[Federal Register: September 20, 1999 (Volume 64, Number 181)]

[Rules and Regulations]               

[Page 50758-50759]



Copyright Office

37 CFR Part 201

[Docket No. RM 99-5A]


Notice and Recordkeeping for Nonsubscription Digital 


AGENCY: Copyright Office, Library of Congress.

ACTION: Interim rule amendment.


SUMMARY: To adjust for changes brought about by the passage of the 

Digital Millennium Copyright Act of 1998, the Copyright Office of the 

Library of Congress is amending the regulation that requires the filing 

of an initial notice of digital transmissions of sound recordings under 

statutory license with the Copyright Office.

EFFECTIVE DATE: September 20, 1999.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 

Tanya M. Sandros, Attorney Advisor, Copyright GC/I&R, P.O. Box 70400, 

Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. 

Telefax: (202) 707-8366.



    On November 1, 1995, Congress enacted the Digital Performance Right 

in Sound Recordings Act of 1995 (``DPRA''), Public Law 104-39, 109 

Stat. 336 (1995). The DPRA gave to sound recording copyright owners an 

exclusive right to perform their works publicly by means of a digital 

audio transmission. 17 U.S.C. 106(6). The new right, however, was 

subject to certain limitations, including exemptions for certain 

digital transmissions, 17 U.S.C. 114(d)(1), and the creation of a 

statutory license for nonexempt digital subscription services. 17 

U.S.C. 114(d)(2).

    The statutory license requires adherence to regulations under which 

copyright owners may receive reasonable notice of use of their sound 

recordings under the statutory license, and under which entities 

performing the sound recordings shall keep and make available records 

of such use. 17 U.S.C. 114(f)(2). On May 13, 1996, the Copyright Office 

initiated a rulemaking proceeding to promulgate regulations to govern 

the notice and recordkeeping requirements. 61 FR 22004 (May 13, 1996). 

This rulemaking concluded with the issuance of interim rules governing 

the filing of an initial notice of digital transmissions of sound 

recordings under the statutory license, 37 CFR 201.35, and the filing 

of reports of use of sound recordings under statutory license, 37 CFR 

201.36. See 63 FR 34289 (June 24, 1998).

    At the time these regulations were issued, only three 

noninteractive, subscription, digital transmissions services (DMX, 

Inc., Digital Cable Radio Associates/Music Choice, and Muzak, Inc.) \1\ 

were in operation and considered eligible for the license. 

Consequently, the Office prescribed a period for filing initial notices 

which required any service already operating in accordance with the 

section 114 license to submit its notice within 45 days of the 

effective date of the regulation. Section 201.35(f) reads, in part, as 

follows: ``A Service shall file the Initial Notice with the Licensing 

Division of the Copyright Office prior to the first transmission of 

sound recordings under the license, or within 45 days of the effective 

date of this regulation.'' (Emphasis added).


    \1\ These services were incorrectly identified in the August 4, 

1999, notice as nonsubscription services.


    Subsequently, the President signed into law the Digital Millennium 

Copyright Act of 1998 (``DMCA''). Among other things, the DMCA expanded 

the section 114 compulsory license to allow a nonexempt, eligible 

nonsubscription transmission service and a preexisting satellite 

digital audio radio service to perform publicly a sound recording by 

means of certain digital audio transmissions, subject to compliance 

with notice and recordkeeping requirements. 17 U.S.C. 114(f).

    The notice and recordkeeping requirements found in Secs. 201.35 and 

201.36 would appear to apply to any service eligible for the section 

114 license, including those newly eligible to use the license under 

the amended provisions of the license. However, these regulations 

provide no opportunity for a newly eligible nonsubscription 

transmission service which was in service prior to the passage of the 

DMCA to make a timely filing of its initial notice of transmission. 

Therefore, the Copyright Office proposed an amendment to Sec. 201.35(f) 

which would extend the period for filing the initial notice to October 

15, 1999, in order to allow the eligible nonsubscription services which 

were in operation prior to the passage of the DMCA an opportunity to 

file their initial notice timely. 64 FR 42316 (August 4, 1999).

    On September 2, 1999, the Recording Industry of America, Inc. 

(``RIAA'') filed a comment supporting, in general, the Office's 

proposal to amend the date by which a nonexempt, eligible 

nonsubscription service already in operation could file a timely 

initial notice. RIAA expressed concern, however, that the proposed 

language is overly broad and would allow not only the newly eligible 

nonsubscription services an opportunity to file an initial notice 

timely, but inadvertently extend the filing period for any preexisting 

digital subscription services which had not filed in accordance with 

the original rule. To avoid any confusion on this point, the Office is 

amending the rule to indicate that any subscription service in 

operation prior to September 3, 1998, had until that date to file its 

initial notice with the Copyright Office, in addition to establishing 

an October 15, 1999, filing deadline for any eligible, nonsubscription 

service which is currently in operation. Of course, any new service 

which chooses to make use of the license may file its initial notice 

after these dates, so long as the service files its initial notice with 

the Licensing Division prior to the first transmission of a sound 


Regulatory Flexibility Act

    Although the Copyright Office, located in the Library of Congress 

which is part of the legislative branch, is not an ``agency'' subject 

to the Regulatory Flexibility Act, 5 U.S.C. 601-612, the Register of 

Copyrights has considered the effect of the amendment on small 

businesses. The Register has determined that the amendment would not 

have a significant economic impact on a substantial number of small 

entities that would require provision of special relief

[[Page 50759]]

for small entities. The amendment is designed to minimize any 

significant economic impact on small entities.

List of Subjects in 37 CFR Part 201


Final Regulations

    For the reasons set forth in the preamble, part 201 of title 37 of 

the Code of Federal Regulations is amended as follows:


    1. The authority citation for part 201 continues to read as 


    Authority: 17 U.S.C. 702.

Sec. 201.35  [Amended]

    2. Section 201.35(f) is amended by removing the phrase ``or within 

45 days of the effective date of this regulation.'' and adding in its 

place the folllowing: * * * or by September 3, 1998, in the case of a 

Service that makes subscription transmissions before or on that date, 

or by October 15, 1999, in the case of a Service that makes eligible 

nonsubscription transmissions before, or on, that date. * * *

    Dated: September 10, 1999.

Marybeth Peters,

Register of Copyrights.

    Approved by:

James H. Billington,

The Librarian of Congress.

[FR Doc. 99-24303 Filed 9-17-99; 8:45 am]