[Federal Register: October 30, 2001 (Volume 66, Number 210)]
[Notices]
[Page 54789-54791]
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LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2001-7 CARP SD 2000]
Ascertainment of Controversy for the 2000 and 2001 Satellite
Royalty Funds
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice with request for comments and notices of intention to
participate.
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SUMMARY: The Copyright Office of the Library of Congress directs all
claimants to royalty fees collected under the section 119 statutory
license in 2000 to submit comments as to whether a Phase I or Phase II
controversy exists as to the distribution of those fees, and a Notice
of Intention to Participate in a royalty distribution proceeding.
Parties who submit a Notice of Intention to Participate may submit
comments on the motion for a partial distribution filed by the Public
Broadcasting Service.
DATES: Comments and Notices of Intention to Participate are due by
November 29, 2001. Reply comments are due by December 31, 2001.
ADDRESSES: If sent by mail, an original and five copies of written
comments and a Notice of Intention to Participate should be addressed
to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 70977,
Southwest Station, Washington, DC 20024. If hand delivered, an original
and five copies should be brought to: Office of the General Counsel,
James Madison Memorial Building, Room 403, First and Independence
Avenue, SE., Washington, DC 20540.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Tanya M. Sandros, Senior Attorney, Copyright Arbitration Royalty
Panels, P.O. Box 70977, Southwest Station, Washington, DC 20024.
Telephone (202) 707-8380. Telefax: (202) 252-3423.
SUPPLEMENTARY INFORMATION: Each year satellite carriers submit
royalties to the Copyright Office for the retransmission of over-the-
air broadcast signals to their subscribers. 17 U.S.C. 119. These
royalties are, in turn, distributed in one of two ways to copyright
owners whose works were included in a
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retransmission of an over-the-air broadcast signal and who timely filed
a claim for royalties with the Copyright Office. The copyright owners
may either negotiate the terms of a settlement as to the division of
the royalty fees, or the Librarian of Congress may convene a Copyright
Arbitration Royalty Panel (``CARP'') to determine the distribution of
the royalty fees that remain in controversy. See 17 U.S.C. chapter 8.
During the pendency of any proceeding, the Librarian of Congress
may distribute any amounts that are not in controversy, provided that
sufficient funds are withheld to cover reasonable administrative costs
and to satisfy all claims with respect to which a controversy exists
under his authority set forth in section 119(b)(4)(C) of the Copyright
Act, title 17 of the United States Code. See, e.g., Orders, Docket No.
97-1 CARP SD 92-95 (dated March 17, 1997) and Docket No. 2000-7 CARP SD
96-98 (dated February 23, 2001). Therefore, the Copyright Office must,
prior to any distribution of the royalty fees, ascertain who the
claimants are and the extent of any controversy over the distribution
of the royalty fees.
The CARP rules provide that:
In the case of a royalty fee distribution proceeding, the
Librarian of Congress shall, after the time period for filing
claims, publish in the Federal Register a notice requesting each
claimant on the claimant list to negotiate with each other a
settlement of their differences, and to comment by a date certain as
to the existence of controversies with respect to the royalty funds
described in the notice. Such notice shall also establish a date
certain by which parties wishing to participate in the proceeding
must file with the Librarian a notice of intention to participate.
37 CFR 251.45(a). The Copyright Office may publish this notice on its
own initiative, see, e.g., 64 FR 23875 (May 4, 1999); in response to a
motion from an interested party, see, e.g., 65 FR 56941 (September 20,
2000), or in response to a petition requesting that the Office declare
a controversy and initiate a CARP proceeding. In this case, the Office
has received a motion for distribution of PBS National Satellite Feed
royalty funds for 2000 and 2001.
However, before considering the merits of the motion for a partial
distribution of the 2000 and 2001 satellite royalty fees, the Office
must first determine who has a significant interest in participating in
any proceeding concerning the distribution of these fees. Therefore,
the Office is directing any claimant to 2000 satellite royalty fees
collected under the section 119 statutory license to file a Notice of
Intention to Participate in a royalty distribution proceeding, the
purpose of which will be to consider the proper distribution of these
fees. Only a party who files a Notice of Intention to Participate may
submit comments on the PBS motion for a distribution of the PBS
National Satellite Feed Royalty Funds for Calendar Years 2000 and 2001.
Parties are reminded that informal service of a pleading to any
party prior to the publication of a notice in the Federal Register
requesting Notices of Intention to Participate in a CARP proceeding is
for informational purposes only. The ``official service list'' for any
distribution or rate adjustment proceeding is compiled by the Librarian
of Congress from the notices of intention filed with this office in
response to the notice published in the Federal Register. Section
251.44 of title 37 of the Code of Federal Regulations provides that:
The Librarian of Congress shall compile and distribute to those
parties who have filed a notice of intent to participate, the
official service list of the proceeding, which shall be composed of
the names and addresses of the representatives of all the parties to
the proceeding. In all filings, a copy shall be served upon counsel
of all other parties identified in the service list, or, if the
party is unrepresented by counsel, upon the party itself.
37 CFR 251.44(f) (emphasis added). Consequently, no party has been
properly served in this proceeding because the official service list
has yet to be created. Nevertheless, the Copyright Office will consider
the oppositions already filed with the Copyright Office by SESAC, Inc.;
Program Suppliers and Joint Sports, jointly; and the American Society
of Composers, Authors and Publishers (``ASCAP'') and Broadcast Music,
Inc. (``BMI'') (collectively, the ``Music Claimants'') in response to
the Public Broadcasting Service (``PBS'') motion. These parties may
also submit supplemental filings to their oppositions up to the due
date set forth in this notice. Similarly, any response to an opposition
already filed with the Office will be considered a reply comment for
purposes of this proceeding, provided that the submitting party has
filed a timely Notice of Intention to Participate
1. Notice of Intention 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 Orders in Docket No. 2000-2 CARP CD 93-97 (June 22,
2000, and August 1, 2000); see also 65 FR 54077 (September 6, 2000).
These rulings will result in a future amendment to Sec. 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 claimant that has a dispute over the distribution of the 2000
satellite royalty fees, either at Phase I or Phase II, shall file a
Notice of Intention to Participate that contains the following: (1) The
claimant's full name, address, telephone number, and facsimile number
(if any); (2) identification of whether the Notice covers a Phase I
proceeding, a Phase II proceeding, or both; and (3) a statement of the
claimant'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 claimant'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 the claimants
that are parties to the joint Notice. In addition, if the joint Notice
is filed by counsel or a representative of one or more of the claimants
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 claimants to
represent them in the CARP proceeding.
Notices of Intention to Participate are due no later than November
29, 2001. Failure to file a timely Notice of Intention to Participate
may preclude a claimant or claimants from participating in a CARP
proceeding.
2. Comments on the Existence of Controversies
Before commencing a distribution proceeding or making a partial
distribution, the Librarian of Congress must first ascertain whether a
controversy exists as to the distribution of the royalty fees and the
extent of those controversies. 17 U.S.C. 803(d). Therefore, any
comments filed in response to the PBS motion must address the existence
and extent of any controversies, at Phase I and Phase II, as
[[Page 54791]]
to the distribution of the 2000 satellite fees. For the reasons stated
herein, comments on the existence and extent of controversy over the
distribution of the 2001 satellite royalty fees are premature and will
not be considered at this time.
In Phase I of a satellite royalty distribution, royalties are
distributed to certain categories of broadcast programming that has
been retransmitted by satellite carriers. The categories have
traditionally been syndicated programming and movies, sports,
commercial and noncommercial broadcaster-owned programming, religious
programming, and music programming. The Office seeks comments as to
controversies between these categories for royalty distribution.
In Phase II of a satellite royalty distribution, royalties are
distributed to claimants within a program category. If a claimant
anticipates a Phase II controversy, the claimant must state each
program category in which he or she has an interest that has not, by
the end of the comment period, been satisfied through a settlement
agreement.
The Copyright Office must be advised of the existence and extent of
all Phase I and Phase II controversies by the end of the comment
period. It will not consider any controversies that come to our
attention after the close of that period.
3. Motion of Public Broadcasting Service for Distribution of PBS
National Satellite Feed Royalty Funds for Calendar Years 2000 and
2001
On June 21, 2001, PBS filed a motion for distribution of PBS
national satellite feed royalty fees for calendar years 2000 and 2001
and sent a copy of the motion to those entities that have participated
in past satellite distribution proceedings. The Office has determined
that, as a matter of law, consideration of a distribution of the 2001
satellite royalty fees is premature. A distribution of the 2001
satellite royalty fees cannot occur until those persons who are
entitled to a share of the royalties have an opportunity to file their
claims with the Copyright Office. Claims to the 2001 satellite royalty
fees will not be filed with the Copyright Office until the month of
July, 2002. See 17 U.S.C. 119(b)(4). Consequently, the Office will
consider the motion only so far as it concerns the distribution of the
2000 satellite royalty fees and only after all interested parties have
been identified by filing the Notices of Intention requested herein and
such parties have had an opportunity to respond to the motion.
A claimant who is not a party to the motion may file a response to
the motion no later than the due date set forth in this notice,
provided that the respondent files a Notice of Intention to Participate
in this proceeding in accordance with this notice. The PBS motion for
distribution of PBS national satellite feed royalty funds for 2000-2001
is posted on the Copyright Office Web site (http://www.loc.gov/
copyright/carp/pbsmotion.pdf) and is available for copying in the
Office of the General Counsel. Additional responsive filings are also
available for copying in the Office of the General Counsel.
Dated: October 17, 2001.
David O. Carson,
General Counsel.
[FR Doc. 01-27318 Filed 10-29-01; 8:45 am]
BILLING CODE 1410-33-P