[Federal Register Volume 63, Number 126 (Wednesday, July 1, 1998)]
[Notices]
[Page 35984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17478]



[[Page 35984]]

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LIBRARY OF CONGRESS

Copyright Office
[Docket No. 96-4 CARP DPRA]


Digital Phonorecord Delivery Rate Adjustment Proceeding

AGENCY: Copyright Office, Library of Congress.

ACTION: Notices of intent to participate.

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SUMMARY: The Library of Congress is requesting that those parties 
interested in participating in a Copyright Arbitration Royalty Panel 
(``CARP'') proceeding for establishing rates and terms for digital 
phonorecord deliveries file a Notice of Intent to Participate. Those 
parties who have already filed such a notice need not file again.

DATES: Notices of Intent to Participate are due July 31, 1998.

ADDRESSES: Notices of Intent to Participate, when sent by mail, 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, Copyright Office, 
James Madison Memorial Building, Room LM-407, First and Independence 
Avenues, SE, Washington, DC.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
William Roberts, Senior Attorney for Compulsory Licenses, Copyright 
Arbitration Royalty Panels, P.O. Box 70977, Southwest Station, 
Washington, DC 20024. Telephone: (202) 707-8380. Facsimile: (202) 707-
8366.

SUPPLEMENTARY INFORMATION:

Background

    On November 1, 1995, Congress passed the Digital Performance Right 
in Sound Recordings Act of 1995 (``Digital Performance Act''). Public 
Law 104-39, 109 Stat. 336. Among other things, it confirms and 
clarifies that the scope of the compulsory license to make and 
distribute phonorecords of nondramatic musical compositions includes 
the right to distribute or authorize distribution by means of a digital 
transmission which constitutes a ``digital phonorecord delivery.'' 17 
U.S.C. 115(c)(3)(A). A ``digital phonorecord delivery'' is defined as 
each individual delivery of a phonorecord by digital transmission of a 
sound recording which results in a specifically identifiable 
reproduction by or for any transmission recipient. * * '' 17 U.S.C. 
115(d).
    The Digital Performance Act established that the rate for all 
digital phonorecord deliveries made or authorized under a compulsory 
license on or before December 31, 1997, is the same rate in effect for 
the making and distribution of physical phonorecords. 17 U.S.C. 
115(c)(3)(A)(i). For digital phonorecord deliveries made or authorized 
after December 31, 1997, the Digital Performance Act established a 
process that may take two-steps for determining the terms and rates. 17 
U.S.C. 115(c)(3)(A)(ii). The first step in the process is a voluntary 
negotiation period initiated by the Librarian of Congress to enable 
copyright owners and users of the section 115 digital phonorecord 
delivery license to negotiate the terms and rates of the license. The 
Librarian initiated this period on July 17, 1996, and directed it to 
end on December 31, 1996. 61 FR 37213 (July 17, 1996).
    The second step of the process is the convening of a CARP to 
determine reasonable terms and rates for digital phonorecord deliveries 
for parties not subject to a negotiated agreement. In the July 17, 
1996, Federal Register notice, the Library stated that CARP proceedings 
would begin, in accordance with the rules of 37 CFR part 251, on 
January 31, 1997. 61 FR 37214 (July 17, 1996). The Library also 
directed those parties not subject to a negotiated agreement to file 
their petitions to convene a CARP, as required by 17 U.S.C. 
115(c)(3)(D), by January 10, 1997, and their Notices of Intent to 
Participate in CARP proceedings by January 17, 1997. Id. In addition, 
the Library directed interested parties to comment by November 8, 1996, 
on the possibility of consolidating the CARP proceeding to determine 
terms and rates for digital phonorecord deliveries with the proceeding 
to adjust the mechanical royalty rate for the making and distributing 
of physical phonorecords. 61 FR 37215 (July 17, 1996).
    On November 8, 1996, the Library received a joint motion from the 
Recording Industry Association of America (``RIAA''), the National 
Music Publishers' Association, Inc. (``NMPA''), and The Harry Fox 
Agency, Inc. (``Harry Fox'') to vacate the scheduled dates appearing in 
the July 17, 1996, Federal Register notice for convening a CARP. The 
Library vacated the schedule on December 11, 1996, and established a 
new precontroversy discovery schedule and date for the filing of 
Notices of Intent to Participate. 61 FR 65243 (December 11, 1996).
    After publication of the new schedule, representatives of the RIAA, 
NMPA and Harry Fox informed the Library that terms and rates for 
digital phonorecord deliveries could be negotiated through voluntary 
agreement, and requested that the Library vacate the new schedule to 
allow sufficient time for such negotiations. The Library vacated the 
new schedule on February 3, 1997. 62 FR 5057 (February 3, 1997). The 
parties did reach a voluntary agreement and, pursuant to the rules, the 
Library published the proposed rates and terms for digital phonorecord 
deliveries for public comment. 62 FR 63506 (December 1, 1997). In that 
notice of proposed rulemaking, the Library specified that any party 
that objected to the proposed rates and terms was required to file a 
Notice of Intent to Participate and was expected to fully participate 
in a CARP proceeding. 62 FR 63507 (December 1, 1997). However, the 
Library did not call for the filing of Notices of Intent to Participate 
by parties other than those who objected to the proposed rates and 
terms.
    Two parties, the United States Telephone Association (``USTA'') and 
the Coalition of Internet Webcasters (``Webcasters''), opposed the 
proposed terms and rates and filed Notices of Intent to Participate. A 
third party, Broadcast Music, Inc. (``BMI''), also filed a Notice of 
Intent to Participate in the event that a CARP takes place. BMI's 
interest is the relationship between digital phonorecord deliveries and 
the public performance right.

Notices of Intent To Participate

    The parties in this proceeding continue to negotiate in an effort 
to reach agreement as to the terms and rates for digital phonorecord 
deliveries. In the event that a CARP becomes necessary, participating 
parties must be identified. Because earlier deadlines for the filing of 
Notices of Intent to Participate were vacated at the parties' request, 
Notices have yet to be filed in this proceeding, save those filed by 
USTA, Webcasters and BMI. Consequently, the Library is instructing 
those parties (other than USTA, Webcasters and BMI) who wish to 
participate in a CARP proceeding to establish rates and terms for 
digital phonorecord deliveries to file a Notice of Intent to 
Participate by July 31, 1998.

    Dated: June 24, 1998.
David O. Carson,
General Counsel.
[FR Doc. 98-17478 Filed 6-30-98; 8:45 am]
BILLING CODE 1410-33-U