99-28509. Notice and Recordkeeping for Non-subscription Digital Transmissions  

  • [Federal Register Volume 64, Number 211 (Tuesday, November 2, 1999)]
    [Proposed Rules]
    [Pages 59140-59141]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-28509]
    
    
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    LIBRARY OF CONGRESS
    
    Copyright Office
    
    37 CFR Part 201
    
    [Docket No. RM 99-5B]
    
    
    Notice and Recordkeeping for Non-subscription Digital 
    Transmissions
    
    AGENCY: Copyright Office, Library of Congress.
    
    ACTION: Notice of Proposed Rulemaking.
    
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    SUMMARY: The Copyright Office proposes extending the date by which a 
    non-interactive, non-subscription service currently making digital 
    transmissions of sound recordings must file an initial notice of 
    digital transmission with the Copyright Office from October 15, 1999, 
    to December 1, 1999.
    
    DATES: Comments must be received by the Copyright Office on or before 
    November 17, 1999.
    
    ADDRESSES: An original and ten copies of the comments shall be hand 
    delivered to: Office of General Counsel, Copyright Office, LM-403, 
    James Madison Memorial Building, 101 Independence Avenue, SE, 
    Washington, DC 20559-6000, or mailed to: David O. Carson, General 
    Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, 
    Washington, DC 20024.
    
    FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
    Tanya M. Sandros, Attorney Advisor, Copyright GC/I&R, P.O. Box 70400, 
    Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. 
    Telefax: (202) 707-8366.
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        On October 28, 1998, the President signed into law the Digital 
    Millennium Copyright Act of 1998 (``DMCA''). Among other things, the 
    DMCA expanded the section 114 compulsory license to allow a nonexempt, 
    eligible non-subscription transmission service and a preexisting 
    satellite digital audio radio service to perform publicly a sound 
    recording by means of certain digital audio transmissions, subject to 
    compliance with notice and recordkeeping requirements. 17 U.S.C. 
    114(f).
        For purposes of promulgating regulations governing the notice and 
    recordkeeping requirements, the Office published a notice of proposed 
    rulemaking in August, 1999, seeking to amend 37 CFR 201.35(f)--the 
    interim regulation that requires the submission of an initial notice of 
    digital transmission. The proposed change required each non-
    subscription service to file an initial notice of digital transmission 
    prior to its first transmission, or in the case of those services 
    already making such transmissions, prior to October 15, 1999. 64 FR 
    42316 (August 4, 1999). On September 2, 1999, the Recording Industry of 
    America, Inc. (``RIAA'') filed the only comment to the proposed change 
    supporting, in general, the Office's proposal to amend the date by 
    which a nonexempt, eligible non-subscription service already in 
    operation could file a timely initial notice. Because there was no 
    opposition to the proposed interim rule change, the Office set October 
    15, 1999, as the date by which non-subscription services currently 
    making digital transmissions had to file its initial notice. 64 FR 
    50758 (September 20, 1999).
        On October 15, 1999, the National Association of Broadcasters 
    (``NAB'') filed a petition with the Copyright Office, seeking an 
    extension of the date for filing these initial notices until December 
    1, 1999. NAB makes this request because it believes that many 
    potentially affected parties were unaware of the need to file an 
    initial notice by the October 15, 1999, date, and consequently, missed 
    the filing deadline, thereby jeopardizing their opportunity to rely 
    upon the statutory license. NAB also suggests that the Office need not 
    have proceeded at such a swift pace to amend the notice requirements 
    when the rates and terms for the section 114 license have yet to be 
    set. However, NAB is not proposing any change to the published schedule 
    for the rate setting proceeding. See 64 FR 52107 (September 27, 1999).
        In a response to the NAB petition, RIAA raised no objection to 
    NAB's proposal to extend the date for filing initial notices from 
    October 15, 1999, to December 1, 1999, although it stated that it would 
    strongly oppose any extension beyond that date and any change to the 
    November 1, 1999, filing date for the Notices of Intent to Participate 
    in the rate setting proceeding. RIAA states that it needs the 
    information supplied by the initial notices and the Notices of Intent 
    to Participate in order to complete the industry-wide negotiations, the 
    aim of which is to set rates and terms for the section 112 and 114 
    statutory licenses. See 63 FR 65555 (November 27, 1998).
        NAB's reasons for requesting the extension are supported by the 
    facts. Since October 15, 1999, the Copyright Office has received 
    several hundred initial notices and expects additional filings to 
    continue. Thus, it appears that many of the potentially affected 
    parties were unaware of the rule change that set a date certain by 
    which services currently operating under the section 114 statutory 
    license had to file an initial notice of digital transmission of sound 
    recordings.
        In recognition of the apparent breakdown in the process to 
    disseminate the information regarding the filing requirement to those 
    parties most affected by the interim rule change, the Office is 
    proposing to amend its interim regulation in accordance with NAB's 
    suggestion and to adopt the proposed December 1, 1999, date as the 
    deadline for filing initial notices.
        In any event, the Office will accept all initial notices filed with 
    the Licensing Division of the Copyright Office. However, the Office 
    takes no position on the legal sufficiency of any filing made with the 
    Office that does not conform with the filing requirements announced in 
    37 CFR 201.35(f). A service should be aware that the date-specific 
    filing deadline for non-subscription services is significant only if it 
    has made a digital transmission under the statutory license prior to 
    that filing date. Any preexisting entity, just as any new entity which 
    chooses to make use of the license at a future time, may file its 
    initial notice after these dates, so long as it files its initial 
    notice with the Licensing Division prior to the first transmission of a 
    sound recording.
        For these reasons, and because the Office considers it likely that 
    there will be no substantive objections filed and that the Office will 
    promulgate a final rule extending the deadline to December 1, services 
    that have commenced making eligible non-subscription
    
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    transmissions and that have not yet filed initial notices are 
    encouraged to file their initial notices prior to promulgation of the 
    final rule and in no event later than December 1, 1999.
    
    Regulatory Flexibility Act
    
        Although the Copyright Office, located in the Library of Congress 
    which is part of the legislative branch, is not an ``agency'' subject 
    to the Regulatory Flexibility Act, 5 U.S.C. 601-612, the Register of 
    Copyrights considers the effect of a proposed amendment on small 
    businesses. For that reason, the Register is seeking to amend yet again 
    37 CFR 201.35(f) in order to allow small business entities that are 
    eligible for the statutory license to make a timely filing of its 
    initial notice of digital transmissions. The Register is seeking the 
    amendment at the request of the NAB, an organization that represents 
    the interests of numerous small broadcasters who were heretofore 
    unaware of the filing requirement, and with the expectation that the 
    NAB will make its members aware of the filing requirement and the 
    proposed new deadline.
    
    List of Subjects in 37 CFR Part 201
    
        Copyright.
    
    Proposed Regulation
    
        For the reasons set forth in the preamble, it is proposed that part 
    201 of title 37 of the Code of Federal Regulations be amended as 
    follows:
    
    PART 201--GENERAL PROVISIONS
    
        1. The authority citation for part 201 continues to read as 
    follows:
    
        Authority: 17 U.S.C. 702.
    
        2. Section 201.35(f) is amended by removing the date ``October 15'' 
    and inserting in its place ``December 1''.
    
        Dated: October 27, 1999.
    David O. Carson,
    General Counsel.
    [FR Doc. 99-28509 Filed 11-1-99; 8:45 am]
    BILLING CODE 1410-31-P
    
    
    

Document Information

Published:
11/02/1999
Department:
U.S. Copyright Office, Library of Congress
Entry Type:
Proposed Rule
Action:
Notice of Proposed Rulemaking.
Document Number:
99-28509
Dates:
Comments must be received by the Copyright Office on or before November 17, 1999.
Pages:
59140-59141 (2 pages)
Docket Numbers:
Docket No. RM 99-5B
PDF File:
99-28509.pdf
CFR: (1)
37 CFR 201