[Federal Register: July 20, 1999 (Volume 64, Number 138)]
[Proposed Rules]
[Page 38861-38862]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jy99-27]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 255
[Docket No. 99-4 CARP DPRA]
Digital Phonorecord Delivery Rate Adjustment Proceeding
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of initiation of negotiation period.
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SUMMARY: The Copyright Office of the Library of Congress is announcing
the initiation of the negotiation period for determining reasonable
rates and terms for digital transmissions that constitute a digital
phonorecord delivery for the period commencing January 1, 2001. This
negotiation period is intended to promote an industry-wide agreement as
to the rates and terms for digital phonorecord deliveries.
DATES: The negotiation period begins on July 20, 1999, and ends on
December 31, 1999. Petitions for an arbitration for rate adjustment
must be filed during the year 2000.
ADDRESSES: If sent by mail, an original and five copies of the petition
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 of the petition should be
brought to: Office of the Copyright General Counsel, James Madison
Memorial Building, Room LM-403, First and Independence Avenue, SE,
Washington, DC 20559-6000.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Tanya M. Sandros, Attorney Advisor, Copyright Arbitration Royalty Panel
(CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024.
Telephone: (202) 707-8380 or Telefax: (202) 252-3423.
SUPPLEMENTARY INFORMATION: On November 1, 1995, Congress passed the
Digital Performance Right in Sound Recordings Act of 1995 (``Digital
Performance Right Act''), Pub. L. 104-39, 109 Stat. 336. Among other
things, it confirms and clarifies that the scope of the statutory
license to make and distribute phonorecords of nondramatic musical
compositions, 17 U.S.C. 115, includes the right to distribute or
authorize distribution by means of a digital transmission which
constitutes a ``digital phonorecord delivery.'' 17 U.S.C. 115(c)(3)(A).
A ``digital phonorecord delivery'' is defined as ``each individual
delivery of a phonorecord by digital transmission of a sound recording
which results in a specifically identifiable reproduction by or for any
transmission recipient of a phonorecord of that sound recording * * *
.'' 17 U.S.C. 115(d).
The Digital Performance Right Act established that the rate for all
digital phonorecord deliveries (``DPDs'') made or authorized under a
compulsory license on or before December 31, 1997, was the same as the
rate in effect for the making and distribution of physical phonorecords
for that period. 17 U.S.C. 115(c)(3)(A)(i). For digital phonorecord
deliveries made or authorized after December 31, 1997, the Digital
Performance Act established a two-step process for determining the
terms and rates: either the copyright owners of nondramatic musical
works and those persons entitled to obtain a license may negotiate the
rates and terms for the statutory license, or they may participate in a
Copyright Arbitration Royalty Panel (``CARP'') proceeding. 17 U.S.C.
115(c)(3)(A)-(D). Such rates and terms, whether negotiated by the
parties or determined by a CARP, are to distinguish between ``digital
phonorecord deliveries where the reproduction or distribution of a
phonorecord is incidental to the transmission which constitutes the
digital phonorecord delivery, and (ii) digital phonorecord deliveries
in general.'' 17 U.S.C. 115(c)(2)(C)-(D). This two-step process is to
be repeated ``in each fifth calendar year after 1997,'' 17 U.S.C.
115(c)(3)(F), unless the parties agree to different years for the
repeating
[[Page 38862]]
and concluding of such proceedings. 17 U.S.C. 115(c)(3)(B)-(F).
The first proceeding to adjust the royalty rates for the delivery
of digital phonorecords concluded earlier this year. In that
proceeding, the parties reached an industry-wide agreement setting the
rate for the delivery of digital phonorecords and deferring until the
next scheduled rate adjustment proceeding the determination of the rate
for the delivery of a digital phonorecord where the reproduction or
distribution is incidental to the transmission which constitutes a
digital phonorecord delivery. In accordance with Sec. 251.63(b), the
Librarian published a notice in the Federal Register requesting public
comment on the proposed rates and terms. 63 FR 71249 (December 24,
1998). Upon receiving no comments opposing the rates and terms for the
delivery of digital phonorecords set forth in the December 24, 1998,
notice, the Librarian adopted the proposed rates and amended part 255
of the Copyright Office's rules accordingly. 64 FR 6221 (February 9,
1999). The newly adopted regulation requires that the two-step process
for adjusting the royalty rates be repeated in 1999 in order ``to
determine the applicable rates and terms * * * during the period
beginning January 1, 2001.'' 37 CFR 255.7.
Initiation of Voluntary Negotiations
Pursuant to sections 115(c)(3)(B)-(F) and Sec. 255.7, the Copyright
Office of the Library of Congress is initiating the voluntary
negotiation period for the determination of reasonable rates and terms
for the delivery of digital phonorecords and the delivery of a digital
phonorecord where the reproduction or distribution is incidental to the
transmission which constitutes a digital phonorecord delivery for the
two-year period commencing January 1, 2001. The negotiation period
shall run from the date of publication of this notice in the Federal
Register and end on December 31, 1999. Such terms and rates shall
distinguish between (a) digital phonorecord deliveries where the
reproduction or distribution of a phonorecord is incidental to the
transmission which constitutes the digital phonorecord delivery, and
(b) digital phonorecord deliveries in general.
Petitions
In the absence of a license agreement negotiated under 17 U.S.C.
115(c)(3)(B)-(C), a party with a significant interest in establishing
reasonable rates and terms for this compulsory license may file a
petition to convene a CARP with the Copyright Office. Accordingly, the
petition shall detail petitioner's interest in the royalty rate
sufficiently to permit the Librarian of Congress to determine whether
the petitioner has a ``significant interest'' in the rate. The petition
must also identify the extent to which the petitioner's interest is
shared by other owners and users; owners and users with similar
interests may file a joint petition. 37 CFR 251.62. Petitions should be
filed with the Copyright Office during the year 2000.
Dated: July 15, 1999.
David O. Carson,
General Counsel.
[FR Doc. 99-18489 Filed 7-19-99; 8:45 am]
BILLING CODE 1410-31-P