6558 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Notices

1Claimants to the royalties in the Sound

Recordings Fund for 1992, 1993, and 1994

negotiated a settlement amongst themselves. The

Library has made a full distribution of these funds

to the interested copyright parties who filed timely

claims for a share of these royalties. See Order,

Docket No. 94–2 CARP–DD (December 15, 1994)

and Order in Docket No. 95–1 CARP DD 92–94

(May 16, 1995).

2When the Audio Home Recording Act was

passed, the Copyright Royalty Tribunal had the

authority to conduct the DART distribution

proceedings. The Tribunal, however, was abolished

Dated: February 7, 1997.

Cecily A. Rayburn,

Director, Division of Financial Management,

Office of Management, Administration and

Planning, Employment Standards

Administration.

[FR Doc. 97–3476 Filed 2–11–97; 8:45 am]

BILLING CODE 4510–27–M

LIBRARY OF CONGRESS

Copyright Office

[Docket No. 95–1 CARP DD 92–94]

Distribution of the 1992, 1993, and

1994 Musical Works Funds

AGENCY: Copyright Office, Library of

Congress.

ACTION: Distribution order.

SUMMARY: The Librarian of Congress,

upon recommendation of the Register of

Copyrights, is announcing the

distribution of the royalty fees collected

for Digital Audio Recording Devices and

Media (DART) in the 1992, 1993, and

the 1994 Musical Works Funds. The

Librarian is adopting in part and

rejecting in part the decision of the

Copyright Arbitration Royalty Panel

(CARP).

EFFECTIVE DATE: The distribution

percentages announced in this Order are

effective on February 12, 1997.

ADDRESSES: The full text of the CARP’s

report to the Librarian of Congress is

available for inspection and copying

during normal business hours in the

Office of the General Counsel, James

Madison Memorial Building, Room LM–

407, First and Independence Avenue,

S.E., Washington, DC. 20540.

FOR FURTHER INFORMATION CONTACT:

William Roberts, Senior Attorney, or

Tanya M. Sandros, Attorney-Advisor,

P.O. Box 70977, Southwest Station,

Washington, D.C. 20024. Telephone

(202) 707–8380.

SUPPLEMENTARY INFORMATION:

I. Recommendation of the Register of

Copyrights

Background

On October 28, 1992, Congress

enacted the Audio Home Recording Act,

Pubic Law No. 102–563 (1992). This Act

requires manufacturers and importers to

pay royalties on digital audio recording

devices and media (DART) that are

distributed in the United States. The

royalties are collected by the Copyright

Office and deposited with the Treasury

of the United States. 17 U.S.C. 1005.

These funds are distributed by the

Copyright Office to interested copyright

parties who filed claims with the

Copyright Office each year during

January and February pursuant to either

a universal settlement negotiated by the

claimants to a particular subfund, or by

Order of the Librarian of Congress

(Librarian) following a distribution

proceeding conducted by a Copyright

Arbitration Royalty Panel (CARP).

The Act provides that the royalties are

to be divided into two funds: the Sound

Recordings Fund, which accounts for

662⁄3% of the royalties, and the Musical

Works Fund, which accounts for the

remaining 331⁄3% of the royalties. The

Act further divides each fund into

subfunds.

The Sound Recordings Fund consists

of four subfunds, two of which, the

Nonfeatured Musicians Subfund and the

Nonfeatured Vocalists Subfund, account

for 25⁄8% and 13⁄8%, respectively, of the

Sound Recordings Fund and are

administered by an independent

administrator. The remaining 96% of

the Sound Recordings Fund is further

distributed between two additional

subfunds, the Featured Recording Artist

Subfund and the Sound Recording

Owners Subfund, which receive 40%

and 60%, respectively, of the remaining

96% share of the fund. The Musical

Works Fund consists of two subfunds,

the Publishers Subfund and the Writers

Subfund, each of which receives 50% of

that Fund. 17 U.S.C. 1006(b).

Thus, the Act establishes the

percentages for each fund and subfund,

but directs the CARPs, when necessary,

to determine what amount each

claimant within a subfund is entitled to

receive. The determination and a full

explanation underlying the conclusions

are set out in a written report to the

Librarian.

Distribution of Royalties

Royalties are collected on a quarterly

basis from any importer or manufacturer

that distributes any digital audio

recording device or digital audio

recording medium that it manufactured

in or imported into the United States. 17

U.S.C. 1003(c). As discussed above,

these royalties are collected by the

Copyright Office and invested in

interest-bearing securities with the

United States Treasury for subsequent

distribution to interested copyright

parties. 17 U.S.C. 1005.

An interested copyright party must

submit each year a written claim to the

Copyright Office during the months of

January and February. 17 U.S.C. 1007(a).

Within 30 days after the last day for

filing claims, the statute instructs the

Librarian to ascertain whether there are

any controversies among the claimants

as to the proper distribution of the

royalties in their fund/subfund. If there

are no controversies, the Librarian

authorizes the distribution of the funds

according to the terms of the negotiated

agreements; otherwise, the Librarian is

directed to convene a CARP or CARPs

to decide the proper distribution of the

royalties in each unresolved fund/

subfund. 17 U.S.C. 1007(b)(c).

This Proceeding

The parties in this proceeding are

Broadcast Music, Inc., the American

Society of Composers, Authors, and

Publishers, SESAC, Inc., the Harry Fox

Agency, Inc. (a subsidiary of the

National Music Publishers’ Association,

Inc.), Copyright Management Inc., The

Songwriters Guild of America, and the

Gospel Music Coalition (collectively,

the ‘‘Settling Parties’’), and two pro se

claimants, Eugene Curry and Alicia

Carolyn Evelyn. Ms. Evelyn and Mr.

Curry, both songwriters, chose to

represent their own interests in the

proceeding. Mr. Curry also represented

the publishing interest of Tajai Music,

Inc. (Tajai) for the three years in

dispute. The Settling Parties represent

the over 264,000 remaining publishers

and songwriters with a claim to a share

of the royalties. Settling Parties Direct

Case at 2–3.

The CARP in this proceeding was

convened to determine the distribution

of the royalties in the 1992, 1993, and

1994 Musical Works Funds, which

totaled approximately $355,500.00.1

The Copyright Office received forty-one

claims to the 1992 Musical Works

Fund—twenty-one claims to the Writers

Subfund and twenty claims to the

Publishers Subfund. During the next

filing cycle, the Office received twentytwo claims to the 1993 Musical Works

Fund—twelve claims to the Writers

Subfund and ten claims to the

Publishers Subfund. In 1995, the Office

received twenty-six claims to the 1994

Musical Works Fund, equally divided

between the two subfunds.

This proceeding for the determination

of the distribution of the DART royalties

commenced on November 3, 1993,

when the Settling Parties filed a motion

with the Copyright Royalty Tribunal

(Tribunal) 2 to consolidate the 1992 and
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Notices 6559

by Congress in 1993, and the authority to distribute

DART funds was given to the CARPS, as

administered by the Librarian of Congress. See the

Copyright Royalty Tribunal Reform Act of 1993,

Pubic Law No. 103–198.

3On June 14, 1996, the Settling Parties filed a

motion to dispense with formal hearings and to

conduct this proceeding on the basis of the written

pleadings. The Librarian denied the motion, but

designated the issue to the CARP for further

consideration under their authority to suspend or

waive the relevant provision of the regulations.

Order, Docket No. 95–1 CARP DD 92–94 (July 25,

1996).

1993 DART distribution proceedings.

The CRT granted this motion on

November 29, 1993, see Order, In the

Matter of 1992 Audio Home Recording

Act Distribution Proceeding, CRT

Docket No. 93–1–92DRD (Nov. 29,

1993), but further proceedings were

suspended upon the abolition of the

CRT.

The Copyright Office instituted a new

proceeding for the distribution of 1992

and 1993 DART royalties on March 1,

1994. 59 FR 9773 (March 1, 1994). In

response to this notice, the Settling

Parties and other claimants filed a

motion with the Office requesting the

Office to consolidate the 1992, 1993,

and 1994 DART distribution

proceedings. The Office granted this

request and announced that it would set

a schedule for a DART distribution

proceeding in 1995. 59 FR 35762 (July

13, 1994).

On February 23, 1995, the Office

published a notice requesting comments

as to the existence of controversies in

the consolidated proceeding, and

notices of intent to participate. 60 FR

12251 (March 6, 1995). Twelve parties

filed notices of intent to participate in

this proceeding, including the Settling

Parties, Ms. Evelyn, Mr. Curry and the

publishing company he represents,

Tajai.

Through a series of motions to

dismiss certain parties and as a result of

continued negotiations, nine parties

remained in the DART distribution

proceeding when the Librarian initiated

a CARP to determine the distribution of

the Musical Works Fund royalties for

1992, 1993, and 1994. 61 FR 40464

(August 2, 1996).

On October 4, 1996, the Parties met

with the Panel which determined, for

good cause shown, to proceed on the

basis of the written pleadings alone.3

CARP Order, Docket No. 95–1 CARP DD

92–94 (October 4, 1996). Accordingly,

the CARP instructed the parties to file

their respective proposed findings of

fact and conclusions of law by

November 4, 1996, and to file reply

findings on or before November 14,

1996. The Panel limited the proposed

findings of fact to the material contained

in the written direct cases previously

filed on March 25, 1996. Transcript of

October 4, 1996 Meeting at 33–35.

On December 16, 1996, the

chairperson of the CARP delivered the

Panel’s written report to the Librarian.

The CARP Report

The Panel, after reviewing the written

record, determined that the royalties in

the 1992, 1993, and 1994 Musical Works

Funds should be allocated as follows:

To Mr. Curry: 0.007096% of both the

Writers and Publishers Subfunds in

1992; 0.001608% of both the Writers

and Publishers Subfunds in 1993; and

0.003398% of both the Writers and

Publishers Subfunds in 1994.

To Ms. Evelyn: 0.000084% of only the

Writers Subfund in 1993; and

0.000082% of only the Writers Subfund

in 1994.

To the Settling Parties: 99.992904% of

both the Writers and Publishers

Subfunds in 1992; 99.998308% of the

Writers Subfund and 99.998392% of the

Publishers Subfund in 1993; and

99.99652% of the Writers Subfund and

99.996602% of the Publishers Subfund

in 1994. CARP Report, paras. 71–73.

The Panel utilized the only formula

presented for calculating a claimant’s

share of the royalties. CARP Report,

para. 53. The formula determines each

claimants’ proportionate share of the

royalties as a percentage of the total

song titles sold during a particular year

based on evidence of a claimants’ total

song title sales for that year. Id.

Standard of Review

The Copyright Royalty Tribunal

Reform Act of 1993 created a unique

system of review of a CARP’s

determination. Typically, an arbitrator’s

decision is not reviewable, but the

Reform Act created two layers of review:

The Librarian of Congress, and the Court

of Appeals for the District of Columbia

Circuit. Section 802(f) of the Copyright

Act directs the Librarian to either accept

the decision of the CARP or reject it. If

the Librarian rejects it, he must

substitute his own determination ‘‘after

full examination of the record created in

the arbitration proceeding.’’ Id. If the

Librarian accepts it, then the

determination of the CARP has become

the determination of the Librarian. In

either case, through issuance of the

Librarian’s Order, it is his decision that

is subject to review by the Court of

Appeals.

Section 802(f) of the Copyright Act

directs that the Librarian shall adopt the

report of the CARP ‘‘unless the Librarian

finds that the determination is arbitrary

or contrary to the provisions of this

title.’’ Neither the Reform Act nor its

legislative history indicates what is

meant specifically by ‘‘arbitrary,’’ but

there is no reason to conclude that the

use of the term is any different from the

‘‘arbitrary’’ standard described in the

Administrative Procedure Act, 5 U.S.C.

706(2)(A).

Review of the case law applying the

APA ‘‘arbitrary’’ standard reveals six

factors or circumstances under which a

court is likely to find that an agency

acted arbitrarily. An agency is generally

considered to be arbitrary when it:

(1) Relies on factors that Congress did not

intend it to consider;

(2) fails to consider entirely an important

aspect of the problem that it was solving;

(3) Offers an explanation for its decision

that runs counter to the evidence presented

before it;

(4) Issues a decision that is so implausible

that it cannot be explained as a product of

agency expertise or a difference of viewpoint;

(5) Fails to examine the data and articulate

a satisfactory explanation for its action

including a rational connection between the

facts found and the choice made; or

(6) When the agency’s action entails the

unexplained discrimination or disparate

treatment of similarly situated parties.

Motor Vehicle Manufacturers

Association v. State Farm Mutual

Insurance Co., 463 U.S. 29 (1983);

Celcom Communications Corp. v. FCC,

789 F.2d 67 (D.C. Cir. 1986); Airmark

Corp. v. FAA, 758 F.2d 685 (D.C. Cir.

1985).

Given these guidelines for

determining when a decision is

‘‘arbitrary,’’ prior decisions of the Court

of Appeals for the District of Columbia

Circuit reviewing the determinations of

the former Copyright Royalty Tribunal

(Tribunal) have been consulted. The

decisions of the Tribunal were reviewed

under the ‘‘arbitrary and capricious’’

standard of 5 U.S.C. 706(2)(A) which, as

noted above, appears to be applicable to

the Librarian’s review of the CARP’s

decision.

Review of judicial decisions regarding

Tribunal actions reveals a consistent

theme: while the Tribunal was granted

a relatively wide ‘‘zone of

reasonableness,’’ it was required to

articulate clearly the rationale for its

decision. See National Association of

Broadcasters v. CRT, 772 F.2d 922 (D.C.

Cir. 1985); Christian Broadcasting

Network v. CRT, 720 F.2d 1295 (D.C.

Cir. 1983); National Cable Television

Association v. CRT, 689 F.2d 1077 (D.C.

Cir. 1982); Recording Industry

Association of America v. CRT, 662 F.2d

1 (D.C. Cir. 1981). As one panel of the

D.C. Circuit succinctly noted:

We wish to emphasize * * * that precisely

because of the technical and discretionary

nature of the Tribunal’s work, we must
6560 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Notices

4Mr. Fine is the Chief Executive Officer of

SoundScan, Inc. Witness Affidavit, Settling Parties’

Direct Case.

5Ms. Smith is Vice President of Performing Rights

of Broadcast Music, Inc. Witness Affidavit, Settling

Parties’ Direct Case.

especially insist that it weigh all the relevant

considerations and that it set out its

conclusions in a form that permits us to

determine whether it has exercised its

responsibilities lawfully * * *.

Christian Broadcasting Network, Inc. v.

CRT, 720 F.2d 1295, 1319 (D.C. Cir.

1983), quoting National Cable

Television Association v. CRT, 689 F.2d

1077, 1091 (D.C. Cir. 1982).

Because the Librarian is reviewing the

CARP decision under the same

‘‘arbitrary’’ standard used by the courts

to review the Tribunal’s decisions, he

must be presented by the CARP with a

detailed rational analysis of its decision,

setting forth specific findings of fact and

conclusions of law. This requirement of

every CARP report is confirmed by the

legislative history to the Reform Act

which notes that a ‘‘clear report setting

forth the panel’s reasoning and findings

will greatly assist the Librarian of

Congress.’’ H.R. Rep. No. 286, 103d

Cong., 1st Sess. 13 (1993). Thus, to

engage in reasoned decisionmaking, the

CARP must ‘‘weigh all the relevant

considerations and * * * set out its

conclusions in a form that permits [a

determination of] whether it has

exercised its responsibilities lawfully.’’

National Cable Television Association v.

CRT, 689 F.2d 1077, 1091 (D.C. Cir.

1982). This goal cannot be reached by

‘‘attempt[ing] to distinguish apparently

inconsistent awards with simple,

undifferentiated allusions to a 10,000

page record.’’ Christian Broadcasting

Network, Inc. v. CRT, 720 F.2d 1295,

1319 (D.C. Cir. 1983).

It is the task of the Register of

Copyrights to review the CARP report

and make her recommendation to the

Librarian as to whether the report is

arbitrary or contrary to the provisions of

the Copyright Act and, if so, whether,

and in what manner, the Librarian

should substitute his own

determination.

Petitions To Set Aside the Panel’s

Determination

On January 2, 1997, and on January 3,

1997, the two pro se parties filed their

petitions with the Librarian to modify

and/or set aside the decision of the

CARP, along with motions requesting

leave to file the petitions late. See 37

CFR 251.55(a). The Office accepted the

late filings and issued an order

requesting that any replies to the

petitions be filed with the Office no

later than January 17, 1997. Order,

Docket No. 95–1 CARP DD 92–94

(January 3, 1997). The purpose of the

petitions to modify or set aside the

Panel’s determination is to identify

aspects of the Panel’s report which are

arbitrary with respect to record evidence

or contrary to the applicable statutory

provisions.

In her petition, Ms. Alicia Evelyn

enumerated an array of reasons to set

aside the determination of the CARP in

this proceeding, stating that ‘‘[t]he

panel, in its report, failed to address

matters in controversy * * *.’’ Petition

to Set Aside the Determination of the

Copyright Arbitration Royalty Panel in

the Above-Referenced Matter Submitted

by Alicia Carolyn Evelyn, Individual,

Pro Se, Claimant (Evelyn Petition) at 2.

The purported controversies which the

CARP failed to address include: (1)

Failure on the part of the Settling Parties

to identify their DART eligible

associates and members and at least one

DART eligible title for the 1992–94

period, Id. at 2; (2) failure on the part

of the Settling Parties to provide data to

individual claimants pertaining to their

DART eligible songs, including, but not

limited to the songs ‘‘I’m Counting on

You’’ and ‘‘I Thank You,’’ Id. at 3; (3)

selection of SoundScan to determine the

extent of record sales rather than use of

performance data, Id. at 7; (4) use by Mr.

Michael Fine 4, expert witness for the

Settling Parties, of an incomplete list of

DART eligible songs when evaluating

SoundScan data for record sales of Ms.

Evelyn, Id. at 7; (5) unexplained use of

total record sales, as reported by

SoundScan, for 1992, rather than record

sales for the relevant period, October 28,

1992—December 31, 1992, and

concomitant use of total record sales for

the claimant during this same period,

Id. at 7–8; (6) failure to include record

club sales and/or computer sales in the

calculations for total record sales, Id. at

8; and (7) failure on the part of certain

Settling Parties to fulfill their fiduciary

obligations toward their members. Id. at

9–10.

Whereas Ms. Evelyn’s petition stated

her concerns with certain particularity,

Mr. Curry’s petition to set aside the

panel’s determination rests primarily on

a fundamental assertion that the Settling

Parties never proved their case. Petition

to Set Aside the Determination of the

Arbitration Royalty Panel, submitted by

Eugene Curry (Curry Petition), at 1. Mr.

Curry argues that he had to submit

specific titles of his works and

documentation of record sales whereas

the Settling Parties produced no hard

numbers for the record sales of any

claimant represented by the Settling

Parties. Id. at 2,3,4. Curry further argues

that it was error for Ms. Smith 5 to

supply Mr. Fine with authorship data

and not present any data on the number

of disseminations of his works through

transmissions, i.e. radio play, id. at 2,

implying that the Panel failed to

properly apply the statutory criteria for

making its determination. Additionally,

Mr. Curry submits that he supplied the

Settling Parties with documentation of

record club sales in support of his

argument that SoundScan was not the

only source of record sales data, nor the

best source, but this information was

not utilized in the final report to adjust

the sales figures. Id. at 4.

In reply, the Settling Parties request

that the Librarian deny Ms. Evelyn’s and

Mr. Curry’s petitions on both procedural

and substantive grounds. The Settling

Parties contend that the Panel’s report

was not arbitrary or contrary to the law,

when analyzed under the applicable

standard of review, and therefore,

should be adopted as filed by the

Librarian. Furthermore, the Settling

Parties oppose the Evelyn and Curry

petitions because each petition failed to

reference applicable sections of the

party’s proposed findings of fact and

conclusions of law. See 37 CFR

251.55(a).

Sufficiency of Ms. Evelyn’s and Mr.

Curry’s Petitions To Modify

Before the Register can address the

issues raised by Ms. Evelyn’s and Mr.

Curry’s petitions to modify the

determination of the Panel, the Register

must first address the contention raised

by the Settling Parties that the petitions

must be dismissed for failure to comply

with section 251.55(a) of the CARP

rules. That section provides that each

petition must ‘‘state the reasons for

modification or reversal of the panel’s

determination, and shall include

applicable sections of the party’s

proposed findings of fact and

conclusions of law.’’ 37 CFR 251.55(a).

Review of Ms. Evelyn’s and Mr.

Curry’s petitions reveals that neither

comply with the second part of the rule

which requires identification of

applicable portions of a petitioner’s

proposed findings of fact and

conclusions of law. The purpose of this

requirement is to enable the Register,

and the Librarian, to locate those

portions of the testimony that support

each party’s petition. However, absent a

showing of bad faith, the remedy for

failure to comply with the requirement

is not dismissal of a party’s petition to

modify. Rather, the remedy is for the

Register to direct the offending party to

amend his or her petition to include

identification of the applicable portions

of their proposed findings of fact and

conclusions of law. This approach,
Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Notices 6561

6The Panel found that while the Settling Parties

and Mr. Curry did not present any evidence of

performances, the evidence presented by Ms.

Evelyn as to performances of her works was not

competent. Report, paras. 46–47. After reviewing

the record, the Register concludes that this

determination by the Panel was not arbitrary.

7 In his capacity as sole representative of Tajai

Music, Inc., Mr. Curry filed claims to the 1992,

1993, and 1994 Publishers Subfunds.

however, is not necessary in this

proceeding because the record is

relatively small. Therefore, Ms. Evelyn’s

and Mr. Curry’s petitions to modify

were accepted.

Review of the CARP Report

In reviewing the determination of a

CARP, the Register is required to

confine her consideration to the record

of the proceeding. 17 U.S.C. 802(f). The

record in this proceeding consists solely

of the written direct cases of the Settling

Parties, Ms. Evelyn, and Mr. Curry.

Consequently, despite the protestations

of Ms. Evelyn and Mr. Curry, the

Register will not address issues raised in

their petitions to modify which go

beyond the evidence presented in the

written direct cases.

The Register’s review is in three parts:

(1) An analysis of the statutory criteria

to be used in the current proceeding; (2)

an analysis of the methodology adopted

by the Panel to implement the statutory

criteria; and (3) an analysis of the

application of the adopted methodology

to the record evidence.

1. Statutory criteria. The Audio Home

Recording Act of 1992 clearly delineates

the statutory criteria to be considered

when making a distribution of DART

royalties. Specifically, a CARP may only

consider ‘‘the extent to which, during

the relevant period * * * each musical

work was distributed in the form of

digital musical recordings or analog

musical recordings or disseminated to

the public in transmissions.’’ 17 U.S.C.

1006(c)(2). While a CARP is limited to

these two statutory criteria in

determining a DART royalty

distribution, the statute does not require

the application of both criteria. Thus, in

circumstances where the parties to a

DART distribution have presented

evidence as to only one of the criteria,

there is no requirement that a CARP

request evidence as to the second

criteria as well.

In this proceeding, the parties

presented credible evidence only as to

the distribution criteria (record sales).6

The Register concludes that the Panel

acted properly in basing its

determination solely on the evidence of

record sales, and was not required to

take record evidence as to the

dissemination of musical works in

transmissions when no such evidence

was submitted by the parties. Further,

the Register determines that the Panel

acted properly by refusing to consider

evidence presented by Ms. Evelyn and

Mr. Curry that was not relevant to the

section 1006(c)(2) criteria. See, CARP

Report, para. 52.

2. Methodology. The Settling Parties

presented the only systematic method

for determining the distribution of the

royalties in the Musical Works Funds.

The formula divided the total song title

sales credited to a claimant during a

particular year by the total song titles

sold during the same year. This

calculation determines the claimant’s

proportionate share of the royalties for

that period of time. The Panel found

this formulation acceptable for making

its determination because it allows each

claimant to receive credit for actual

sales during the relevant period. CARP

Report, para. 54. Additionally, the Panel

noted that Ms. Evelyn and Mr. Curry

failed to propose any alternative

systematic method or formula for

calculating a claimant’s share of the

royalties. CARP Report, paras. 40 and

48.

Although neither Ms. Evelyn nor Mr.

Curry challenge the Settling Parties’

formula for determining each claimant’s

share of the royalties, Mr. Curry does

challenge application of the formula

solely to himself and Ms. Evelyn,—that

is, not the Settling Parties. The Register

concludes that the Panel did not act

arbitrarily by using the formula to

determine Mr. Curry’s and Ms. Evelyn’s

proportionate share of the royalties from

actual sales data. First, the Panel found

that the Settling Parties represent all

claims except those of Mr. Curry and

Ms. Evelyn. CARP Report, paras. 36 and

37. Second, based on this finding and

application of the simple mathematical

concept that the sum of the parts must

equal the whole, the Panel accepted the

presentation of evidence for the two

individual claimants’ share of the

royalties and deducted this sum from

100% to determine the Settling Parties’

share of the royalties. CARP Report,

para. 69. Such an approach is logical

and consistent and was fully within the

discretion of the Panel.

Ms. Evelyn raises a second challenge

to the methodology utilized by the

Panel. Specifically, she challenges the

fact that the Panel considered the total

sales figures for 1992, rather than only

those sales which occurred during the

time period that the Audio Home

Recording Act was in effect (October 28,

1992 to December 31, 1992). The

Register determines that this challenge

is not fatal to the Panel’s action. First,

Ms. Evelyn did not file a claim to DART

royalties for 1992, and her distribution

is not affected by the Panel’s

determination for 1992. Second, there is

no evidence in the record that suggests

that the Panel could have ascertained

the universe of record sales, and the

sales of Mr. Curry, for the period from

October 28, 1992, through December 31,

1992. Nevertheless, the Panel

determined Mr. Curry’s percentage

claim from the annual sales data under

an apparent assumption that record

sales occurred at the same rate

throughout 1992. A careful review of the

record reveals no evidence suggesting

that the rate of record sales during the

effective period of the Audio Home

Recording Act was statistically different

from the rate of sales throughout the

remainder of the calendar year.

Consequently, the Register finds the

Panel’s use of the annual sales figures

not arbitrary, although evidence of

record sales from this period would

have provided the ideal precision for

application of the formula. See,

National Association of Broadcasters v.

Copyright Royalty Tribunal, 675 F.2d

367, 379 n.10 (D.C. Cir. 1982)

(Tribunal’s findings acceptable ‘‘though

of less than ideal clarity,’’ so long as

‘‘the path which the agency follows can

reasonably be discerned.’’).

3. Application of Methodology to

Record Evidence. The Register finds that

the Panel did act arbitrarily in

determining Mr. Curry’s 7 share of the

1992, 1993, and 1994 Publishers

Subfunds. The Panel erred by

determining that Mr. Curry, as writer,

and Mr. Curry, as publisher, were to

receive the same award.

In determining Mr. Curry’s record

sales for the Writers Subfunds, the Panel

prorated his sales based on his

percentage contribution as author to

each musical work. For example, the

Panel accorded Mr. Curry credit for onehalf, 50%, of the total record sales for

the musical work ‘‘Burnin’’ because he

was the co-author of the work. CARP

Report, para. 34. While this approach is

appropriate in determining Mr. Curry’s

share of the Writers Subfunds, it is

contrary to the evidence in determining

his share of the Publishers Subfunds.

There is no evidence in the record

which demonstrates that Mr. Curry was

entitled to anything less than a one

hundred percent publishing interest

from the sales of the musical works

credited to him by the Panel for the

Publishers Subfunds. The Register is,

therefore, recommending that Mr.

Curry’s award for the 1992–1994

Publishers Subfunds be adjusted to

reflect a one hundred percent
6562 Federal Register / Vol. 62, No. 29 / Wednesday, February 12, 1997 / Notices

publishing interest for Mr. Curry as sole

representative of Tajai.

One final point raised by Mr. Curry

and Ms. Evelyn concerns the use of

SoundScan as the definitive source of

record sales data. The Report, however,

clearly indicates that the Panel did

consider evidence submitted by Mr.

Curry regarding sales through record

companies, and that after due

consideration, the Panel rejected the

evidence because he failed to provide

the universe of record sales for these

companies during the relevant time.

CARP Report, para. 40. The Panel’s

decision to reject the record sales data

submitted by Mr. Curry and rely upon

the SoundScan data was not arbitrary.

Similarly, Ms. Evelyn’s contention

that the Settling Parties failed to provide

additional data concerning additional

DART eligible songs is without merit.

The Panel carefully analyzed her direct

case and found no credible evidence of

sales or performances in the U.S. during

the relevant period, CARP Report, paras.

41–48; the Panel did credit her with

sales of musical works introduced by

the Settling Parties. CARP Report, para.

35. Furthermore, the Register notes that

the evidence presented by the Settling

Parties, and adopted by the Panel, for

record sales of Ms. Evelyn and Mr.

Curry credit them both with greater

sales than the evidence they presented

in their written direct cases, thereby

increasing the size of their respective

awards. CARP Report, para. 62 and 64.

As discussed earlier in this Order, the

Librarian’s scope of review is very

narrow. The limited scope certainly

does not extend to reconsideration of

the relative weight to be accorded

particular evidence, and the Librarian

cannot second guess a CARP’s balance

and consideration of the evidence,

unless it runs counter to the evidence

presented to it. Motor Vehicle

Manufacturers Association v. State

Farm Mutual Auto Insurance Co., 463

U.S. 29, 43 (1983).

Conclusion

For the above stated reasons, the

Register recommends that the following

should be the percentages for the

distribution of the royalties in the 1992,

1993, and 1994 Musical Works Funds:

1992 1993 1994

Writers Publishers Writers Publishers Writers Publishers

Curry ............................................. 00.007096 00.014745 00.001608 00.003802 00.003398 00.007066

Evelyn ........................................... NA NA 00.000084 NA 00.000082 NA

Settling Parties .............................. 99.992904 99.985255 99.998308 99.996198 99.99652 99.992934

Total ................................... 100.00 100.00 100.00 100.00 100.00 100.00

II. Order of the Librarian of Congress

Having duly considered the recommendation of the Register of Copyrights regarding the report of the Copyright

Arbitration Royalty Panel in the distribution of the 1992–1994 Musical Works Funds, the Librarian of Congress fully

endorses and adopts her recommendation to accept the Panel’s decision in part and reject it in part. For the reasons

stated in the Register’s recommendation, the Librarian is exercising his authority under 17 U.S.C. 802(f) and is issuing

an order setting the distribution of the royalties in the 1992–1994 Musical Works Funds.

Wherefore, it is ordered that the royalties in the 1992–1994 Musical Works Funds shall be distributed according

to the following percentages:

1992 1993 1994

Writers Publishers Writers Publishers Writers Publishers

Curry ............................................. 00.007096 00.014745 00.001608 00.003802 00.003398 00.007066

Evelyn ........................................... NA NA 00.000084 NA 00.000082 NA

Settling Parties .............................. 99.992904 99.985255 99.998308 99.996198 99.99652 99.992934

Total ................................... 100.00 100.00 100.00 100.00 100.00 100.00

As provided in 17 U.S.C. 802(g), the

period for appealing this Order to the

United States Court of Appeals for the

District of Columbia is 30 days from the

effective date of this Order.

Dated: February 3, 1997.

Marybeth Peters,

Register of Copyrights.

Approved by:

James H. Billington,

The Librarian of Congress.

[FR Doc. 97–3316 Filed 2–11–97; 8:45 am]

BILLING CODE 1410–33–P

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

[Notice (97–013)]

Government-Owned Inventions,

Available for Licensing

AGENCY: National Aeronautics and

Space Administration.

ACTION: Notice of availability of

inventions for licensing.

SUMMARY: The inventions listed below

are assigned to the National Aeronautics

and Space Administration, have been

filed in the United States Patent and

Trademark Office, and are available for

licensing.

Copies of patent applications cited are

available from the Office of Patent

Counsel, Goddard Space Flight Center.

Claims are deleted from the patent

applications to avoid premature

disclosure.

DATES: February 12, 1997.

FOR FURTHER INFORMATION CONTACT:

Guy M. Miller, Patent Counsel, Goddard

Space Flight Center, Mail Code 204,

Greenbelt, MD 20771; telephone (301)

286–7351.

NASA Case No. GSC–13,524–2: A

Dual Amplitude and Dual-Time-of

Flight Ultrasonic Imaging System;

NASA Case No. GSC–13,681–1: Low

Cost GPS Receiver;

NASA Case No. GSC–13,708–1:

Segmented Cold Cathode Display Panel;