[Federal Register: May 9, 2005 (Volume 70,
37 CFR Part 270
[Docket No. RM 2005-2A]
AGENCY: Copyright Office, Library of Congress
ACTION: Final rule
The Copyright Office of the Library of Congress is adopting amendments to the rules governing reports of use of sound recordings under the statutory license for preexisting subscription services.
June 8, 2005.
David O. Carson, General Counsel, or William J. Roberts, Jr. Telephone: (202) 707-8380. Telefax: (202) 252- 3423.
Digital audio services provide copyrighted sound recordings of music for the listening enjoyment of the users of those services. In order to provide these sound recordings, however, a digital audio service must license the copyrights to each musical work, as well as the sound recording of the musical work. There are two statutory licenses in the Copyright Act that enable a digital audio service to transmit performances of copyrighted sound recordings: section 112 and section 114. 17 U.S.C. 112 & 114. Congress initially established these licenses in the Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, for subscription digital audio services then in existence, and later amended sections 112 and 114 in the Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, to include other types of digital audio services. It is the former category of services (hereinafter referred to as “preexisting subscription services”) to which this final rule applies.
On June 24, 1998, the Copyright Office published interim regulations establishing the requirements by which copyright owners receive reasonable notice of the use of their works from preexisting subscription services, and how reports of use shall be kept and made available to copyright owners. Originally codified at §§201.35 through 201.37 of title 37 of the Code of Federal Regulations, these regulations have recently been moved to part 270 of the CFR, but have remained unchanged. On March 18, 2003, the preexisting subscription services-Music Choice, DMX Music Inc., and Muzak LLC-and representative organizations of copyright owners of sound recordings- SoundExchange, Inc., the American Federation of Television and Radio Artists, and the American Federation of Musicians-filed a petition with the Copyright Office seeking to amend the regulations regarding reports of use (formerly Sec. 201.36, now Sec. 270.2) for preexisting subscription services. At that time, the Office was conducting a rulemaking proceeding to establish notice and recordkeeping requirements for digital audio services other than preexisting subscription services and declined to include the petition in that proceeding. See 69 FR 11515, 11517 n.9 (March 11, 2004). Instead, the Office determined to address the petition “in a separate Federal Register document.” Id. A Notice of Proposed Rulemaking (“NPRM”) was published on March 15, 2005. 70 FR 12631 (March 15, 2005).
The Office did not receive any public comments and, consequently, is adopting the rule changes as proposed in the NPRM.
Copyright, Sound Recordings.
In consideration of the foregoing, the Copyright Office is amending part 270 of 37 CFR to read as follows:
1. The authority citation for part 270 continues to read as follows:
Authority: 17 U.S.C. 702
2. Section 270.2 is amended as follows:
a. By revising paragraph (b)(2);
b. By revising paragraph (b)(3);
c. In paragraph (c), by adding “or pursuant to a settlement agreement reached or statutory license adopted pursuant to section 112(e)” after “17 U.S.C. 802(f)” and by removing “twentieth” and adding “forty-fifth” in its place;
d. In paragraph (d) introductory text, by removing “20th” and adding “forty-fifth” in its place; and
e. By revising paragraph (e). The additions and revisions to Sec. 270.2 read as follows:
Sec. 270.2 Reports of use of sound recordings under statutory license for preexisting subscription services.
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(b) * * *
(2) A Report of Use of Sound Recordings Under Statutory License is the report of use required under this section to be provided by a Service transmitting sound recordings and making ephemeral phonorecords therewith under statutory licenses.
(3) A Service is a preexisting subscription service, as defined in 17 U.S.C. 114(j)(11).
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(e) Content. A “Report of Use of Sound Recordings under Statutory License” shall be identified as such by prominent caption or heading, and shall include a preexisting subscription service's “Intended Playlists” for each channel and each day of the reported month. The “Intended Playlists” shall include a consecutive listing of every recording scheduled to be transmitted, and shall contain the following information in the following order:
(1) The name of the preexisting subscription service or entity;
(2) The channel;
(3) The sound recording title;
(4) The featured recording artist, group, or orchestra;
(5) The retail album title (or, in the case of compilation albums created for commercial purposes, the name of the retail album identified by the preexisting subscription service for purchase of the sound recording);
(6) The marketing label of the commercially available album or other product on which the sound recording is found;
(7) The catalog number;
(8) The International Standard Recording Code (ISRC) embedded in the sound recording, where available and feasible;
(9) Where available, the copyright owner information provided in the copyright notice on the retail album or other product (e.g., following the symbol (P), that is the letter P in a circle) or, in the case of compilation albums created for commercial purposes, in the copyright notice for the individual sound recording;
(10) The date of transmission; and
(11) The time of transmission.
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Dated: April 20, 2005.
Register of Copyrights
James H. Billington,
The Librarian of Congress.