December 11, 2000
Issue 111
For additional information, visit the Copyright Office homepage at www.copyright.gov
Copyright Office Amends Regulatory Definition of a "Service" (65 FR 77292)
Copyright Office Denies DiMA Petition to Initiate Rulemaking on Definition of a "Service" (65 FR 77330)
The Library of Congress Provides Additional Time for Filing Notices of Intent to Participate in CARP (65 FR 77393)
The Copyright Office is amending its regulatory definition of a "service" for purposes of the statutory license governing the public performance of sound recordings by means of digital audio transmissions. The definition is amended in order to clarify that transmissions of a broadcast signal over a digital communications network such as the Internet are not exempt from copyright liability under section 114(d)(1)(A) of the Copyright Act. Consequently, broadcasters must license the copyrights to the programming contained on such radio signals either by entering into private licensing agreements or by availing themselves of the statutory licenses under sections 114(f) and 112(e) of the Copyright Act. The Copyright Office of the Library of Congress announces a cost of living adjustment of 3.4 percent in the royalty rates paid by colleges, universities, or other nonprofit educational institutions not affiliated with National Public Radio for the use of copyrighted published nondramatic musical compositions. The cost of living adjustment is based on the change in the Consumer Price Index from October 1999 to October 2000. Rounding off to the nearest dollar, the adjustment in the royalty rate for the use of musical compositions in the repertory of ASCAP and BMI is $239 each and $65 for the use of musical compositions in the repertory of SESAC.
On April 17, 2000, the Digital Media Association (DiMA) filed a petition with
the Copyright Office requesting that the Office initiate a rulemaking proceeding
to amend the rule that defines the term "Service" for purposes of
the statutory license governing the public performance of sound recordings by
means of digital audio transmissions. DiMA sought an amendment that, if adopted,
would expand the current definition of the term "Service" to state
that a service is not interactive simply because it offers the consumer some
degree of influence over the programming offered by the webcaster. For the reasons
set forth in this Federal Register announcement, the Copyright Office is denying
the DiMA petition.
Please note that there is a typographical error in this notice published in the Federal Register on December 11, 2000. Footnote 1 should read: RIAA and DiMA discussed the services offered by Launch Media, Inc., through its LAUNCHcast service, and MTV, through its Radio SonicNet service, to illustrate the type of offerings that are in dispute. See RIAA comment at 6-7; DiMA reply at 18-21. From these descriptions, there is considerable doubt whether either offering would qualify as a noninteractive service.
A correction to this announcement will be published in the Federal Register later this week.
Due to the ruling by the Copyright Office that broadcasters are not exempt from copyright liability when they retransmit over the Internet copyrighted works contained on their AM and FM radio signals (65 FR 77292), the Library of Congress has determined that it is appropriate to reopen the filing period for a limited time to allow for additional participants in these proceedings to set rates and terms for (1) the statutory license allowing certain eligible nonsubscription services to perform sound recordings publicly by means of digital audio transmissions and (2) the statutory license allowing a transmitting organization to make an ephemeral recording of a sound recording for the purpose of making a permitted public performance (65 FR 55302). The Library is providing an additional time period for filing Notices of Intent to Participate in the rate proceeding for 1998-2000 and the rate proceeding for 2001-2002. Notices of Intent to Participate are now due no later than January 10, 2001. In addition, the Library announces the precontroversy discovery schedule for these consolidated proceedings.
The Library of Congress issued an Order consolidating before a single Copyright Arbitration Royalty Panel (CARP) the 1998-2000 and 2001-2002 proceedings setting rates and terms for the digital performance right in sound recordings and ephemeral recordings. The consolidation order may be found on the Copyright Office's Website at www.copyright.gov/carp/114schedule.html.
Parties wishing to participate in the CARP proceedings should familiarize themselves with the contents of this Order.
For a summary of each of the above Federal Register notices and the consolidation
order and for links to these
documents, see www.copyright.gov/carp/webcast.html.
January 1, 2001: Effective date of change in royalty rates paid by colleges, universities, or other nonprofit educational institutions not affiliated with National Public Radio for the use of copyrighted published nondramatic musical compositions (65 FR 75167)
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