transmission of a program

specially created for the recipient, or on

Federal Register / Vol. 65, No. 100 / Tuesday, May 23, 2000 / Proposed Rules 33267

1 DiMA is a trade association that represents

approximately 40 companies that engage in various

forms of Internet multimedia activities, including

activities that permit consumers to influence the

programming streamed to the public over the

Internet.

2On March 16, 2000, in response to a petition

from the Recording Industry Association of

America, the Office published a notice of proposed

rulemaking seeking comment on whether to amend

its regulation that defines a ‘‘Service’’ for purposes

of the statutory license governing the public

performance of sound recordings by means of

digital audio transmissions, in order to clarify that

transmissions of a broadcast signal over a digital

communications network, such as the Internet, are

not exempt from copyright liability under section

114(d)(1)(A) of the Copyright Act. 65 FR 14227

(March 16, 2000).

request, a transmission of a particular

sound recording, whether or not as part

of a program, which is selected by or on

behalf of the recipient. The ability of

individuals to request that particular

sound recordings be performed for

reception by the public at large, or in

the case of a subscription service, by all

subscribers of the service, does not

make a service interactive, if the

programming on each channel of the

service does not substantially consist of

sound recordings that are performed

within 1 hour of the request or at a time

designated by either the transmitting

entity or the individual making such

request. If an entity offers both

interactive and noninteractive services

(either concurrently or at different

times), the noninteractive component

shall not be treated as part of an

interactive service.

17 U.S.C. 114(j)(7) (1998).

In both cases, Congress sought to

identify a service as interactive

according to the amount of influence a

member of the public would have on the

selection and performance of a

particular sound recording. Neither

definition, however, draws a bright line

delineating just how much input a

member of the public may have upon

the basic programming of the service.

Consequently, the Digital Media

Association (‘‘DiMA’’) seeks

clarification on this point and a

regulation that would prohibit

designating a service as interactive

merely because it offers a consumer

some degree of influence over the

streamed programming.

DiMA Petition

On April 17, 2000, DiMA 1 filed a

petition for a rulemaking with the

Copyright Office asking that the Office

adopt a rule stating that a webcasting

service does not become an interactive

service merely because a consumer

exerts some degree of influence over the

streamed programming. DiMA seeks

modification of the current regulation

that defines a ‘‘Service’’ in order to

better distinguish between activities that

make a webcasting service noninteractive from those activities that

make a service interactive. 37 CFR

201.35(b)(2). The amendment would

add specific language to clarify that

services which otherwise meet the

requirements for the compulsory license

set forth in section 114(f) do not become

ineligible for the section 114 statutory

license merely because they offer the

consumer some degree of influence over

the streamed programming. DiMA then

proposes additional language which, in

its view, would clarify that such a

webcasting service is not an ‘‘interactive

service’’ under section 114(j)(7) of the

Copyright Act, provided that the service

meet three criteria.

The text of the proposed amendment,

to be added at the end of the current

regulatory text, would read as follows:

A Service making transmissions that

otherwise meet the requirements for the

section 114(f) statutory license is not

rendered ‘‘interactive,’’ and thus ineligible

for the statutory license, simply because the

consumer may express preferences to such

Service as to the musical genres, artists and

sound recordings that may be incorporated

into the Service’s music programming to the

public. Such a Service is not ‘‘interactive’’

under section 114(j)(7), as long as: (i) its

transmissions are made available to the

public generally; (ii) the features offered by

the Service do not enable the consumer to

determine or learn in advance what sound

recordings will be transmitted over the

Service at any particular time; and (iii) its

transmissions do not substantially consist of

sound recordings performed within one hour

of a request or at a time designated by the

transmitting entity or the individual making

the request.

DiMA Petition at 14, Attachment A—

Proposed Rule.

In support of its petition, DiMA

argues that the consumer input is

merely a guide to program selections

and that ‘‘the actual transmissions of

sound recordings over these consumerinfluenced stations is generated by a

computer according to programs and

playlists created by the service, * * *

such [that] listeners (including the

‘creator(s)’ of consumer-influenced

stations) never have the ability to

determine or know in advance whether

any particular song or album will be

performed or even when, over an

extended period, any particular artist’s

works will appear.’’ Petition at 12. In

summary, DiMA argues that consumerinfluenced stations comply with the

spirit and intent of the law because the

contribution of the consumer does not

increase the risk that the consumer will

make copies of the transmissions and

displace the sale of a sound recording in

the marketplace.

DiMA asserts that this issue must be

resolved prior to the convening of the

Copyright Arbitration Royalty Panel

(‘‘CARP’’) which will determine the

rates for the section 114 statutory

license ‘‘in order to define the

appropriate bounds of the statutory

license proceedings—which will be

before this CARP.’’ Petition at 2. DiMA

requests this rulemaking for the purpose

of defining the scope of the pending

arbitration proceeding that will set rates

and terms for the section 114 statutory

license with respect to the known

‘‘consumer-influenced webcasting

technologies presently developed or

employed by DiMA members.’’ Petition

at 6 n.3.

Comments

Under section 702 of the Copyright

Act, title 17 of the United States Code,

the Register of Copyrights can ‘‘establish

regulations not inconsistent with law for

the administration of the functions and

duties made the responsibility of the

Register under this title.’’ The question

is whether a rulemaking proceeding is

the appropriate forum for determining

whether certain activities make a service

‘‘interactive.’’ While this may, at first

glance, appear to be an endeavor similar

to the subject of the pending rulemaking

regarding definition of a ‘‘service,’’ 2 that

proceeding presents a situation

involving a clearly defined class of

services (‘‘any entity that transmits an

AM/FM broadcast signal over a digital

communications network such as the

Internet’’). See 65 FR 14227 (March 16,

2000). In contrast, it is debatable

whether the DiMA petition has

presented a clearly defined class of

services. Moreover, assuming that this is

an appropriate topic for a rulemaking

proceeding, it is not clear whether there

is sufficient information at this time to

promulgate a regulation that could

accurately distinguish between

activities that are interactive and those

that are not. The Office is concerned

that it may be being asked to define a

moving target.

Interested parties are invited to

comment on: (1) Whether the Office

should conduct the rulemaking on the

subject addressed in the DiMA petition,

and (2), if so, what issues should the

Office address and what should the

Office’s conclusion be?

All interested parties are requested to

file comments and replies with the

Copyright Office in accordance with the

information set forth in this document.

The Copyright Office has posted the

DiMA petition to its website (http://

33268 Federal Register / Vol. 65, No. 100 / Tuesday, May 23, 2000 / Proposed Rules

1EPA recognizes that in its recent decision, the

United States Court of Appeals remanded certain

issues regarding the NOx SIP call to the Agency. See

State of Michigan v. United States Environmental

Protection Agency, No. 98–1497, United States

Court of Appeals for the District of Columbia

Circuit, slip op. issued March 3, 2000. Those issues,

however, do not include the reporting requirements

and the proposed consolidation of those

requirements does not represent any prejudgment of

the issues on remand to the Agency. EPA also

recognizes that at this time the SIP call submission

deadline has been stayed by the court and that the

reporting requirements connected with the SIP call

would not go into effect until the issues regarding

the timing of SIP submissions are resolved.

www.loc.gov/copyright/carp/

DiMApetition.pdf) in order to facilitate

the dissemination of the information

presented in the petition.

Dated: May 18, 2000.

Marilyn Kretsinger,

Assistant General Counsel.

[FR Doc. 00–12970 Filed 5–22–00; 8:45 am]

BILLING CODE 1410–31–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 51

[AD–FRL–6703–6]

RIN 2060–AH25

Consolidated Emissions Reporting

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing this rule to

improve and simplify emissions

reporting. Many State and local agencies

asked EPA to take this action to:

consolidate reporting requirements;

improve reporting efficiency; provide

flexibility for data gathering and

reporting; better explain to program

managers and the public the need for a

consistent inventory program.

Consolidated reporting should increase

the efficiency of the emission inventory

program and provide more consistent

and uniform data. EPA is seeking

comment on the addition of reporting

requirements for hazardous air

pollutants (HAPs), and is proposing to

add reporting requirements for

particulate matter less than or equal to

2.5 micrometers (PM 2.5) and its

precursors, and is proposing to reduce

the reporting requirements for other

criteria pollutants.

DATES: Submit comments on or before

July 7, 2000.

ADDRESSES: Send comments (in

duplicate, if possible) to: Air and

Radiation Docket (6102), US

Environmental Protection Agency, Attn:

Docket No. A9840, 401 M Street, SW.,

Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT:

William B. Kuykendal, Emissions,

Monitoring, and Analysis Division

(MD–14), Office of Air Quality Planning

and Standards, U.S. Environmental

Protection Agency, Research Triangle

Park, North Carolina, 27711, Telephone:

(919) 541–5372, email:

kuykendal.bill@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Authority

Sections 110(a)(2)(F), 110(a)(2)(K),

110(a)(2)(J),112, 182(a)(3)(B), 172(c)(3),

182(a)(3)(A), 187(a)(5), 301(a)

II. Background

Emission inventories are critical for

the efforts of State, local, and federal

agencies to attain and maintain the

National Ambient Air Quality Standards

(NAAQS) that EPA has established for

criteria pollutants such as ozone,

particulate matter, and carbon

monoxide. Pursuant to its authority

under section 110 of Title I of the Clean

Air Act, EPA has long required State

Implementation Plans (SIPs) to provide

for the submission by States to EPA of

emission inventories containing

information regarding the emissions of

criteria pollutants and their precursors

(e.g., volatile organic compounds

(VOC)). EPA codified these

requirements in 40 CFR part 51, subpart

Q in 1979 and amended them in 1987.

The 1990 Amendments to the Clean

Air Act (Act) revised many of the

provisions of the Clean Air Act related

to the attainment of the NAAQS and the

protection of visibility in mandatory

class I Federal areas (certain national

parks and wilderness areas). These

revisions establish new periodic

emission inventory requirements

applicable to certain areas that were

designated nonattainment for certain

pollutants. For example, section

182(a)(3)(A) required States to submit an

emission inventory every three years (3-

Year cycle) for ozone nonattainment

areas beginning in 1993. Emissions

reported must include VOC, nitrogen

oxides (NOx), and carbon monoxide

(CO) for point, area, mobile (onroad and

nonroad), and biogenic sources.

Similarly, section 187(a)(5) requires

States to submit an inventory every

three years for CO nonattainment areas

for the same source classes, except

biogenic sources. EPA, however, did not

codify these statutory requirements in

the Code of Federal Regulations (CFR),

but simply relied on the statutory

language to implement them.

EPA has promulgated the NOx SIP

Call (§ 51.122) which calls on the

effected States and the District of

Columbia to submit SIP revisions

providing for NOX reductions in order

to reduce the amount of ozone and

ozone precursors transported between

states. As part of that rule, EPA

established reporting requirements to be

included in the SIP revisions to be

submitted by States in accordance with

that action. 1

This proposal consolidates the

various reporting requirements that

already exist into one place in the CFR,

establishes new ones for PM 2.5 and

regional haze, establishes new

requirements for the statewide reporting

of area source and mobile source

emissions, includes the reporting

requirements for the NOX SIP call and

asks for comments on new reporting for

air toxics.

In this action, we refer to these types

of inventories as the following:

• Point source inventories

• 3-Year cycle inventories

• NOX SIP call inventories

States use data obtained through

current annual reporting requirements

(point source inventories) to record

emissions from large sources and to

track progress in reducing emissions

from them. States get 3-Year cycle data

from stationary sources with lower

yearly emission levels and use them

with the point source inventories to

update their emission inventory every

three years. States included in the NOX

SIP call will collect emissions data from

the sources that are subject to control as

a means of compliance. The Rule also

takes advantage of data from Emission

Statements available to States but not

reported to EPA. As appropriate, States

may use this data to meet their reporting

requirements for point source data.

Combining data from these activities

gets the most information from sources

with the least burden on the industry

and less effort by State and local

government agencies. By treating this

information as a comprehensive

emission inventory, States and local

agencies may do the following:

• Measure their progress in reducing

emissions.

• Have a tool they can use to support

future trading programs.

• Set a baseline from which to do

future planning.

• Answer the public’s request for

information.