2011-11226. Section 302 Report

AGENCY:

Copyright Office, Library of Congress.

ACTION:

Announcement of public hearing.

SUMMARY:

In Section 302 of the Satellite Television Extension and Localism Act, Congress directed the Copyright Office (“Office”) to prepare a report addressing possible mechanisms, methods, and recommendations for phasing out the statutory licensing requirements set forth in Sections 111, 119, and 122 of the Copyright Act. The Office published a Notice of Inquiry (“NOI”) in the Federal Register, seeking comments on issues related to Section 302. 76 FR 11816 (March 3, 2011). The Office announces that it will hold a public hearing on the issues raised by the NOI on June 10, 2011.

DATES:

A public hearing regarding marketplace alternatives to statutory licensing schemes under Sections 111, 119, and 122 of the Copyright Act will be held on Friday, June 10, 2011. Notices of intention to testify must be received by the Office by 5 p.m. E.D.T. on Friday, May 27, 2011. Written testimony and written questions are due by noon E.D.T, on Wednesday, June 8, 2011.

ADDRESSES:

The hearing will be held in the Copyright Hearing Room, LM-408, Madison Building, The Library of Congress, 101 Independence Avenue, SE., Washington, DC 20540. All submissions shall be submitted electronically. A page pertaining to the hearing will be posted on the Copyright Office Web site at http://www.copyright.gov/​docs/​section302. Interested parties will be able to submit (1) notices of intent to participate in the hearing; (2) suggested questions for the Copyright Office to ask at the hearing; and (3) written testimony electronically. The Web site interface permits interested parties to complete a form specifying name and organization, as applicable, and to upload documents as attachments via a browser button. To meet accessibility standards, all submissions must be uploaded in either the Adobe Portable Document File (PDF) format that contains searchable, accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a scanned document). The name of the submitter and organization should appear on both the form and the face of all the submissions. All submissions will be posted publicly on the Copyright Office Web site exactly as they are received, along with names and organizations. Persons who are unable to make their submissions electronically should contact Ben Golant, Assistant General Counsel, at 202-707-9127.

FOR FURTHER INFORMATION CONTACT:

Ben Golant, Assistant General Counsel, and Tanya M. Sandros, Deputy General Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 20024. Telephone: [phone]. Telefax: [phone].

SUPPLEMENTARY INFORMATION:

I. Background

On May 27, 2010, the President signed the Satellite Television Extension and Localism Act of 2010. (“STELA”). See Public Law 111-175, 124 Stat. 1218 (2010). The legislation extended the term of the Section 119 license for another five years, updated the statutory license structures to account for changes resulting from the nationwide transition to digital television, and revised the Section 111 and Section 122 licenses in several other respects. In addition, STELA instructed the Copyright Office, the Government Accountability Office and the FCC to conduct studies and report findings to Congress on different structural and regulatory aspects of the broadcast signal carriage marketplace in the United States. Section 302 of STELA, entitled “Report on Market Based Alternatives to Statutory Licensing,” charges the Copyright Office with the following:

Not later than 18 months after the date of the enactment of this Act, and after consultation with the Federal Communications Commission, the Register of Copyrights shall submit to the appropriate Congressional committees a report containing:

(1) Proposed mechanisms, methods, and recommendations on how to implement a phase-out of the statutory licensing requirements set forth in sections 111, 119, and 122 of title 17, United States Code, by making such sections inapplicable to the secondary transmission of a performance or display of a work embodied in a primary transmission of a broadcast station that is authorized to license the same secondary transmission directly with respect to all of the performances and displays embodied in such primary transmission;

(2) any recommendations for alternative means to implement a timely and effective phase-out of the statutory licensing requirements set forth in sections 111, 119, and 122 of title 17, United States Code; and

(3) any recommendations for legislative or administrative actions as may be appropriate to achieve such a phase-out.

In response to these directives, the Office published a Notice of Inquiry in the Federal Register, 76 FR 11816 (March 3, 2011), seeking comments and information from the public on several issues that are central to the scope and operation of Section 302 and critical to the Office's analysis of the legal and business landscapes pertaining to video programming.

II. Notice of Public Hearing

The Office finds that public input on marketplace alternatives to the statutory licenses from interested parties is critical to a balanced and comprehensive report to Congress. Consequently, the Office has determined that a process involving both written comments and an open hearing is needed to gather the necessary information. The Office is therefore announcing the scheduling of a public hearing on the issues raised in the Section 302 NOI to complement the comments and reply comments submitted in this proceeding.

The Office will conduct its hearing with interested parties in the Copyright Office Hearing Room, LM-408, at the Madison Building of the Library of Congress on June 10, 2011. The format for these hearings will resemble the traditional Congressional hearing model in that there will be panels of witnesses presenting testimony to a panel of Copyright Office staff. Each participant will have a limited time to present his or her testimony. The Office will determine time limits for the witnesses once it receives all requests to testify. After the oral statements, the Office staff will ask questions of the various persons who testify, and interested parties may submit written questions to the Office by June 8, 2011, which may be addressed to specific witnesses or the witnesses as a whole, at the discretion of the Office.

The public hearings are open to the general public. However, in order to testify, interested persons must inform the Office of their intention to testify no later than the close of business on May 27, 2011. Notification of intention to testify must be in written form and include the following information for each participant: Name, organization, title, postal mailing address, telephone, telefax, an e-mail address, and indicate if there is a need for audiovisual equipment to make a presentation. Notices of intention may be filed electronically according to the instructions noted above. Notifications received after the May 27, 2011 deadline will not be accepted, and such person or persons will not be allowed to testify.

Following receipt of the requests to testify, the Copyright Office will prepare an agenda of the hearing which will be posted on the Copyright Office Web site at: http://www.copyright.gov/​docs/​section302/​ and will also be sent to all persons who have submitted requests to testify.

The public hearing will begin at 9:30 a.m. and will continue until 5 p.m., unless otherwise directed. The Office will notify each witness who has filed a timely notice of intention to testify of the time he/she is expected to appear and offer testimony. The Office will also notify each witness of the other witnesses who will appear on his/her panel and post a list of the panels and witnesses on the Web site.

Transcription services of the public hearings will be provided by the Office. Those parties interested in obtaining transcripts of the hearings will need to purchase them from the transcription service.

Testimony. All persons who notify the Office of their intention to testify may submit a copy of their testimony by the June 8, 2011, deadline. In addition, and as noted above, interested parties may also submit by noon on June 8, 2011, suggested written questions, for possible use by panel members of the Copyright Office during the course of the hearings. Because of time limitations, the Office requests parties submitting testimony to file their statements to the Office electronically following the instructions noted above for submissions on or before the deadline.

Scope of the Proceeding. The Copyright Office stresses that factual arguments are at least as important as legal arguments and encourages persons who wish to testify to provide demonstrative evidence to supplement their testimony. While testimony from attorneys who can articulate legal arguments in support of particular for marketplace alternatives is useful, testimony from witnesses who can provide an economic analysis of the issues at hand is strongly encouraged. The Office also stresses that the Congressional mandate for this study is to come up with “[p]roposed mechanisms, methods, and recommendations on how to implement a phase-out of the statutory requirements” of sections 111, 119, and 122 (emphasis added), and not to recommend whether to phase out the existing statutory licenses.

III. Summary

The Office announces a formal hearing to be held on June 10, 2011, with relevant filing dates and instructions noted above.

Dated: May 4, 2011.

Maria A. Pallante,

Acting Register of Copyrights.