[Federal Register: October 26, 2004 (Volume 69, Number 206)]
[Rules and Regulations]
[Page 62411-62412]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26oc04-13]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. RM 2004-3A]
Acquisition and Deposit of Unpublished Audio and Audiovisual
Transmission Programs
AGENCY: Copyright Office, Library of Congress.
ACTION: Final rule.
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SUMMARY: This final rule amends the regulations of the Copyright Office
to extend the Library of Congress' recording of unpublished
transmission programs that have been fixed in a tangible medium of
expression, which currently involves the recording of unpublished
television programs, to include the recording of unpublished radio and
other audio and audiovisual transmission programs.
EFFECTIVE DATE: November 26, 2004.
FOR FURTHER INFORMATION CONTACT: David Carson, General Counsel, or
Charlotte Douglass, Principal Legal Advisor, Office of the Copyright
General Counsel, Copyright GC/I&R, PO Box 70400, Southwest Station,
Washington, DC 20024-0400. Telephone: (202) 707-8380; Fax: (202) 707-
8366.
SUPPLEMENTARY INFORMATION: On August 5, 2004, the Copyright Office
published a notice of proposed rulemaking seeking comment on a proposed
amendment to its regulation codified at 37 CFR 202.22. Section
407(e)(1) of the Copyright Act provides that the Librarian of Congress
may record unpublished transmission programs that have been fixed and
transmitted to the public in accordance with regulations established by
the Register of Copyrights. Up until now, those regulations have
provided for the fixation only of unpublished television transmission
programs. However, the Library now wishes to record other audio and
audiovisual transmission programs as authorized by section 407(e)(1),
and the proposed amendment would provide for such recording.
Specifically, the amendment would permit the Library of Congress to
record fixed and unpublished audio and audiovisual transmission
programs. As with the present rule for television, this regulation
would enable the Library to record or demand unpublished radio
transmission programs. Based on empirical and survey information, the
Copyright Office's presumption is that commercial and noncommercial
radio transmission programs are unpublished. In consideration of the
significance of these widely disseminated forms of public
communication, the regulation would also extend the Library's
acquisition authority to cable, satellite and Internet transmission
programs.
Copyright owners may use the recordings made or demanded by the
Library of Congress under this regulation to satisfy the deposit
requirements for registration of copyright claims. 17 U.S.C. 408.
In response to the notice of proposed rulemaking, the Copyright
Office received two comments. The California Association of Library
Trustees and Commissioners supported the Library's proposed rule,
stating that increasing the Library's holdings in this way benefits the
archive and research community. The National Association of
Broadcasters (NAB) did not oppose the regulation, but asserted that the
notice of proposed rulemaking provided no basis for presuming that all
radio transmission programs have been fixed. NAB pointed out that the
Library's existing practice with respect to television programs is to
provide notice to commercial television stations of its intention to
record specific programs, or that it has recorded such programs, at
which point the station may confirm or dispute the Library's belief
with respect to the fixed or unpublished status of the program.
Moreover, NAB asserted that in order meaningfully to exercise the time
limited option of using the Library's recording as a deposit when
registering claims to copyright, its members need to receive notice of
the particular programs that the Library has recorded.
In response to both of NAB's concerns, the final rule announced
herein includes a new provision requiring the Library to maintain on
its Web site, at http://www.loc.gov/rr/record, for audio recordings, or
http://www.loc.gov/rr/mopic, for audiovisual recordings, a list of the
transmission programs that it has recorded under this authority. A
radio, cable, satellite, or Internet transmission program that has been
recorded by the Library shall be included on the list within fourteen
days of the recording by the Library.\1\ Making this information
publicly available on the Web site gives the copyright owner the
opportunity to challenge the Library's presumption that a particular
transmission program had been fixed and unpublished, and it also gives
the copyright owner notice that a recording has been made by the
Library that the owner may use as a deposit in connection with
registration of a copyright claim in the transmission program.
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\1\ Because of the administrative burden, the Library cannot
undertake to send separate notifications to each transmitting
organization whenever the Library has recorded a radio transmission
program.
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List of Subjects
Copyright, Sound recordings.
Final Regulation
0
In consideration of the foregoing, the Copyright Office amends part 202
of 37 CFR to read as follows:
PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT
0
1. The authority citation for part 202 continues to read as follows:
Authority: 17 U.S.C. 702, 407 and 408.
0
2. Section 202.22 is amended as follows:
0
a. by revising the section heading;
0
b. by revising paragraph (a);
0
c. by revising paragraph (b)(1);
0
d. in paragraph (b)(2), by removing ``by Pub. L. 94-553'';
0
e. by revising the heading of paragraph (c);
0
f. by revising paragraph (c)(1);
0
g. in paragraph (c)(2), by removing ``copied off-the-air'' and adding
``recorded'' in its place;
0
h. in paragraph (c)(3), by removing ``copy off-the-air'' and adding
``record'' in its place, by removing ``television'', and by removing
``copying'' and adding ``recording'' in its place;
0
i. by revising paragraph (c)(4);
0
j. in paragraph (c)(5) introductory text, by removing ``off-the-air
copying'' and adding ``recording'' in its place;
0
k. in paragraph (c)(5)(iii), by removing ``with notice of copyright'';
0
l. in paragraph (c)(6) introductory text, by removing ``off-the-air''
and by adding ``or phonorecord'' after ''copy'';
0
m. in paragraph (c)(7), by adding ``or phonorecord'' after ``copy'';
0
n. by revising (c)(8) introductory text;
0
o. in the heading for paragraph (d), by removing ``television'';
0
p. in paragraph (d)(1), by adding ''or phonorecord'' after ``copy'';
0
q. in paragraph (d)(3)(ii), by adding ``or phonorecord'' after ``copy''
each place it appears;
0
r. in paragraph (d)(3)(iv), by removing ``copies''' and adding ``of the
copies or phonorecords'' after ``use'';
0
s. in paragraph (d)(3)(v), by removing ``(a) and (c)'';
[[Page 62412]]
0
t. in paragraph (d)(3)(vi), by adding ``, or in the case of an audio
transmission program, a compliance phonorecord,'' after ``copy'';
0
u. in paragraph (d)(4), by adding ``or phonorecord'' after ``copy''
each place it appears;
0
v. in paragraph (d)(5), by adding ``and phonorecords'' after
``Copies'';
0
w. in paragraph (d)(6)(iii), by removing ``shall be granted'' and
adding ``should be granted'' in its place;
0
x. in the heading of paragraph (e) and paragraph (e)(1), by adding
``and phonorecords'' after ``copies'' each place it appears, and by
adding ``or phonorecord'' after ``copy'';
0
y. by revising paragraph (e)(2);
0
z. in paragraph (f)(1), by adding ``and phonorecords'' after
``Copies'';
0
aa. in paragraph (f)(1)(ii), by adding ``or phonorecord'' after
``copy'';
0
bb. in paragraph (f)(2), by adding ``and phonorecords'' after
``Copies'', and by adding ``or phonorecord'' after ``copy'' each place
it appears; and
0
cc. in paragraph (g)(1), by adding ``or phonorecords'' after
``copies'', and by removing ``television'' and by adding ``audio or
audiovisual'' in its place.
The additions and revisions to Sec. 202.22 read as follows:
Sec. 202.22 Acquisition and deposit of unpublished audio and
audiovisual transmission programs.
(a) General. This section prescribes rules pertaining to the
acquisition of phonorecords and copies of unpublished audio and
audiovisual transmission programs by the Library of Congress under
section 407(e) of title 17 of the United States Code, as amended. It
also prescribes rules pertaining to the use of such phonorecords and
copies in the registration of claims to copyright, under section
408(b).
(b) * * *
(1) The terms copies, fixed, phonorecords, publication, and
transmission program and their variant forms, have the meanings given
to them in section 101 of title 17. The term network station has the
meaning given it in section 111(f) of title 17. For the purpose of this
section, the term transmission includes transmission via the Internet,
cable, broadcasting, and satellite systems, and via any other existing
or future devices or processes for the communication of a performance
or display whereby images or sounds are received beyond the place from
which they are sent.
* * * * *
(c) Recording of transmission programs. (1) Library of Congress
employees, including Library of Congress contractors, acting under the
general authority of the Librarian of Congress, may make a fixation of
an unpublished audio or audiovisual transmission program directly from
a transmission to the public in the United States, in accordance with
subsections 407(e)(1) and (4) of title 17 of the United States Code.
The choice of programs selected for fixation shall be based on the
Library of Congress's acquisition policies in effect at the time of
fixation. Specific notice of an intent to record a transmission program
will ordinarily not be given. In general, the Library of Congress will
seek to record a substantial portion of the television programming
transmitted by noncommercial educational broadcast stations as defined
in section 397 of title 47 of the United States Code, and will record
selected programming transmitted by commercial television broadcast
stations, both network and independent. The Library will also record a
selected portion of the radio programming transmitted by commercial and
noncommercial broadcast stations. Additionally, the Library will record
a selected portion of unpublished Internet, cable and satellite
programming transmitted to the public in the United States.
* * * * *
(4) The Library of Congress is entitled under this paragraph (c) to
presume that a radio program transmitted to the public in the United
States has been fixed but not published at the time of transmission,
and that a television program transmitted to the public in the United
States by a noncommercial educational broadcast station as defined in
section 397 of title 47 of the United States Code has been fixed but
not published.
* * * * *
(8) The Library of Congress shall maintain a list of the radio,
cable, Internet and satellite transmission programs that the Library
has recorded on the Motion Picture, Broadcasting and Recorded Sound
Division Web site at http://www.loc.gov/rr/record/ for audio transmission programs, or http://www.loc.gov/rr/mopic/ for audiovisual
transmission programs, and, in making fixations of such unpublished
transmission programs, shall identify a program that the Library has
recorded by including that transmission program on the list no later
than fourteen days after such fixation has occurred. The Library of
Congress in making fixations of unpublished television transmission
programs transmitted by commercial broadcast stations shall not do so
without notifying the transmitting organization or its agent that such
activity is taking place. In the case of television network stations,
the notification will be sent to the particular network. In the case of
any other commercial television broadcasting station, the notification
will be sent to the particular broadcast station that has transmitted,
or will transmit, the program. Such notice shall, if possible, be given
by the Library of Congress prior to the time of broadcast. In every
case, the Library of Congress shall transmit such notice no later than
fourteen days after such fixation has occurred. Such notice shall
contain:
(e) * * *
* * * * *
(2) All copies and phonorecords acquired or made under this
section, except copies and phonorecords of transmission programs
consisting of a regularly scheduled newscast or on-the-spot coverage of
news events, shall be subject to the following restrictions concerning
copying and access: in the case of television or other audiovisual
transmission programs, copying and access are governed by Library of
Congress Regulation 818-17, Policies Governing the Use and Availability
of Motion Pictures and Other Audiovisual Works in the Collections of
the Library of Congress, or its successors; in the case of audio
transmission programs, copying and access are governed by Library of
Congress Regulation 818-18.1, Recorded Sound Listening and Duplication
Services, or its successors. Transmission programs consisting of
regularly scheduled newscasts or on-the-spot coverage of news events
are subject to the provisions of the ``American Television and Radio
Archives Act,'' 2 U.S.C. 170, and such regulations as the Librarian of
Congress shall prescribe.
* * * * *
Dated: October 13, 2004.
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
Librarian of Congress.
[FR Doc. 04-23934 Filed 10-25-04; 8:45 am]
BILLING CODE 1410-30-P