Rulemakings and Related Actions Concerning Webcasting during 2000
The Copyright Office and Library of Congress have taken the following actions relating to rulemakings and Copyright Arbitration Royalty Proceedings involving the digital performance right and statutory license governed by 17 U.S.C. §114.
Rulemaking to Determine Whether a Transmission of an AM or FM Radio Signal made over a Digital Communications Network by an FCC-licensed Broadcaster is Exempt from the Digital Performance Right (Docket No. RM 2000-3)
The Copyright Office has amended its regulations to clarify that transmissions of an AM/FM broadcast signal over a digital communications network, such as the Internet, are subject to a sound recording copyright owner's exclusive right to perform his or her work publicly by means of digital audio transmissions. Broadcasters who choose to transmit their radio signals over a digital communications network such as the Internet may do so under a compulsory license The Office has determined that an FCC-licensed broadcaster is not exempt from a copyright owner's digital performance right for sound recordings under these circumstances. Section 114(d)(1)(A) of title 17 of the United States Code exempts a noninteractive performance of a sound recording by means of a digital audio transmission from the sound recording copyright owner's exclusive rights when the performance is part of "a nonsubscription broadcast transmission." Section 114(j)(3) defines a broadcast transmission as "a transmission made by a terrestrial broadcast station licensed as such by the Federal Communications Commission. The Office concluded that for purposes of section 114, a "broadcast transmission" includes only over-the-air transmissions made by an FCC-licensed broadcaster under the terms of that license.
65 FR 77292 December 11, 2000. PDF Text
Denial of a Petition to Initiate a Rulemaking Proceeding (Docket No. RM 2000-4B
The Copyright Office has denied a request from the Digital Media Association to initiate a rulemaking proceeding to decide whether a webcasting service becomes interactive when a consumer exerts some influence on the music programming offered by the service. The Office declined to initiate the rulemaking because there is no discernable dispute on this point. It did recognize, however, that the amount and type of influence a consumer has on the programming offered by the transmitting entity will affect whether the activity is characterized as interactive or noninteractive. On this point, the Office determined that it would be unable to fashion a set of criteria or guidelines beyond those already set forth in the law.
65 FR 77330 December 11, 2000. (corrected text) PDF Text
65 FR 78434 December 15, 2000 (notice of correction) PDF Text
Note: There is a typographical error in the 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.
Request for Notices of Intent to Participate and the Announcement of the Precontroversy Discovery Schedule
(Docket No. 2000-9 CARP DTRA1 &2)
The Copyright Office is engaged in an ongoing rate adjustment proceeding, the purpose of which is to set rates and terms for the section 114 statutory license. Docket No. 99-6 CARP DTRA. Because the outcome of the rulemaking on the scope of the exemption for broadcasters would have a significant impacton the identity of the parties to this rate adjustment proceeding, the Officedecided not to adopt a schedule for the precontroversy discovery period forthis proceeding until the rulemaking was concluded. Order, Docket No. 99-6 CARP DTRA, March 21, 2000. Now that the issue is resolved, the Copyright Office is requesting additional notices of intent to participate and announcing the schedule for this proceeding in a notice in the Federal Register.
65 FR 77393 December 11, 2000. PDF Text
Order Consolidating CARP Proceedings to Determine Rates and Terms for Statutory License for Nonsubscription Digital Transmissions of Performances of Sound Recordings and Setting Schedule for Proceedings
The Library of Congress has ordered the consolidation of the Copyright Arbitration Royalty Panel (CARP) proceedings to establish rates and terms for (1) October 28, 1998, through December 31, 2000, and (2) January 1, 2001, through December 31, 2002, for the statutory licenses that allow public performances of sound recordings by means of eligible nonsubscription transmissions (17 U.S.C. §114(f)(2)), and the making of an ephemeral phonorecord of a sound recording in furtherance of making a permitted public performance of the sound recording (17 U.S.C. §112(e). The order also establishes a schedule for the consolidated proceedings. All filings in the consolidated proceedings should be filed under the new docket number, Docket No. 2000-9 CARP DTRA 1&2. Text
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