E9-18462. Proceedings of the Copyright Royalty Board; Remand

AGENCY:

Copyright Royalty Board, Library of Congress.

ACTION:

Interim rule and request for comments.

SUMMARY:

The Copyright Royalty Board is issuing an interim regulation to amend its procedural regulations to include a provision governing remands of final determinations pursuant to the Copyright Act, which sets forth in significant detail the procedural structure to be followed by the Copyright Royalty Judges in making determinations to distribute royalty fees and establish royalty rates and terms under the various statutory licenses of the Copyright Act. The Judges have adopted regulations governing the conduct of these proceedings.

DATES:

Effective Date: August 4, 2009.

Comments are due no later than September 3, 2009.

ADDRESSES:

Comments may be sent electronically to [e-mail]. In the alternative, send an original, five copies, and an electronic copy on a CD either by mail or hand delivery. Please do not use multiple means of transmission. Comments may not be delivered by an overnight delivery service other than the U.S. Postal Service Express Mail. If by mail (including overnight delivery), comments must be addressed to: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977. If hand delivered by a private party, comments must be brought to the Copyright Office Public Information Office, Library of Congress, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000. If delivered by commercial courier, comments must be delivered between 8:30 a.m. and 4 p.m. to the Congressional Courier Acceptance Site located at 2nd and D Street, NE., Washington, DC, and the envelope must be addressed to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM-403, 101 Independence Avenue, SE., Washington, DC 20559-6000.

FOR FURTHER INFORMATION CONTACT:

Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney Advisor, by telephone at [phone] or e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Section 803 of the Copyright Act, 17 U.S.C., sets forth in significant detail the procedural structure to be followed by the Copyright Royalty Judges in making determinations to distribute royalty fees and establish royalty rates and terms under the various statutory licenses of the Copyright Act. Pursuant to the authority granted us in 17 U.S.C. 803(b)(6), the Judges have adopted regulations, set forth in Subchapter B, Chapter III of title 37 of the Code of Federal Regulations, governing the conduct of these proceedings. Every proceeding to distribute royalty fees or establish royalty rates and terms results in a final determination of the Judges that is reviewable by the United States Court of Appeals for the District of Columbia Circuit, 17 U.S.C. 803(d). The Court of Appeals may, inter alia, vacate a determination or portion thereof, and remand to the Judges for further action. Until today, the Judges did not have any procedural regulations in place for handling the disposition of a remand.

On July 7, 2009, and again on July 10, 2009, the Court of Appeals issued decisions reviewing the first two royalty rate proceedings conducted under the Copyright Royalty Judges system. See SoundExchange, Inc. v. Librarian of Congress, No. 08-1078, 2009 WL 1930180 (D.C. Cir. July 7, 2009); Intercollegiate Broadcast System, Inc. v. Copyright Royalty Board, No. 07-1123, 07-1168, 07-1172, 07-1174, 07-1177, 07-1178, 2009 WL 1978453 (D.C. Cir. July 10, 2009). Although the Court affirmed the determinations of the Judges in the main, each case remanded an issue for further consideration by the Judges. Lacking any regulations governing the procedures for disposing of remands, the adoption of today's interim regulation is necessary for these and any future cases.

The interim regulation provides that, within 45 days of the date of issuance of the mandate of a decision of the Court of Appeals remanding a determination of the Judges, the parties to the proceeding shall submit, in writing, their proposals setting forth the procedures and schedule to be followed in addressing the remand. The interim rule is purposely flexible to permit the Judges, and the parties, to address the particulars of each remand before the Judges in an effort to promote administrative efficiency and reduce costs.

Interested parties are encouraged to offer comments as to the interim regulation as well as propose any additional procedures or regulations necessary for the handling of remands.

List of Subjects in 37 CFR Part 351

• Administrative practice and procedure
• Copyright

Interim Regulation

For the reasons set forth in the preamble, the Copyright Royalty Judges are amending part 351 of 37 CFR as follows:

PART 351—PROCEEDINGS

1. The authority citation for part 351 is revised to read as follows:

Authority: 17 U.S.C. 803.

2. Part 351 is amended by adding § 351.15 to read as follows:

§ 351.15

Remand.

In the event of a remand from the United States Court of Appeals for the District of Columbia Circuit of a final determination of the Copyright Royalty Judges, the parties to the proceeding shall within 45 days from the issuance of the mandate from the Court of Appeals file with the Judges written proposals for the conduct and schedule of the resolution of the remand.

Dated: July 16, 2009.

James Scott Sledge,

U.S. Chief Copyright Royalty Judge.

James H. Billington,

The Librarian of Congress.