Notice and Recordkeeping for Making and Distributing Phonorecords

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 98-7]

Notice and Recordkeeping for Making and Distributing Phonorecords

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of Inquiry.

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SUMMARY: The Copyright Office of the Library of Congress is requesting

comments on the requirements by which copyright owners shall receive

reasonable notice of the use of their works in the making and

distribution of phonorecords. The Digital Performance Right in Sound

Recordings Act of 1995 requires the Librarian of Congress to establish

these regulations to ensure proper payment to copyright owners for the

use of their works.

DATES: Comments are due October 19, 1998. Reply comments are due

November 18, 1998.

ADDRESSES: If sent by mail, an original and ten copies of the comments,

or the reply comments, should be addressed to: David Carson, General

Counsel, Copyright GC/I&R, PO. Box 70400, Southwest Station,

Washington, DC 20024. If hand delivered, an original and ten copies of

the comments, or the reply comments, should be brought to: Office of

the Copyright General Counsel, James Madison Memorial Building, Room

LM-407, First and Independence Avenue, SE, Washington, DC 20599-6000.

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

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

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

Telefax (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Background

What Is the Digital Performance Right in Sound Recordings Act of 1995?

d Independence Avenue, SE, Washington, DC 20599-6000.

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

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

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

Telefax (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Background

What Is the Digital Performance Right in Sound Recordings Act of 1995?

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

in Sound Recordings Act of 1995 (DPRSRA), Pub. L. 104-39 (1995). Among

other things, this law clarified that the compulsory license for making

and distributing phonorecords includes the distribution of a

phonorecord of a nondramatic musical work by means of a digital

phonorecord delivery. 17 U.S.C. 115(c)(3). A ``digital phonorecord

delivery'' is each individual delivery of a phonorecord by digital

transmission of

a sound recording which results in a specifically identifiable

reproduction by or for any transmission recipient. 17 U.S.C. 115(d), 37

CFR 255.4.

Why Has the Copyright Office Initiated This Rulemaking Proceeding?

The DPRSRA directs the Librarian of Congress to establish

regulations by which the entities availing themselves of this new

license would keep records of their use, make the records available to

the copyright owners, and give notice to the copyright owners of the

use of their works. 17 U.S.C. 115(c)(3)(D). Specifically, sec.

115(c)(3)(D) requires ``The Librarian of Congress (to) establish

requirements by which copyright owners may receive reasonable notice of

the use of their works under this section, and under which records of

use shall be kept and made available by persons making digital

phonorecord deliveries.''

Are There Currently Regulations Governing the Use of the Section 115

Compulsory License?

ly, sec.

115(c)(3)(D) requires ``The Librarian of Congress (to) establish

requirements by which copyright owners may receive reasonable notice of

the use of their works under this section, and under which records of

use shall be kept and made available by persons making digital

phonorecord deliveries.''

Are There Currently Regulations Governing the Use of the Section 115

Compulsory License?

Sections 201.18 and 201.19 of title 37 of the Code of Federal

Regulations, detail how potential compulsory licensees must file a

notice of intention to obtain a compulsory license for making and

distributing phonorecords of nondramatic musical works, how to make

royalty payments to the copyright owners, and how to file statements of

account in compliance with the terms of the sec. 115 license. Although

these rules were promulgated before the passage of the DPRSRA to govern

the making and distribution of physical phonorecords, these regulations

apply equally to compulsory licensees who make digital phonorecord

deliveries.

Can the Regulations in 37 CFR 201.18 and 201.19 Be Amended To

Accommodate the Delivery of Digital Phonorecords and Meet the

Additional Notice and Recordkeeping Requirements in 17 U.S.C.

115(c)(3)(D)?

Section 115(b)(1) of the Copyright Act, 17 United States Code,

requires ``any person who wishes to obtain a compulsory license under

this section * * * (to) serve notice of intention to do so on the

Copyright Owner.'' The section also requires the Copyright Office to

prescribe regulations specifying the form, content, and manner of

service of the notice of intention. Section 201.18 of title 37 of the

Federal Code of Regulations meets this requirement. Similarly, the

regulations in Sec. 201.19 address the requirement that each compulsory

licensee file monthly and annual statements of account for each sec.

115 compulsory license as required under 17 U.S.C. 115(c)(5)

regulations specifying the form, content, and manner of

service of the notice of intention. Section 201.18 of title 37 of the

Federal Code of Regulations meets this requirement. Similarly, the

regulations in Sec. 201.19 address the requirement that each compulsory

licensee file monthly and annual statements of account for each sec.

115 compulsory license as required under 17 U.S.C. 115(c)(5).

These rules, however, were conceived before the dawn of the digital

age, and consequently, may not serve those compulsory licensees who

intend to use the license to make digital phonorecord deliveries. For

instance, 37 CFR 201.19 uses the terms, ``voluntarily distributed,''

and ``phonorecord reserve,'' which, on their face, do not seem to apply

to the delivery of digital phonorecords. Nevertheless, their purpose is

to provide notice to the copyright owner of the use of his or her work

by a compulsory licensee and to ensure proper payment of royalties--the

same purpose underlying the new notice and recordkeeping provision

found in 17 U.S.C. 115(c)(3)(D).

Therefore, the Copyright Office is requesting that interested

parties consider how to amend 37 CFR 201.18 and 201.19 in order to

accommodate the delivery of digital phonorecords, and whether these

rules, if amended to accommodate the delivery of digital phonorecords,

would fulfill the notice and recordkeeping requirements specified in 17

U.S.C. 115(c)(3)(D), in addition to the requirements to file a notice

of intention and monthly as well as annual statements of accounts.

Furthermore, the Office seeks comment on the specific requirement in

sec. 115(c)(3)(D) that the ``persons making digital phonorecord

deliveries'' must keep and make available records of use. Interested

parties who do not believe that Secs. 201.18 and 201.19 can serve as an

appropriate model for the requirements of sec. 115(c)(3)(D) are invited

to propose alternative means of notice and recordkeeping.