63502 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules

1An unaffiliated copyright owner is one whose

interests are not represented by a performing rights

society, or by any other organization participating

in the proceeding.

State highway department indicating its

approval and any stipulations it

considers desirable for the additional

right-of-way.

(b) Future relocation or change of the

additional right-of-way made necessary

by the State highway use will be

accomplished at the expense of the

additional right-of-way permittee.

§ 14.52 Termination of highway use

(a) If at any time the need for any such

lands or materials for highway purposes

pursuant to a highway easement deed

will no longer exist, notice of the fact

will be given by the State highway

department to the Secretary of

Transportation and such lands or

materials will revert to the control of the

Secretary of the Interior.

(b) Upon receipt of such notice, the

Secretary of Transportation will

immediately notify the Secretary of the

Interior and take steps as necessary to

revoke and abandon the highway

easement deed and revest the Secretary

of the Interior with clear and exclusive

title of unencumbered land.

Dated: November 13, 1996.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and

Parks.

Note: This document was received at the

Office of the Federal Register on November

24, 1997.

[FR Doc. 97–31262 Filed 11–28–97; 8:45 am]

BILLING CODE 4310–70–P

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 253

[Docket No. 96–6 CARP NCBRA]

Noncommercial Educational

Broadcasting Compulsory License

AGENCY: Copyright Office, Library of

Congress.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Copyright Office of the

Library of Congress is submitting for

public comment additional settlement

proposals for the adjustment of the

royalty rates for the noncommercial

educational broadcasting compulsory

license and proposed regulations for

implementing these rates.

DATES: Comments and Notices of Intent

to Participate are due by December 29,

1997. If comments and Notices of Intent

to Participate are not received by this

date, the proposed terms and rates shall

become effective on January 1, 1998.

ADDRESSES: If sent by mail, an original

and five copies of comments, and

Notices of Intent to Participate, should

be addressed to: Copyright Arbitration

Royalty Panel (CARP), P.O. Box 70977,

Southwest Station, Washington, DC

20024. If hand delivered, an original

and five copies of comments, and

Notices of Intent to Participate, should

be brought to: Office of the Copyright

General Counsel, James Madison

Memorial Building, Room LM–407, First

and Independence Avenue, SE.,

Washington, DC 20540.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel,

William J. Roberts, Senior Attorney, or

Tanya Sandros, Attorney Advisor,

Copyright Arbitration Royalty Panel

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

Station, Washington, D.C. 20024.

Telephone (202) 707–8380. Telefax:

(202) 707–8366.

SUPPLEMENTARY INFORMATION:

I. Background

Section 118 of the Copyright Act, 17

U.S.C., creates a compulsory license for

the use of published nondramatic

musical works and published pictorial,

graphic, and sculptural works in

connection with noncommercial

broadcasting. Terms and rates for this

compulsory license, applicable to

parties who are not subject to privately

negotiated licenses, are published in 37

CFR part 253 and are subject to

adjustment at five year intervals. 17

U.S.C. 118(c). The last adjustment of the

terms and rates for the section 118

license occurred in 1992, making 1997

a window year for the adjustment of

these terms and rates. 57 FR 60954

(December 22, 1992).

Section 118(b) provides that any

copyright owner and any public

broadcasting entity may negotiate the

rates and terms for the compulsory

license, or in the absence of a negotiated

license,

The Librarian of Congress shall, pursuant

to Chapter 8, convene a copyright arbitration

royalty panel to determine and publish in the

Federal Register a schedule of rates and

terms which, subject to paragraph (2), shall

be binding on all owners of copyright in

works specified by this subsection and public

broadcasting entities, regardless of whether

such copyright owners have submitted

proposals to the Librarian of Congress * * *

Interested parties who submit

proposals for adjusting the terms and

rates for the section 118 license directly

to the Librarian of Congress may

petition the Librarian to submit these

proposals to a public notice and

comment proceeding, whereby

copyright owners and users that would

be affected by the proposals are given

the opportunity to challenge them. 37

CFR 251.63. Any party who objects to

the proposed terms and rates must

submit, in turn, its challenges by a date

certain, and must be entitled to

participate in the CARP proceeding

adjusting the section 118 terms and

rates. If no challenges are received, or if

challenges are received by an interested

party who will not participate in a

CARP proceeding, the Librarian may

adopt the terms and rates of the

proposals.

Accordingly, interested copyright

owners and users of these works may

file either a voluntary agreement or a

joint proposal outlining the adjustments

to the terms and rates for the section 118

license; or in the case of unaffiliated

copyright owners,1 the users may

submit their proposals for the

adjustment of the terms and rates of the

section 118 license directly to the

Librarian of Congress. See 62 FR 51619

(October 2, 1997). A joint proposal

differs significantly from a voluntary

settlement. The parties to a voluntary

agreement represent all persons who

would be affected by the agreement and

the parties have the authority to bind

their members. In a joint proposal, the

parties to the agreement do not

represent all persons who would be

affected by the agreement, or if they do,

at least one of the parties does not have

the authority to bind its members.

II. This Proceeding

A. The Interested Parties

Seven parties filed notices of intent to

participate with the Copyright Office in

a proceeding to adjust the terms and

rates of the section 118 license. Two

additional parties, The American

Council on Education and The National

Federation of Community Broadcasters,

participated in the negotiations of the

joint proposals which certain parties

filed with the Office on October 1, 1997.

The following parties represent users of

copyrighted works in this proceeding:

Public Broadcasting Services (PBS)—

a non-profit membership corporation

which, among other things, represents

the interests of its member

noncommercial, educational

broadcasting stations in rate setting and

royalty distribution proceedings in the

United States, Canada, and in Europe.

National Public Radio (NPR)—a nonprofit membership organization

dedicated to the development of a
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules 63503

diverse noncommercial educational

radio programming service.

National Religious Broadcasters

Music License Committee (NRBMLC)—

an organization that represents

noncommercial educational radio

broadcasters that are associated as

members of National Religious

Broadcasters.

The American Council on Education

(ACE)—an association representing over

1,500 colleges, universities and

associations in higher education, some

of which operate noncommercial

educational radio broadcast stations.

The National Federation of

Community Broadcasters (NFCB)—a

national membership organization

representing over 85 independent,

community based noncommercial radio

broadcasters.

The following parties represent the

owners of the copyrighted works:

American Society of Composers,

Authors and Publishers (ASCAP)—a

performing rights society which, among

other things, licenses on a non-exclusive

basis the right of nondramatic public

performance of its members’

copyrighted musical compositions.

Broadcast Music, Inc. (BMI)—a

performing rights society which, among

other things, licenses the non-exclusive

right to perform publicly the

copyrighted musical compositions of its

writers and publisher affiliates.

SESAC, Inc.—a performing rights

society which, among other things,

licenses the non-exclusive right to

perform publicly the copyrighted

musical compositions of its writers and

publisher affiliates.

National Music Publishers

Association, Inc. (NMPA) and The Harry

Fox Agency, Inc. (HFA)—NMPA is an

organization representing the interests

of over 600 commercially active

American music publishers, and the

HFA is a wholly owned subsidiary

which acts as a licensing agent for over

17,000 publishers.

B. Chronology

On October 18, 1996, the Library

published a notice in the Federal

Register requesting comments from

interested parties as to the need for a

CARP proceeding to adjust the section

118 terms and rates. 61 FR 54459

(October 18, 1996). The notice also

announced the dates of the voluntary

negotiation period, a precontroversy

discovery schedule, and an initiation

date for a CARP. At the request of the

parties, the Library vacated the schedule

and instructed the parties to appear at

the Library on May 1, 1997, to inform

the Office of the progress of their

settlement negotiations.

The parties appeared at the May 1

status conference and requested

additional time. The Office granted this

request, but scheduled another status

meeting in order to monitor the progress

of the negotiations. The staff from the

Copyright Office met with the parties

again on July 24, 1997, at which time

the parties identified the need for a

CARP proceeding. Subsequently, the

Library announced a second schedule

setting dates for the precontroversy

discovery period and for convening the

CARP. Order in Docket No. 96–4 CARP

NCBRA (July 30, 1997).

In accordance with the precontroversy

schedule, on September 2, 1997, the

Copyright Office received proposed

rates and terms for the payment of

royalty fees to ‘‘unaffiliated copyright

owners,’’ from the National Religious

Broadcasters Music License Committee

(NRBMLC), the Public Broadcasting

Service, and the National Public Radio.

Because the identity of such copyright

owners is not known, copyright users

are unable to negotiate with them to

reach private agreements, and their

interests would not be represented if the

matter were submitted to a CARP.

Accordingly, on October 2, 1997, the

Copyright Office published the

proposed terms and rates for public

comment. 62 FR 51619 (Oct. 2, 1997).

The notice elicited no comments

opposing the proposed rates for the

‘‘unaffiliated copyright owners.’’

Regulatory language implementing

these proposals has been included in

this document. Although further

comment on the substance of these

regulations is precluded, parties may

file comments with the Copyright Office

concerning the implementation of the

proposals in the regulatory language.

Negotiations continued throughout

the precontroversy settlement period.

As a result, on October 1, 1997, certain

parties filed notices of settlement and

joint proposals for further adjusting the

rates for the payment of the

noncommercial compulsory license

royalties, pursuant to 17 U.S.C. 118.

1. Notices of Settlement

SESAC, Inc., on behalf of its affiliated

songwriters and music publishers, and

the National Public Radio (NPR) and the

Public Broadcasting Service (PBS), on

behalf of the noncommercial

educational broadcast stations they

represent, reached an agreement on the

rates and terms of a voluntary license

between them covering the period

January 1, 1998, through December 31,

2002. The Harry Fox Agency, Inc.

(HFA), on behalf of its affiliated music

publishers and other copyright

proprietors, and NPR/PBS, on behalf of

the noncommercial broadcast stations

they represent in this proceeding, also

reached an agreement between them

covering the same period, January 1,

1998, through December 31, 2002.

These license agreements will be

given effect in lieu of any determination

by the Librarian of Congress, provided

that the copies of the license agreements

are filed with the Copyright Office

within thirty days of the execution

thereof. See 17 U.S.C. 118(b)(2).

Accordingly, with respect to the use by

PBS and NPR of musical compositions

found in the SESAC repertory, or the

use by PBS and NPR of copyrighted

works whose owners are represented by

The Harry Fox Agency, no regulations

will be proposed.

2. Uncontested Proposal

The National Religious Broadcasters

Music License Committee (NRBMLC)

submitted an uncontested proposal as

its direct case for adjusting the current

rates and terms for the recording of

nondramatic musical works by

noncommercial radio stations ‘‘other

than in an NPR produced radio

program.’’ See 37 CFR 253.7(b)(4). The

NRBMLC proposes that no adjustment

be made to the rates and terms, which

were in effect for the previous cycle.

NRBMLC contends that the current rates

and terms are ‘‘reasonable and that no

circumstances exist that would warrant

modification of these rates.’’ On

November 18, 1997, NRBMLC filed an

amendment to its proposal adopting the

same rates for this provision that apply

to the works of an ‘‘unaffiliated

copyright owner’’ similarly situated. See

62 FR 51619 (October 2, 1997).

3. Joint Proposals

a. Performances of Musical Works by

Public Broadcasting Entities Licensed to

Colleges and Universities Not Affiliated

with NPR. SESAC and ACE have

submitted a joint proposal which would

increase the rate which applies to public

broadcasting entities licensed to

colleges and universities not affiliated

with NPR to $60 for 1998, subject to an

annual cost of living adjustment

thereafter. See 37 CFR 253.5(c)(3).

ASCAP and ACE also submitted a joint

proposal to the Librarian which

proposes maintaining the current rate

for college radio stations not affiliated

with NPR, with an annual cost of living

adjustment. See 37 CFR 253.5(c)(1). In

addition, BMI, in its direct case,

proposed ‘‘continuing its fee with

respect to college and university radio

stations not affiliated with NPR, subject

to an annual cost of living adjustment

permitted under 37 CFR 253.10 (1996).’’
63504 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules

Direct Case of BMI at 2. See 37 CFR

253.5(c)(2).

Both ASCAP and BMI propose that

the 1998 rates consist of the current rate

with an annual cost of living increase,

based upon the annual change in the

Consumer Price Index (CPI)—the

methodology adopted by the former

Copyright Royalty Tribunal in the 1987

rate adjustment proceeding and

maintained in the 1992 rate adjustment

proceeding. 52 FR 49010 (December 29,

1987) and 57 FR 60954 (December 22,

1992). Assuming no party challenges the

ASCAP and BMI proposals, new rates

for ASCAP and BMI will be calculated

based upon the change in the CPI,

during the period between the first CPI

subsequent to December 1, 1996, and

the last CPI published prior to December

1, 1997. These rates will be published

at the time the final rules are published

in the Federal Register. No similar

adjustment is necessary for the rate

jointly proposed by SESAC and ACE,

since their proposed rate already reflects

an upward adjustment for the coming

year. In each subsequent year covered

by the terms of these proposals, an

annual cost of living adjustment will be

made to the royalty rate for performing

the musical compositions in the

ASCAP, BMI, and SESAC repertory.

The parties to these joint proposals

submit that the proposed annual

compulsory license fees are made on a

nonprejudicial and nonprecedential

basis. As the Copyright Royalty Tribunal

did in the 1987 rate adjustment

proceeding, and again in the 1992 rate

adjustment proceeding, the Librarian

recognizes that the joint proposals do

not reflect any assessment by any of the

parties of the absolute or relative value

of the right of performance of music in

the ASCAP, BMI, or SESAC repertory by

college radio stations.

b. Performances of Musical

Compositions by Public Broadcasting

Stations Other Than NPR or College

Stations. Joint proposals were submitted

to adjust the rates which apply to public

broadcasting radio stations which are

not licensed to colleges and universities

and which are not affiliated with NPR.

SESAC, BMI, and ASCAP, each

submitted separate joint proposals with

the National Religious Broadcasters

Music License Committee (NRBMLC)

and the National Federation of

Community Broadcasters (NFCB). The

proposals continue the general trend of

annual adjustments reflected in the

current regulations, 37 CFR

253.6(c)(1)(2)(3), and have been made

on a nonprejudicial and

nonprecedential basis.

Therefore, the Librarian recognizes

that the joint proposals do not reflect

any assessment by any of the parties of

the absolute or relative value of the right

of the performance of music in the

ASCAP, BMI, or ASCAP repertory by

community radio stations.

C. Comments and Notices of Intent To

Participate

Any party who wishes to challenge

the proposed rates must submit its

written comments to the Librarian of

Congress no later than close of business

on December 31, 1997. The content of

the written challenge should describe

the party’s interest in this proceeding,

the proposed rule that the party finds

objectionable, and the reasons for the

challenge.

In addition, any party submitting

written challenges must also submit an

accompanying Notice of Intent to

Participate. Failure to submit a Notice of

Intent to Participate will preclude an

interested party from participating in

this proceeding and will preclude

consideration of his or her written

challenge. Any interested party that

does submit a Notice of Intent to

Participate will be contacted by the

Librarian as to when his or her written

direct case is due. It is the intention of

the Librarian to include such parties in

the CARP proceeding that shall

commence on December 31, 1997.

The following proposed rules

includes regulatory language to

implement the proposals filed with the

Library of Congress on September 2,

1997, and published in the Federal

Register on October 2, 1997, for public

comment pursuant to 37 CFR 251.63.

The Copyright Office invites public

comment on the proposed regulatory

language implementing the earlier

proposals, in addition to, the proposals

discussed above. If no comments or

Notices of Intent to Participate are

received by close of business on the date

for filing such comments, the proposed

rates and terms shall become effective

on January 1, 1998.

List of Subjects in 37 CFR Part 253

Copyright, Music, Radio, Television.

For the reasons set forth in the

preamble, the Library proposes to

amend 37 CFR part 253 as follows:

PART 253—USE OF CERTAIN

COPYRIGHTED WORKS IN

CONNECTION WITH

NONCOMMERCIAL EDUCATIONAL

BROADCASTING

1. The authority citation for part 253

continues to read as follows:

Authority: 17 U.S.C. 118, 801(b)(1) and

803.

2. Section 253.1 is revised to read as

follows:

§ 253.1 General.

This part 253 establishes terms and

rates of royalty payments for certain

activities using published nondramatic

musical works and published pictorial,

graphic and sculptural works during a

period beginning on January 1, 1998,

and ending on December 31, 2002.

Upon compliance with 17 U.S.C. 118,

and terms and rates of this part, a public

broadcasting entity may engage in the

activities with respect to such works set

forth in 17 U.S.C. 118(d).

3. Section 253.4 is amended by

revising the introductory text, paragraph

(a)(1) through (a)(8), and paragraph (c)

to read as follows:

§ 253.4 Performance of musical

compositions by PBS, NPR and other public

broadcasting entities engaged in the

activities set forth in 17 U.S.C. 118(d).

The following schedule of rates and

terms shall apply to the performance by

PBS, NPR and other public broadcasting

entities engaged in activities set forth in

17 U.S.C. 118(d) of copyrighted

published nondramatic musical

compositions, except for public

broadcasting entities covered by

§§ 253.5 and 253.6, and except for

compositions which are the subject of

voluntary license agreements, or

compositions in the repertories of

ASCAP, BMI or SESAC which are

licensed on terms and conditions

established by a duly empowered

Copyright Arbitration Royalty Panel

pursuant to the procedures set forth in

subchapter B of 37 CFR, part 251.

(a) Determination of royalty rates. (1)

For the performance of such a work in

a feature presentation of PBS:

1998–2002 ............................................$211.53

(2) For the performance of such a

work as background or theme music in

a PBS program:

1998–2002 ..............................................$53.59

(3) For the performance of such a

work in a feature presentation of a

station of PBS:

1998–2002 ..............................................$18.08

(4) For the performance of such a

work as background or theme music in

a program of a station of PBS:

1998–2002 ................................................$3.81

(5) For the performance of such a

work in a feature presentation of NPR:

1998–2002 ..............................................$21.44

(6) For the performance of such a

work as background or theme music in

an NPR program:

1998–2002 ................................................$5.20
Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules 63505

(7) For the performance of such a

work in a feature presentation of a

station of NPR:

1998–2002 ................................................$1.52

(8) For the performance of such work

as background or theme music in a

program of a station of NPR:

1998–2002 ..................................................$.54

* * * * *

(c) Records of use. PBS and NPR shall,

upon the request of a copyright owner

of a published musical work who

believes a musical composition of such

owner has been performed under the

terms of this schedule, permit such

copyright owner a reasonable

opportunity to examine their standard

cue sheets listing the nondramatic

performances of musical compositions

on PBS and NPR programs. Any local

PBS and NPR station that shall be

required by the provisions of any

voluntary license agreement with

ASCAP or BMI covering the license

period January 1, 1998, to December 31,

2002, to prepare a music use report

shall, upon request of a copyright owner

who believes a musical composition of

such owner has been performed under

the terms of this schedule, permit such

copyright owner to examine the report.

* * * * *

4. In § 253.5, paragraph (c)(3) is

revised to read as follows:

§ 253.5 Performance of musical

compositions by public broadcasting

entities licensed to colleges and

universities.

* * * * *

(c) * * *

(3) For all such compositions in the

repertory of SESAC, $60 annually.

* * * * *

5. In § 253.6, paragraph (c) is revised

to read as follows:

§ 253.6 Performance of musical

compositions by other public broadcasting

entities.

* * * * *

(c) Royalty rate. A public broadcasting

entity within the scope of this section

may perform published nondramatic

musical compositions subject to the

following schedule of royalty rates:

(1) For all such compositions in the

repertory of ASCAP, in 1998, $375; in

1999, $390; in 2000, $405; in 2001,

$420; in 2002, $440.

(2) For all such compositions in the

repertory of BMI, in 1998, $375; in 1999,

$390; in 2000, $405; in 2001, $420; in

2002, $440.

(3) For all such compositions in the

repertory of SESAC, in 1998, $78; in

1999, $82; in 2000, $86; in 2001, $89;

in 2002, $92.

(4) For the performance of any other

such compositions, in 1998 through

2002, $1.

* * * * *

6. Section 253.7 is amended by

revising paragraphs (a), (b)(1) (i) and (ii),

and (b)(2), (4), and (5) to read as follows:

§ 253.7 Recording rights, rates and terms.

(a) Scope. This section establishes

rates and terms for the recording of

nondramatic performances and displays

of musical works, other than

compositions subject to voluntary

license agreements, or compositions

represented by the Harry Fox Agency,

Inc., SESAC, and/or the National Music

Publishers Association and which are

licensed on terms and conditions

established by a duly empowered

Copyright Arbitration Royalty Panel

pursuant to the procedures set forth in

37 CFR subchapter B, on and for the

radio and television programs of public

broadcasting entities, whether or not in

synchronization or timed relationship

with the visual or aural content, and for

the making, reproduction, and

distribution of copies and phonorecords

of public broadcasting programs

containing such nondramatic

performances and displays of musical

works solely for the purpose of

transmission by public broadcasting

entities. The rates and terms established

in this schedule include the making of

the reproductions described in 17 U.S.C.

118(d)(3).

(b) Royalty rate. (1)(i) For uses

described in paragraph (a) of this

section of a musical work in a PBSdistributed program, the royalty fees

shall be calculated by multiplying the

following per-composition rates by the

number of different compositions in that

PBS-distributed program:

1998–2002

Feature ........................................ $106.04

Concert feature (per minute) ...... 31.84

Background ................................. 53.59

Theme:

Single program or first series

program ............................... 53.59

Other series program .............. 21.75

(ii) For such uses other than in a PBSdistributed television program, the

royalty fee shall be calculated by

multiplying the following percomposition rates by the number of

different compositions in that program:

1998–2002

Feature ........................................ $8.76

Concert feature (per minute) ...... 2.30

Background ................................. 3.81

1998–2002

Theme:

Single program or first series

program ............................... 3.81

Other series program .................. 1.52

* * * * *

(2) For uses licensed herein of a

musical work in a NPR program, the

royalty fees shall be calculated by

multiplying the following percomposition rates by the number of

different compositions in any NPR

program distributed by NPR. For

purposes of this schedule ‘‘National

Public Radio’’ programs include all

programs produced in whole or in part

by NPR, or by any NPR station or

organization under contract with NPR.

1998–2002

Feature ........................................ $11.48

Concert feature (per half hour) ... 16.85

Background ................................. 5.75

Theme:

Single program or first series

program ............................... 5.75

Other series program .................. 2.29

(3) * * *

(4) For such uses other than in a NPRproduced radio program:

1998–2002

Feature ........................................ $.74

Feature (concert)(per half ........... 1.54

Background ................................. .37

(5) The schedule of fees covers

broadcast use for a period of three years

following the first broadcast.

Succeeding broadcast use periods will

require the following additional

payment: second three-year period—50

percent; each three-year period

thereafter—25 percent; provided that a

100 percent additional payment prior to

the expiration of the first three-year

period will cover broadcast use during

all subsequent use periods without

limitation. Such succeeding uses which

are subsequent to December 31, 2002

shall be subject to the royalty rates

established in this schedule.

* * * * *

7. In § 253.8, paragraphs (b)(1) and

(f)(1) are revised as follows:

§ 253.8 Terms and rates of royalty

payments for the use of published pictorial,

graphic, and sculptural works.

* * * * *

(b) Royalty rate. (1) The following

schedule of rates shall apply to the use

of works within the scope of this

section:

(i) For such uses in a PBS-distributed

program:
63506 Federal Register / Vol. 62, No. 230 / Monday, December 1, 1997 / Proposed Rules

(A) For a featured display of a work.

1998–2002 ..............................................$64.78

(B) For background and montage

display.

1998–2002 ..............................................$31.59

(C) For use of a work for program

identification or for thematic use.

1998–2002 ............................................$127.71

(D) For the display of an art

reproduction copyrighted separately

from the work of fine art from which the

work was reproduced, irrespective of

whether the reproduced work of fine art

is copyrighted so as to be subject also

to payment of a display fee under the

terms of the schedule.

1998–2002 ..............................................$41.95

(ii) For such uses in other than PBSdistributed programs:

(A) For featured display of a work.

1998–2002 ..............................................$41.95

(B) For background and montage

display.

1998–2002 ..............................................$21.51

(C) For use of a work for program

identification or for thematic use.

1998–2002 ..............................................$85.76

(D) For the display of an art

reproduction copyrighted separately

from the work of fine art from which the

work was reproduced, irrespective of

whether the reproduced work of fine art

is copyrighted so as to be subject also

to payment of a display fee under the

terms of this schedule.

1998–2002 ..............................................$21.51

* * * * *

(f) Terms of use. (1) The rates of this

schedule are for unlimited broadcast use

for a period of three years from the date

of the first broadcast use of the work

under this schedule. Succeeding

broadcast use periods will require the

following additional payment: Second

three-year period—50 percent; each

three-year period thereafter—25 percent;

provided that a 100 percent additional

payment prior to the expiration of the

first three-year period will cover

broadcast use during all subsequent

broadcast use periods without

limitation. Such succeeding uses which

are subsequent to December 31, 2002,

shall be subject to the rates established

in this schedule.

* * * * *

9. In § 253.10, paragraph (a) is revised

to read as follows:

§ 253.10 Cost of living adjustment.

(a) On December 1, 1998, the

Librarian of Congress shall publish in

the Federal Register a notice of the

change in the cost of living as

determined by the Consumer Price

Index (all consumers, all items) during

the period from the most recent Index

published prior to December 1, 1997, to

the most recent Index published prior to

December 1, 1998. On each December 1,

thereafter the Librarian of Congress shall

publish a notice of change in the cost of

living during the period from the most

recent Index published prior to the

previous notice, to the most recent

Index published prior to December 1 of

that year.

* * * * *

Dated: November 18, 1997.

Marybeth Peters,

Register of Copyrights.

James H. Billington,

The Librarian of Congress.

[FR Doc. 97–31295 Filed 11–26–97; 9:39 am]

BILLING CODE 1410–33–P

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 255

[Docket No. 96–4 CARP DPRA]

Mechanical and Digital Phonorecord

Delivery Rate Adjustment Proceeding

AGENCY: Copyright Office, Library of

Congress.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Copyright Office of the

Library of Congress is submitting for

public comment a joint petition

concerning the adjustment of the

physical phonorecord and digital

phonorecord delivery royalty rates and

proposed regulations implementing

these rates.

DATES: Comments and notices of intent

to participate are due by December 29,

1997. If comments and Notices of Intent

to Participate are not received by this

date, the proposed terms and rates shall

become effective on January 1, 1998.

ADDRESSES: If sent by mail, an original

and five copies of comments, and

Notices of Intent to Participate, should

be addressed to: Copyright Arbitration

Royalty Panel (CARP), P.O. Box 70977,

Southwest Station, Washington, DC

20024. If hand delivered, an original

and five copies of comments, and

Notices of Intent to Participate, should

be brought to: Office of the Copyright

General Counsel, James Madison

Memorial Building, Room LM–407, First

and Independence Avenue, SE.,

Washington, DC 20540.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel;

William J. Roberts, Senior Attorney, or

Tanya Sandros, Attorney Advisor,

Copyright Arbitration Royalty Panel

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

Station, Washington, DC 20024.

Telephone (202) 707–8380. Telefax:

(202) 707–8366.

SUPPLEMENTARY INFORMATION:

How Were the Current Royalty Rates

and Terms Established for the Making

and Distribution of a Physical

Phonorecord and a Digital Phonorecord

Delivery?

The mechanical compulsory license,

17 U.S.C. 115, requires a copyright

owner of a nondramatic musical work to

grant a license to any person who wants

to make and distribute phonorecords of

that work, provided that the copyright

owner has allowed phonorecords of the

work to be produced and distributed,

and that the licensee pays the statutory

rate. Until its demise in 1993, the

Copyright Royalty Tribunal had

authority to adjust the statutory rates for

the making and distribution of physical

phonorecords, and did so in 1987, see

52 FR 22637 (June 15, 1987), setting the

rates and terms for the mechanical

compulsory license for at least the next

ten years.

The Copyright Act provides that,

during the tenth calendar year, any

copyright owner or user whose royalty

rates are specified by the statutory

license may file a petition requesting an

adjustment to the rates and terms. 17

U.S.C. 803(a) (1) and (3). This ten-year

cycle makes 1997 a window year for

commencing a proceeding to further

adjust the mechanical phonorecord

compulsory license royalty rates.

On November 1, 1995, Congress

passed the Digital Performance Right in

Sound Recording Act of 1995 (Digital

Performance Act), Pub. L. 104–39, 109

Stat. 336, which extended the

mechanical license to digital

phonorecord deliveries. Congress

passed this Act to maintain and reaffirm

the mechanical rights of songwriters and

music publishers in an era of emerging

technology which makes delivery of

digital phonorecords possible. Among

other things, the Digital Performance

Act confirms and clarifies that the scope

of the compulsory license to make and

distribute phonorecords of nondramatic

musical compositions includes digital

transmissions which constitute ‘‘digital

phonorecord deliveries.’’ 17 U.S.C.

115(c)(3).

The Digitial Performance Act sets the

royalty rate for all digital phonorecord

deliveries made or authorized under the

section 115 compulsory license on or

before December 31, 1997, at the current