01-28995. Digital Performance Right in Sound Recordings Rate Adjustment Proceedings

AGENCY:

Copyright Office, Library of Congress.

ACTION:

Notice of inquiry and request for notices of intention to participate.

SUMMARY:

The Copyright Office of the Library of Congress is requesting comments as to whether the rate adjustment proceeding to determine reasonable rates and terms for the public performance of sound recordings by new subscription services should be consolidated with the rate adjustment proceeding to determine reasonable rates and terms for the public performance of sound recordings by pre-existing satellite digital audio radio services and pre-existing subscription services. The Office is also calling for submission of Notices of Intent to Participate from parties interested in participating in either or both proceedings.

DATES:

Comments and Notices of Intent to Participate are due no later than December 20, 2001. Reply comments are due no later than January 22, 2002.

ADDRESSES:

An original and five copies of comments, reply comments and Notices of Intent to Participate, if sent by mail, should be addressed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024. If hand delivered, they should be brought to: Office of the Copyright General Counsel, James Madison Memorial Building, Room LM-403, First and Independence Avenues, SE., Washington, DC 20559-6000.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Background

In 1995, Congress passed the Digital Performance Right in Sound Recordings Act, Public Law 104-39, which gave copyright owners of sound recordings an exclusive right to perform publicly their copyrighted works by means of a digital audio transmission, subject to certain limitations and exemptions. 17 U.S.C. 106(6). Among the limitations placed on the performance of a sound recording was the creation of a statutory license for performances made by nonexempt, non-interactive digital subscription services. 17 U.S.C. 114. Initial rates and terms for transmissions made by these services were determined by the Librarian of Congress after a proceeding before a Copyright Arbitration Royalty Panel (“CARP”) under chapter 8 of the Copyright Act. 63 FR 25394 (May 8, 1998).

Section 114 was amended with the passage of the Digital Millennium Copyright Act of 1998 (“DMCA”), Public Law 105-304, to create statutory licenses to cover additional digital audio transmissions. These include “eligible nonsubscription transmissions” and those transmissions made by “new subscription services” and “pre-existing satellite digital audio radio services.”

On January 9, 2001, the Copyright Office published a Federal Register notice initiating a voluntary six-month negotiation period to establish terms and rates for the statutory licenses covering “pre-existing satellite digital audio radio services,” and “pre-existing subscription services” (the three subscription services in existence prior to the passage of the DMCA). 66 FR 1700 (January 9, 2001). No agreements were reached. After the close of the negotiation period, the Office received petitions from the Recording Industry Association of America (“RIAA”), and jointly XM Satellite Radio, Inc. and Sirius Satellite Radio, Inc., requesting that the Librarian of Congress convene a CARP to establish terms and rates for the statutory license for pre-existing satellite digital audio radio services. Convocation of these proceedings is pending.

On February 12, 2001, the Copyright Office published a Federal Register notice initiating a voluntary six-month negotiation period to establish rates and terms for the statutory license covering new subscription services. 66 FR 9881 (February 12, 2001). No agreements were reached. After the close of the negotiation period, the Office received petitions from Music Choice and RIAA requesting that the Librarian of Congress convene a CARP to establish terms and rates for the statutory license covering new subscription services.

Request for Comments

In its petition to convene a CARP for new subscription services, Music Choice requests the Copyright Office to consolidate the proceeding for new subscription services (Docket No. 2001-2 CARP DTNSRA) with the proceeding for pre-existing satellite digital audio radio services and pre-existing subscription services (Docket No. 2001-1 CARP DSTRA2). Music Choice submits that “[g]ood cause exists to consolidate the two proceedings in the interest of fairness and efficiency.” Music Choice petition at 1.

The Library seeks comment as to the advisability of consolidating Docket No. 2001-2 CARP DTNSRA with Docket No. 2001-1 CARP DSTRA2. Can both dockets be handled efficiently and effectively by a single CARP? What are the advantages, if any, of convening separate CARPs for these two dockets?

Request for Notices of Intent To Participate

Section 251.45(a) of the rules, 37 CFR, requires that a Notice of Intention to Participate be filed in order to participate in a CARP proceeding, but it does not prescribe the contents of the Notice. Recently, in another proceeding, the Library has been forced to address the issue of what constitutes a sufficient Notice and to whom it is applicable. See 65 FR 54077 (September 6, 2000); see also Orders in Docket No. 2000-2 CARP CD 93-97 (June 22, 2000, and August 1, 2000). These rulings will result in a future amendment to § 251.45(a) to specify the content of a properly filed Notice. In the meantime, the Office advises those parties filing Notices of Intention to Participate in this proceeding to comply with the following instructions.

Each party wishing to participate in Docket No. 2001-2 CARP DTNSRA, Docket No. 2001-1 CARP DSTRA, or both must file a Notice of Intention to Participate that contains the following: (1) The party's full name, address, telephone number, and facsimile number (if any); (2) identification of whether the Notice covers Docket No. 2001-2 DTNSRA, Docket No. 2001-1 CARP DSTRA, or both; and (3) a statement of the party's intention to fully participate in a CARP proceeding.

Claimants may, in lieu of individual Notices of Intention to Participate, submit joint Notices. In lieu of the requirement that the Notice contain the party's name, address, telephone number and facsimile number, a joint Notice shall provide the full name, address, telephone number, and facsimile number (if any) of the person filing the Notice and it shall contain a list identifying all parties to the joint Notice. In addition, if the joint Notice is filed by counsel or a representative of one or more of the parties identified in the joint Notice, the joint Notice shall contain a statement from such counsel or representative certifying that, as of the date of submission of the joint Notice, such counsel or representative has the authority and consent of the parties to represent them in the CARP proceeding.

Notices of Intention to Participate are due no later than December 20, 2001. Failure to file a timely Notice of Intention to Participate may preclude a party from participating in a CARP proceeding.

Dated: November 13, 2001.

David O. Carson,

General Counsel.