[Federal Register Volume 61, Number 93 (Monday, May 13, 1996)]
[Proposed Rules]
[Pages 22003-22004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11926]



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LIBRARY OF CONGRESS

Copyright Office

37 CFR Chapter II

[Docket No. RM 96-3]


Notice and Recordkeeping for Subscription Digital Transmissions

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Copyright Office of the Library of Congress is requesting 
comments on the requirements by which copyright owners shall receive 
reasonable notice of the use of their works from subscription digital 
transmission services, and how records of such use shall be kept and 
made available to copyright owners. The regulations are required to be 
adopted by the Digital Performance Right in Sound Recordings Act of 
1995, and are intended to ensure proper payment to copyright owners.

DATES: Comments are due July 12, 1996. Reply comments are due August 
12, 1996.

ADDRESSES: An original and fifteen copies of the comments shall be 
delivered to: Office of General Counsel, The Copyright Office, LM-407, 
The Madison Building, 101 Independence Avenue SE., Washington, D.C., or 
mailed to: Marilyn J. Kretsinger, Acting General Counsel, Copyright GC/
I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 20024.

FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General 
Counsel, or William J. Roberts, Senior Attorney, Copyright GC/I&R, P.O. 
Box 70400, Southwest Station, Washington, D.C. 20024. Telephone: (202) 
707-8380. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Background

    On November 1, 1995, Congress enacted the Digital Performance Right 
in Sound Recordings Act of 1995. Pub. L. 104-39, 109 Stat. 337 (1995). 
Among other things, it created a new compulsory copyright license that 
is paid by nonexempt subscription digital transmission services to the 
copyright owners of sound recordings. 17 U.S.C. 114(f). Congress 
directed the Librarian of Congress to establish regulations by which 
the entities availing themselves of this new license would keep records 
of their use, make the records available to the copyright owners, and 
give notice to the copyright owners of the use of their works.

The Sec. 114 License for Nonexempt Subscription Digital Transmissions 
Services

    The Digital Performance Right in Sound Recordings Act gave to 
copyright owners of sound recordings an exclusive right to perform 
their works by means of a digital audio transmission. Certain digital 
transmissions were exempted from the scope of this right, 17 U.S.C. 
114(d)(1), while certain subscription digital transmission services 
were given the opportunity to qualify for a compulsory license. 17 
U.S.C. 114(d)(2).
    A nonexempt subscription digital transmission qualifies for a 
compulsory license if the transmission is not part of an interactive 
service, does not exceed the sound recording performance complement, 
does not give an advance program schedule or prior announcements of the 
titles to be performed, does not automatically cause the receiving 
device to switch automatically from one program channel to another, and 
includes, if the copyright owner wants it, encoded information that 
identifies the title, the featured artist, and related information. 17 
U.S.C. 114(d)(2).
    If a service offering subscription digital transmissions qualifies 
for the compulsory license, it has the choice of reaching a voluntary 
agreement with the owners of the sound recordings it wishes to use, or, 
failing that, it may petition the Librarian of Congress to convene a 
copyright arbitration royalty panel (CARP) to set the rates and terms 
of the compulsory license. 17 U.S.C. 114(f). The terms and rates set by 
a CARP will be applicable to all subscription digital transmission 
services not subject to a voluntary agreement. However, the above 
mentioned requirements for notice and recordkeeping are to be set by 
the Librarian, not the CARP. 17 U.S.C. 114(f)(2).
    On December 1, 1995, the Copyright Office and the Library of 
Congress initiated the six month period for negotiating the rates and 
terms for a compulsory license for subscription digital transmission 
services. 60 FR 61655 (Dec. 1, 1995). The period will run until June 1, 
1996, after which the parties have 60 days to petition the Librarian to 
convene a CARP to set the rates and terms for those entities who have 
not reached voluntary agreements.
    In the meantime, any person who wishes to perform a sound recording 
publicly by means of a nonexempt subscription transmission may do so 
without infringing the rights of the copyright owner of the sound 
recording by complying with the notice requirements set by the 
Librarian of Congress and agreeing to pay the royalty fees as they are 
determined. 17 U.S.C. 114(f)(5).
    This notice requirement, however, is an affirmative duty placed on 
the digital transmission subscription services to provide reasonable 
notice to the copyright owners of the use of their sound recordings. 17 
U.S.C. 114(f)(2). Therefore, it is important for the Copyright Office 
and the Library of Congress to begin this rulemaking to establish the 
notice and recordkeeping requirements so that persons wishing to abide 
by section 114(f)(5) may do so.
    Although we do not propose any specific regulatory language, 
commentators should consider both the adequacy of the notice to the 
copyright owners of the sound recordings and the administrative burdens 
placed on the digital transmission services in providing notice and 
maintaining records of use.

    Dated: May 3, 1996.

    Recommended by:
Marybeth Peters,
Register of Copyrights.

    Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 96-11926 Filed 5-10-96; 8:45 am]
BILLING CODE 1410-30-P