[Federal Register: February 3, 2004 (Volume 69, Number 22)]
[Page 5196]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Copyright Office

[Docket No. 2004-1 CARP DTRA4]

Digital Performance Right in Sound Recordings and Ephemeral 

AGENCY: Copyright Office, Library of Congress.

ACTION: Initiation of voluntary negotiation period.


SUMMARY: The Copyright Office is announcing the initiation of a 
voluntary negotiation period for determining reasonable rates and terms 
for two compulsory licenses which, in one case, provides for a public 
performance of a sound recording by a new subscription service, and in 
the second instance, allows for the making of an ephemeral phonorecord 
of a sound recording in furtherance of making the permitted public 
performance. The rates and terms will be for the period beginning 
January 1, 2005 and ending on December 31, 2006.

EFFECTIVE DATE: The voluntary negotiation period begins on February 3, 

ADDRESSES: Copies of voluntary license agreements and petitions, if 
sent by mail, should be addressed to: Copyright Arbitration Royalty 
Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024. 
If hand delivered by a commercial, non-government courier or messenger, 
they must be delivered to: The Congressional Courier Acceptance Site, 
located at 2nd and D Streets, NE., between 8:30 a.m. and 4 p.m. If hand 
delivered by a party, copies of voluntary license agreements and 
petitions should be addressed to Office of the General Counsel, U.S. 
Copyright Office, James Madison Memorial Building, Room LM-401, First 
and Independence Avenue, SE., Washington, DC 20559-6000, and delivered 
to the Public Information Office of the Copyright Office in Room LM-401 
between the hours of 8:30 a.m. and 5 p.m.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Tanya M. Sandros, Senior Attorney, Telephone: (202) 707-8380. Telefax: 
(202) 252-3423.

SUPPLEMENTARY INFORMATION: On January 6, 2004, the Office announced the 
voluntary negotiation period for adjusting rates and terms for the 
statutory licenses which provide for the public performance of a sound 
recording by means of a digital audio transmission, 17 U.S.C. 114, and 
the making of related ephemeral recordings, 17 U.S.C. 112(e), for the 
two-year license period beginning January 1, 2005. See 69 FR 689 
(January 6, 2004). That notice specifically noted that the negotiations 
were for establishing rates and terms applicable to eligible 
nonsubscription transmissions and the related ephemeral recordings. 
However, the notice should also have stated that the negotiation 
process and any subsequent proceedings before a copyright arbitration 
royalty panel are to include the rates and terms applicable to a new 
subscription service for the same time period.
    For purposes of the section 114 and the section 112 licenses, an 
``eligible nonsubscription transmission'' and a ``new subscription 
service'' are defined in the following way. An ``eligible 
nonsubscription transmission'' is a noninteractive, digital audio 
transmission which, as the name implies, does not require a 
subscription for receiving the transmission. The transmission must also 
be made as part of a service that provides audio programming consisting 
in whole or in part of performances of sound recordings the purpose of 
which is to provide audio or entertainment programming, but not to 
sell, advertise, or promote particular goods or services. A ``new 
subscription service,'' on the other hand, is a service that performs 
sound recordings by means of noninteractive subscription digital audio 
transmissions. A ``new subscription service'' is not to be confused 
with the three preexisting subscription services, Music Choice, DMX 
Music, Inc., and Muzak, L.P., or the two preexisting satellite digital 
audio radio services, XM Satellite Radio, Inc. and Sirius Satellite 
Radio, Inc. See 17 U.S.C. 114(j)(6) and (8). Rates and terms applicable 
to these particular services for use of the section 112 and section 114 
licenses are adjusted every five years under a different standard. See 
17 U.S.C. 114(f)(1) and 68 FR 39873 (July 3, 2003).
    Because the procedures and standards for setting the statutory 
rates and terms applicable to eligible nonsubscription transmissions 
are the same as the standards for transmissions made by new 
subscription services, rates and terms for the public performance of a 
sound recording and the making of the necessary ephemeral phonorecords 
for both transmission categories will be considered together in a 
single proceeding, just as they were during the initial rate setting 
proceeding. See 68 FR 27596 (May 20, 2003). Consequently, the rate 
setting process initiated with the publication of the January 6 notice 
shall consider both eligible nonsubscription transmissions and 
transmissions made by new subscription services.

    Dated: January 28, 2004.
David Carson,
General Counsel.
[FR Doc. 04-2147 Filed 2-2-04; 8:45 am]