[Federal Register: February 3, 2004 (Volume 69, Number 22)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
LIBRARY OF CONGRESS
[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:
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.
[FR Doc. 04-2147 Filed 2-2-04; 8:45 am]
BILLING CODE 1410-33-P