[Federal Register: November 26, 1999 (Volume 64, Number 227)]
[Rules and Regulations]               
[Page 66391-66392]


Copyright Office

37 CFR Part 201

[Docket No. RM 99-5C]

Notice and Recordkeeping for Non-subscription Digital 

AGENCY: Copyright Office, Library of Congress.

ACTION: Interim rule amendment.


SUMMARY: The Copyright Office is extending the date by which a non-
interactive, non-subscription service currently making digital 
transmissions of sound recordings must file an initial notice of 
digital transmission with the Copyright Office from October 15, 1999, 
to December 1, 1999.

EFFECTIVE DATE: November 26, 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, D.C. 20024. Telephone: (202) 707-8380. 
Telefax: (202) 707-8366.

    The Digital Performance Right in Sound Recordings Act of 1995, 
Public Law 104-39, 109 Stat. 336, created a statutory license that 
allowed an eligible subscription service to perform publicly a sound 
recording by means of digital audio transmissions, provided that the 
service adheres to the terms of the license and complies with the 
notice and recordkeeping regulations promulgated by the Librarian of 
Congress. 17 U.S.C. 114(f)(2) (1995). Three years later with the 
passage of the Digital Millennium Copyright Act of 1998 (``DMCA''), 
Congress expanded the scope of this license to include nonexempt, non-
subscription transmission services and two preexisting satellite 
digital audio radio services.
    Prior to the passage of the DMCA, the Copyright Office published 
regulations to govern how a subscription service was to provide notice 
to the copyright owners of the sound recordings and maintain specific 
records documenting the use of these works. See 63 FR 34289 (June 24, 
1998). Under these regulations, each service had to file an initial 
notice of digital transmission with the Licensing Division of the 
Copyright Office. 37 CFR 201.35. The deadline for filing this notice 
was structured to allow a service to file its notice either before it 
commenced operation, or in the case of a service already making 
transmissions prior to the publication of the rule, within 45 days of 
the effective date of the regulation.
    These filing requirements, however, did not allow a service newly 
eligible to make use of the license under the DMCA to make a timely 
filing of its initial notice of digital transmission. Therefore, the 
Office proposed an amendment to--201.35(f) which extended the date for 
filing an initial notice to October 15, 1999, in the case of those 
services operating under the expanded license. 64 FR 42316 (August 4, 
1999). The proposed amendment was unopposed, and the Office adopted the 
change as a final interim regulation on September 20, 1999. 64 FR 50758 
(September 20, 1999).
    Subsequently, the National Association of Broadcasters (``NAB'') 
filed a petition with the Copyright Office, seeking an extension of the 
October 15 deadline for filing the initial notices to December 1, 1999. 
NAB made this request because it believed that many potentially 
affected parties were unaware of the need to file an initial notice by 
the October 15, 1999, date, and consequently, missed the filing 
deadline. See 64 FR 59140 (November 2, 1999). Since that date, the 
Copyright Office has received several hundred initial notices from non-
subscription services that are currently operating under the section 
114 license and expects additional filings to continue. Thus, it 
appears that many of the potentially affected parties were unaware of 
the rule change that set a date certain by which these services had to 
file an initial notice of digital transmission of sound recordings.
    In recognition of the apparent breakdown in the process to 
disseminate the information regarding

[[Page 66392]]

the filing requirement to those parties most affected by the interim 
rule change and the lack of any comments opposing the extension of the 
filing date, the Office is amending its interim regulation in 
accordance with NAB's suggestion and adopting the proposed December 1, 
1999, date.
    A service should be aware that the date-specific filing deadline 
for non-subscription services is significant only if it has made a 
digital transmission under the statutory license prior to that filing 
date. Any preexisting entity, just as any new entity which chooses to 
make use of the license at a future time, may file its initial notice 
after these dates, so long as it 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 considers the effect of a proposed amendment on small 
businesses. For that reason, the Register is amending yet again 37 CFR 
201.35(f) in order to allow small business entities that are eligible 
for the statutory license to make a timely filing of its initial notice 
of digital transmission. The Register sought the amendment at the 
request of the NAB, an organization that represents the interests of 
numerous small broadcasters who were heretofore unaware of the filing 

List of Subjects in 37 CFR Part 201


Final Interim Regulation

    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 date ``October 15'' 
and inserting in its place ``December 1''.

    Dated: November 18, 1999.
Marybeth Peters,
Register of Copyrights.
James H. Billington,
The Librarian of Congress.
[FR Doc. 99-30928 Filed 11-24-99; 8:45 am]