[Federal Register: March 15, 2005 (Volume 70, Number 49)]
[Page 12631-12632]

Copyright Office

37 CFR Part 270
[Docket No. RM 2005-2]

Reports of Use of Sound Recordings Under Statutory License

AGENCY: Copyright Office, Library of Congress

ACTION: Notice of proposed rulemaking


The Copyright Office of the Library of Congress is proposing amendments to the rules governing reports of use of sound recordings under the statutory license for preexisting subscription services.


Comments are due no later than April 14, 2005.


If hand delivered by a private party, an original and ten copies of any comment should be brought to Room LM-401 of the James Madison Memorial Building between 8:30 a.m. and 5 p.m. and the envelope should be addressed as follows: Copyright Office General Counsel/CARP, U.S. Copyright Office, James Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., Washington, DC 20559-6000. If hand delivered by a commercial courier, an original and ten copies of any comment must be delivered to the Congressional Courier Acceptance Site located at Second and D Streets, NE., Washington, DC, between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Copyright Office General Counsel/CARP, Room LM-403, James Madison Memorial Building, 101 Independence Avenue, SE., Washington, DC. If sent by mail (including overnight delivery using U.S. Postal Service Express Mail), an original and ten copies of any comment should be addressed to: Copyright Arbitration Royalty Panel (CARP) P.O. Box 70977, Southwest Station, Washington, DC 20024-0977. Comments may not be delivered by means of overnight delivery services such as Federal Express, United Parcel Service, etc., due to delays in processing receipt of such deliveries.



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. 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. 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 Notice of Proposed Rulemaking (“NPRM”) 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 Sec. Sec. 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. Today's NPRM fulfills that directive.

Petitioners request what they describe as “minor adjustments [that] will make the rules more useful to copyright owners and performers and less burdensome on users of copyrighted works.” Petition at 1. The proposed changes can be generally described as follows. First, to provide copyright owners with a more complete report of the use of their works, petitioners request that preexisting subscription services report the copyright notice (i.e., the “P line”) accompanying record albums or sound recordings, where it is available. Second, petitioners propose to extend the time allowed for filing reports of use to comply with current payment periods for preexisting subscription services. See 68 FR 39837 (July 3, 2003). And third, petitioners propose some technical amendments that, in their view, clarify that the requirements of Sec. 270.2 apply only to preexisting subscription services.

The Office welcomes public comment to the proposed changes.

List of Subjects in Part 270

Copyright, Sound Recordings.

Proposed Regulations

In consideration of the foregoing, the Copyright Office proposes to amend part 270 of 37 CFR to read as follows:


  1. 1. The authority citation for part 270 continues to read as follows:
  2. Authority: 17 U.S.C. 702

  3. Section 270.2 is amended as follows:
    1. By revising paragraph (b)(2);
    2. By revising paragraph (b)(3);
    3. 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;
    4. In paragraph (d) introductory text, by removing “20th” and adding “forty-fifth” in its place; and
    5. By revising paragraph (e).

[[Page 12632]]

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.

* * * * *

(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).

* * * * *

(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.

* * * * *


Dated: March 8, 2005.
Tanya M. Sandros,
Associate General Counsel.