[Federal Register: November 2, 1999 (Volume 64, Number 211)]
[Proposed Rules]
[Page 59140-59141]
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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
[[Page 59141]]
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.