00-31459. Digital Performance Right in Sound Recordings and Ephemeral Recordings

AGENCY:

Copyright Office, Library of Congress.

ACTION:

Notices of intent to participate; Announcement of precontroversy discovery schedule.

SUMMARY:

Due to the ruling by the Copyright Office that broadcasters are not exempt from copyright liability when they retransmit over the Internet copyrighted works contained on their AM and FM radio signals, the Library of Congress is providing an additional time period for filing Notices of Intent to Participate in the above-captioned consolidated proceedings. In addition, the Library is announcing the precontroversy discovery schedule for these consolidated proceedings.

DATES:

Notices of Intent to Participate are due no later than January 10, 2001.

ADDRESSES:

An original and five copies of a Notice of Intent to Participate should be delivered to: Office of the General Counsel, Copyright Office, James Madison Building, Room LM-403, First and Independence Avenue, SE, Washington, DC 20559-6000; or mailed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel, or Tanya M. Sandros, Senior Attorney, Copyright Arbitration Royalty Panel, P.O. Box 70977, Southwest Station, Washington, DC 20024. Telephone [phone]. Telefax [phone].

SUPPLEMENTARY INFORMATION:

In today's Federal Register the Copyright Office announces a final rule in Docket No. RM 2000-3 concerning the definition of a “Service” for purposes of the statutory license governing the public performance of sound recordings by means of digital audio transmissions. The Office has determined that broadcasters retransmitting copyrighted programming contained on their AM and FM radio signals over digital communications networks, such as the Internet, are not exempt from copyright liability under section 114(d)(1)(A) of the Copyright Act. Because such retransmissions are not exempt, a public performance of a copyrighted work contained on a radio signal occurs each time it is retransmitted over a digital communications network, such as the Internet. Consequently, broadcasters must license the copyrights to the programming contained on such radio signals.

Licensing may be accomplished in one of two ways, depending upon the nature of the retransmissions. Broadcasters may enter into private licensing arrangements with the copyright holders of the programming they wish to retransmit. Or, broadcasters may be eligible for the statutory licenses under sections 114(f) and 112(e) of the Copyright Act to retransmit the works. The Library of Congress is currently conducting Copyright Arbitration Royalty Panel (CARP) proceedings to establish royalty rates and terms for these licenses.

Because today's rulemaking proceeding makes clear that broadcasters are not exempt, those broadcasters who intend to use the section 114(f) and 112(e) licenses may wish to participate in these CARP proceedings. The time periods for filing Notices of Intent to Participate in this proceeding, however, has passed. See 64 FR 52107 (September 27, 1999) (1998-2000 period) and 65 FR 55302 (September 13, 2000) (2001-2002 period). The Library has determined that, given the uncertainty surrounding today's rulemaking decision, it is appropriate to reopen the filing period for a limited time to allow additional participants in these proceedings.

Notices of Intent To Participate

Any interested party that has not filed a Notice of Intent to Participate in the rate proceeding for 1998-2000 or the rate proceeding for 2001-2002 may do so on or before January 10, 2001. The Notice of Intent to Participate should clearly specify whether it applies to the 1998-2000 proceeding, the 2001-2002 proceeding, or both. Failure to submit a timely filed Notice will preclude a party from participating in these proceedings.

Consolidation of Proceedings

Concurrent with today's Federal Register publication, the Library is issuing an Order consolidating the 1998-2000 and 2001-2002 proceedings before a single CARP. The consolidation order may be found on the Copyright Office's website at http://www.loc.gov/​copyright/​carp/​114schedule.html. Parties wishing to participate in the CARP proceedings should familiarize themselves with the contents of this Order.

In consolidating these two proceedings, the Office has assigned a single docket number applicable to both proceedings. Parties submitting documents to the Copyright Office should take account of the new docket number.

Schedule of Proceedings

The consolidation Order described above also announces the precontroversy discovery schedule for the CARP proceedings. For convenience, the schedule is repeated here.

Action	Date
Negotiated Protective Order	February 1, 2001.
Filing of Written Direct Cases	February 5, 2001.
Requests for Underlying Documents	February 14, 2000.
Related to Written Direct Cases
Responses to Requests for Underlying Documents	February 21, 2001.
Completion of Document Production	February 26, 2001.
Follow-up Requests for Underlying Documents	March 2, 2001.
Responses to Follow-up Requests	March 8, 2001.
Motions Related to Document Production	March 12, 2001.
Production of Documents in Response to Follow-up Requests	March 16, 2001.
All Other Motions, Petitions and Objections	March 21, 2001.
Initiation of Arbitration	May 21, 2001.

Dated: December 6, 2000.

David O. Carson,

General Counsel.