[Federal Register: April 5, 2000 (Volume 65, Number 66)]
[Proposed Rules]
[Page 17840-17841]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2000-3A]
Public Performance of Sound Recordings: Definition of a Service
AGENCY: Copyright Office, Library of Congress.
ACTION: Request for comments.
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SUMMARY: The Copyright Office is seeking comments on a motion to
suspend the rulemaking proceeding which would determine whether
transmissions of a broadcast signal over a digital communications
system, such as the internet, are exempt from copyright liability.
DATES: Written comments are due on April 17, 2000. Reply comments are
due May 1, 2000.
ADDRESSES: If sent by mail, an original and ten copies of comments and
reply comments should be addressed to: Copyright Arbitration Royalty
Panel (CARP), P.O. Box 70977, Southwest Station, Washington, D.C.
20024. If hand delivered, they should be brought to: Office of the
General Counsel, James Madison Memorial Building, Room LM-403, First
and Independence Avenue, S.E., Washington, D.C. 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: (202)
707-8380. Telefax: (202) 252-3423.
SUPPLEMENTARY INFORMATION:
Background
On March 1, 2000, the Recording Industry Association of America,
Inc. (``RIAA'') filed a petition with the Copyright Office, requesting
that it initiate a rulemaking proceeding to determine whether over-the-
air broadcast radio transmissions that are transmitted over the
Internet are exempt from copyright liability pursuant to section 114 of
the Copyright Act, title 17 of the United States Code. On March 16,
2000, the Office published a notice of proposed rulemaking in which it
requested comments on the scope of the section 114(a) exemption and
whether the Office should decide this question through a notice and
comment proceeding. 65 FR 14227 (March 16, 2000).
In response to that notice, the National Association of
Broadcasters (``NAB'') filed, on behalf of its members, a complaint
against the RIAA in the U.S. District Court for the Southern District
of New York seeking a declaratory ruling that a simultaneous
transmission of an over-the-air broadcast of an FCC-licensed radio
station over the Internet is exempt from the digital performance right
in sound recordings and, consequently, is not subject to compulsory
licensing under section 114 of the Act, or to discretionary licensing
by individual copyright holders. Subsequently, NAB and ABC, Inc., AMFM,
Inc., Bonneville International Corporation, CBS Corporation, Clear
Channel Communications, Inc., Cox Radio, Inc., Emmis Communications
Corporation and the Walt Disney Company (collectively ``movants'')
filed a motion with the Copyright Office on March 29, 2000, requesting
a suspension of the rulemaking proceeding regarding the Digital
Performance Right in Sound Recordings.
In the motion, Movants suggest that the resolution of a fundamental
question involving nothing more than the interpretation of a statutory
provision is best left to a court of competent jurisdiction. Motion at
5. they intimate that an agency need not involve itself in such issues,
at least in the first instance, unless the question raises regulatory
policy concerns or falls within the unique expertise of the agency.
They also argue that a rulemaking proceeding is an inadequate means for
resolving such a ``fundamental'' issue, and for that reason such
questions should be decided by a court.
Since the issues raised in the motion merely respond to the
Office's request for comment on whether the Office should proceed to
decide the question concerning the scope of the section 114(a)
exemption through a notice and comment proceedings, the Office cannot
address the merits of the motion until those parties with an interest
in the proceeding have an opportunity to comment. Because the motion
sets forth concrete arguments urging the Office defer addressing the
scope of the section 114(a) exemption in a notice and comment
proceeding in order to allow a court--in this instance, the U.S.
District Court for the Southern District of New York--the opportunity
to resolve the issue, the Office is making the motion available at this
time in order to give all interested parties notice of the motion and
an opportunity to comment on the arguments set forth therein.
Copies of the motion are available from the Office of the General
Counsel of Copyright at the address listed in this notice. The motion
has also been posted
[[Page 17841]]
to the Copyright Office website (http://www.copyright.gov/
licensing/motion-suspend.pdf). Comments on the motion to suspend are to
be included in the comments a party submits on the substantive issues
set forth in the initial notice of proposed rulemaking. Comments are
due on April 17, 2000, and reply comments are due on May 1, 2000, the
dates specified in the initial notice of proposed rulemaking, and
should be included as part of any comments interested parties submit in
response to the initial notice of proposed rulemaking.
Dated: March 31, 2000.
Marilyn J. Kretsinger,
Assistant General Counsel.
[FR Doc. 00-8386 Filed 4-4-00; 8:45 am]
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