Procedural Regulations for the Copyright Royalty Board, 53325-53331 [E6-14893]

Agencies

• Copyright Royalty Board, Library of Congress
• Library of Congress
• Copyright Royalty Board

[Federal Register Volume 71, Number 175 (Monday, September 11, 2006)]
[Rules and Regulations]
[Pages 53325-53331]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-14893]


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LIBRARY OF CONGRESS

Copyright Royalty Board

37 CFR Chapter III

[Docket No. RM 2005-1]


Procedural Regulations for the Copyright Royalty Board

AGENCY: Copyright Royalty Board, Library of Congress.

[[Page 53326]]


ACTION: Final rule with request for comments.

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SUMMARY: The Copyright Royalty Judges, on behalf of the Copyright 
Royalty Board, are adopting amendments to the procedural regulations 
governing the practices and procedures of the Copyright Royalty Judges 
in royalty rate and distribution proceedings.

DATES: These rules become effective on September 11, 2006.
    Written comments should be received no later than November 13, 
2006.

ADDRESSES: If hand delivered by a private party, an original and five 
copies of comments must be brought to the Copyright Office Public 
Information Office in the James Madison Memorial Building, Room LM-430, 
101 Independence Avenue, SE., Monday through Friday, between 8:30 a.m. 
and 5 p.m., and the envelope must be addressed as follows: Copyright 
Royalty Board, Library of Congress, James Madison Memorial Building, 
101 Independence Avenue, SE., Washington, DC 20559-6000. If delivered 
by a commercial courier (excluding overnight delivery services such as 
Federal Express, United Parcel Service and similar overnight delivery 
services), an original and five copies of comments must be delivered to 
the Congressional Courier Acceptance Site located at 2nd and D Street, 
NE., Monday through Friday, between 8:30 a.m. and 4 p.m., and the 
envelope must be addressed as follows: Copyright Royalty Board, Library 
of Congress, James Madison Memorial Building, 101 Independence Avenue, 
SE., Washington, DC 20559-6000. If sent by mail (including overnight 
delivery using United States Postal Service Express Mail), an original 
and five copies of comments must be addressed to: Copyright Royalty 
Board, 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.

FOR FURTHER INFORMATION CONTACT: Gina Giuffreda, Attorney-Advisor, or 
Abioye E. Oyewole, CRB Program Specialist. Telephone (202) 707-7658. 
Telefax (202) 252-3423.

SUPPLEMENTARY INFORMATION: On November 30, 2004, the President signed 
into law the Copyright Royalty and Distribution Reform Act of 2004. 
Public Law 108-419, 118 Stat. 2341. The Act changed the body 
responsible for adjusting royalty rates and making royalty 
distributions under the various statutory licenses of the Copyright Act 
from the Copyright Arbitration Royalty Panels to the Copyright Royalty 
Judges. This change, along with others to the royalty rate and 
distribution process, required adoption of new procedural rules. This 
task was accomplished by the Interim Chief Copyright Royalty Judge who, 
pursuant to amended 17 U.S.C. 803(b)(6)(A) published procedural 
regulations on May 31, 2005. See 70 FR 30901 (May 31, 2005).
    As part of the May 31, 2005 publication of regulations, comments 
from interested parties were sought. Initial comments were received 
from representatives of the Phase I copyright owner claimant groups 
that participate in section 111 and section 119 royalty rate and 
distribution proceedings (collectively, ``Copyright Owners''), the 
Local Radio Internet Coalition, the Intercollegiate Broadcasting 
System, the Digital Media Association (``DiMA''), and the Alliance of 
Artists and Recording Companies (``AARC''). Reply comments were 
received from SoundExchange, Inc., DiMA and the Local Radio Internet 
Coalition (jointly), Copyright Owners, and AARC.
    After considering these submissions, the Copyright Royalty Judges, 
on behalf of the Copyright Royalty Board, adopt amendments to the 
procedural rules governing royalty rate and distribution proceedings. 
Interested parties are encouraged to comment on these amendments by the 
submission deadline set forth above.

List of Subjects

37 CFR Part 301

    Copyright, Organization and functions (government agencies).

37 CFR Part 302

    Copyright, Freedom of information, Reporting and recordkeeping 
requirements.

37 CFR Part 350

    Administrative practice and procedure, Copyright, Lawyers.

37 CFR Part 351

    Administrative practice and procedure, Copyright.

37 CFR Part 352

    Administrative practice and procedure, Copyright.

37 CFR Part 353

    Administrative practice and procedure, Copyright.

37 CFR Part 354

    Administrative practice and procedure, Copyright.

37 CFR Part 360

    Cable television, Claims, Copyright, Recordings, Satellites, 
Television.

Final Regulations

0
For the reasons set forth in the preamble, Chapter III of Title 37 of 
the Code of Federal Regulations is amended to read as follows:

PART 301--ORGANIZATION

0
1. The authority citation for part 301 continues to read as follows:

    Authority: 17 U.S.C. 801.

Sec.  301.2  [Amended]

0
2. Section 301.2 is amended as follows:
0
a. In paragraph (b), by removing ``Room LM-401 of the'' and adding 
``the Copyright Office Public Information Office, Room LM-401 in the'' 
in its place and by removing ``LM-401,'' after ``Building,''; and
0
b. In paragraph (c), by removing ``LM-403,''.


Sec.  301.3  [Removed]

0
3. Remove Sec.  301.3.

0
4. Revise part 302 to read as follows:

PART 302--PUBLIC ACCESS TO RECORDS

Sec.
302.1 Public records and access.
302.2 Fees.

    Authority: 5 U.S.C. 522.


Sec.  302.1  Public records and access.

    (a) Inspection. Records of proceedings before the Board will be 
available for public inspection at the Copyright Royalty Board offices.
    (b) Requests. Requests for access to records must be directed to 
the Copyright Royalty Board. No requests for information or access to 
records shall be directed to or accepted by a Copyright Royalty Judge. 
Access to records is only available by appointment.


Sec.  302.2  Fees.

    For services rendered in connection with document location, 
reproduction, etc., fees shall apply in accordance with Sec.  201.3 of 
this title.

Subchapter B--Copyright Royalty Judges Rules and Procedures

0
5. Revise heading of Subchapter B as set forth above.

[[Page 53327]]

PART 350--GENERAL ADMINISTRATIVE PROVISIONS

0
6. The authority citation for part 350 continues to read as follows:

    Authority: 17 U.S.C. 803.


Sec.  350.1  [Amended]

0
7. Section 350.1 is amended by removing ``Board'' and adding ``Judges'' 
in its place.

0
8. Revise Sec.  350.2 to read as follows:


Sec.  350.2  Representation.

    Individual parties in proceedings before the Judges may represent 
themselves or be represented by an attorney. All other parties must be 
represented by an attorney. Cf. Rule 49(c)(11) of the Rules of the 
District of Columbia Court of Appeals. The appearance of an attorney on 
behalf of any party constitutes a representation that the attorney is a 
member of the bar, in one or more states, in good standing.


Sec.  350.3  [Amended]

0
9. Section 350.3 is amended by removing ``Board'' and adding ``Judges'' 
in its place.

0
10. Section 350.4 is amended as follows:
0
a. By revising paragraph (a);
0
b. In paragraph (b), by removing ``Board'' and adding ``the Copyright 
Royalty Judges'' in its place;
0
c. By revising paragraph (e)(1);
0
d. In paragraph (e)(2), by removing ``address and telephone number.'' 
and adding ``full name, mailing address, e-mail address (if any), 
telephone number, and facsimile number (if any).'' in its place;
0
e. By removing paragraph (e)(3);
0
f. In paragraph (f), by removing ``seven'' and adding ``five'' in its 
place and by removing ``five'' and adding ``four'' in its place; and
0
g. In paragraph (g), by removing ``Board will compile'' and adding 
``Judges will compile'' in its place, by removing ``by the Board,'' and 
adding ``by the Copyright Royalty Judges,'' in its place, and by 
removing ``notify the Board'' and adding ``notify the Copyright Royalty 
Judges'' in its place.
    The revisions to Sec.  350.4 read as follows:


Sec.  350.4  Filing and service.

    (a) Filing of pleadings. For all filings, the submitting party 
shall deliver an original, five paper copies, and one electronic copy 
in Portable Document Format (PDF) on compact disk (an optical data 
storage medium such as a CD-ROM, CD-R or CD-RW) or floppy diskette to 
the Copyright Royalty Board in accordance with the provisions set forth 
in Sec.  301.2 of this chapter. In no case shall a party tender any 
document by facsimile transmission, except with the prior express 
authorization of the Copyright Royalty Judges.
* * * * *
    (e) Subscription--(1) Parties represented by counsel. The original 
of all documents filed by any party represented by counsel shall be 
signed by at least one attorney of record and shall list the attorney's 
full name, mailing address, e-mail address (if any), telephone number, 
facsimile number (if any), and a state bar identification number. 
Submissions signed by an attorney for a party need not be verified or 
accompanied by an affidavit. The signature of an attorney constitutes 
certification that to the best of the person's knowledge, information, 
and belief, formed after an inquiry reasonable under the circumstances:
    (i) It is not being presented for any improper purpose, such as to 
harass or to cause unnecessary delay or needless increase in the cost 
of litigation;
    (ii) The claims, defenses, and other legal contentions therein are 
warranted by existing law or by a nonfrivolous argument for the 
extension, modification, or reversal of existing law or the 
establishment of new law;
    (iii) The allegations and other factual contentions have 
evidentiary support or, if specifically so identified, are likely to 
have evidentiary support after a reasonable opportunity for further 
investigation or discovery; and
    (iv) The denials of factual contentions are warranted on the 
evidence or, if specifically so identified, are reasonably based on a 
lack of information or belief.
* * * * *

0
11. Section 350.5 is amended as follows:
0
a. In paragraph (a) introductory text, by removing ``Board'' and adding 
``Judges'' in its place and by removing ``Board's'' and adding 
``Copyright Royalty Judges''' in its place;
0
b. In paragraph (a)(3), by adding ``Copyright Royalty'' before 
``Board's'';
0
c. In paragraph (a)(4), by adding ``the date designated for the 
observance of'' after ``means'';
0
d. By revising the introductory text of paragraph (b);
0
e. By revising paragraph (b)(4);
0
f. In paragraph (b)(5), by removing ``sought.'' and adding ``sought; 
and'' in its place; and
0
g. By adding a new paragraph (b)(6).
    The additions and revisions to Sec.  350.5 read as follows:


Sec.  350.5  Time.

* * * * *
    (b) Extensions. A party seeking an extension must do so by written 
motion. Prior to filing such a motion, a party must attempt to obtain 
consent from the other parties to the proceeding. An extension motion 
must state:
* * * * *
    (4) The reason or reasons why there is good cause for the delay;
* * * * *
    (6) The attempts that have been made to obtain consent from the 
other parties to the proceeding and the position of the other parties 
on the motion.


Sec.  350.6  [Amended]

0
12. Section 350.6 is amended by removing ``Board'' and adding 
``Judges'' in its place.

PART 351--PROCEEDINGS

0
13. The authority citation for part 351 continues to read as follows:

    Authority: 17 U.S.C. 803, 805.

Sec.  351.1  [Amended]

0
14. Section 351.1 is amended as follows:
0
a. In paragraph (a), by removing ``Board'' and adding ``Judges'' in its 
place;
0
b. In paragraph (b)(1)(i)(A), by adding ``and'' after ``(if any);'';
0
c. In paragraph (b)(1)(i)(B), by removing ``proceeding; and'' and 
adding ``proceeding.'' in its place;
0
d. By removing paragraph (b)(1)(i)(C);
0
e. In paragraph (b)(1)(ii)(C), by adding ``and'' after ``proceeding;''
0
f. By removing paragraph (b)(1)(ii)(D);
0
g. By redesignating paragraph (b)(1)(ii)(E) as paragraph (b)(1)(ii)(D);
0
h. In paragraph (b)(2)(i)(B), by adding ``and'' after ``both;'';
0
i. In paragraph (b)(2)(i)(C), by removing ``proceeding; and'' and 
adding ``proceeding.'' in its place;
0
j. By removing paragraph (b)(2)(i)(D);
0
k. In paragraph (b)(2)(ii)(D), by adding ``and'' after ``proceeding;'';
0
l. By removing paragraph (b)(2)(ii)(E);
0
m. By redesignating paragraph (b)(2)(ii)(F) as paragraph (b)(2)(ii)(E);
0
n. In paragraph (b)(4), by removing ``less than $10,000,'' and adding 
``$10,000 or less,'' in its place and by removing ``Board'' and adding 
``Copyright Royalty Judges'' in its place;
0
o. In paragraph (c), by removing ``Board unless'' and adding ``Judges 
unless'' in its place, by removing ``Board has determined that'' and 
adding ``Copyright Royalty Judges determine'', and by removing ``that 
the petition'' and adding ``the petition'' in its place; and
0
p. In paragraph (d), by removing ``Board'' and adding ``Judges'' in its 
place.

[[Page 53328]]

Sec.  351.2  [Amended]

0
15. Section 351.2 is amended as follows:
0
a. In paragraph (a), by removing ``Within thirty-five business days 
from the date a proceeding is initiated by notice in the Federal 
Register pursuant to Sec.  351.1(a), the Copyright Royalty Board'' and 
adding ``After the date for filing petitions to participate in a 
proceeding, the Copyright Royalty Judges'' in its place and by removing 
``Board'' and adding ``Copyright Royalty Judges'' in its place;
0
b. In paragraph (b)(1), by removing ``To'' and adding ``Pursuant to 17 
U.S.C. 801(b)(7)(A), to'' in its place, by removing ``or partial 
settlement'', and by removing ``a full or partial'' and adding ``the'' 
in its place; and
0
c. In paragraph (b)(2), by removing ``Board will'' and adding ``Judges, 
pursuant to 17 U.S.C. 801(b)(7)(A), will'' in its place, by removing 
``The Board may'' and adding ``If an objection to the adoption of an 
agreement is filed, the Copyright Royalty Judges may'', and by removing 
``Board concludes'' and adding ``Copyright Royalty Judges conclude'' in 
its place.

0
16. Section 351.3 is amended as follows:
0
a. In paragraph (a), by removing ``Board'' each place it appears and 
adding ``Judges'' in its place and by removing ``Sec. Sec.  351.4'' and 
adding ``Sec. Sec.  351.5'' in its place;
0
b. In paragraph (b)(1), by removing ``Board'' and adding ``Judges'' in 
its place;
0
c. In paragraph (b)(2), by removing ``Board determines'' and adding 
``Judges determine'' in its place and by removing ``Board shall'' and 
adding ``Judges shall'' in its place; and
0
d. By revising paragraph (c).
    The revisions to Sec.  351.3 read as follows:


Sec.  351.3  Controversy and further proceedings.

* * * * *
    (c) Paper proceedings--(1) Standard. The procedure under this 
paragraph (c) will be applied in cases in which there is no genuine 
issue of material fact, there is no need for evidentiary hearings, and 
all participants in the proceeding agree in writing to the procedure. 
In the absence of an agreement in writing among all participants, this 
procedure may be applied by the Copyright Royalty Judges either on the 
motion of a party or by the Copyright Royalty Judges sua sponte.
    (2) Procedure. Paper proceedings will be decided on the basis of 
the filing of the written direct statement by the participant (or 
participant group filing a joint petition), the response by any 
opposing participant, and one optional reply by a participant who has 
filed a written direct statement.

0
17. Section 351.4 is amended as follows:
0
a. In paragraph (a), by removing ``Board'' and adding ``Judges'' in its 
place;
0
b. By revising the heading to paragraph (b);
0
c. In paragraph (b)(2), by revising the paragraph heading, by removing 
``designated testimony'' and adding ``past records and/or testimony'' 
in its place, and by removing ``of that testimony''; and
0
d. By removing paragraph (b)(4).
    The revisions to Sec.  351.4 read as follows:


Sec.  351.4  Written direct statements.

* * * * *
    (b) Required content.
* * * * *
    (2) Designated past records and testimony. * * *
* * * * *

0
18. Section 351.5 is revised to read as follows:


Sec.  351.5  Discovery in royalty rate proceedings.

    (a) Schedule. Following the submission to the Copyright Royalty 
Judges of written direct and rebuttal statements by the participants in 
a royalty rate proceeding, and after conferring with the participants, 
the Copyright Royalty Judges will issue a discovery schedule.
    (b) Document production, depositions and interrogatories-- (1) 
Document production. A participant in a royalty rate proceeding may 
request of an opposing participant nonprivileged documents that are 
directly related to the written direct statement or written rebuttal 
statement of that participant. Broad, nonspecific discovery requests 
are not acceptable. All documents offered in response to a discovery 
request must be furnished in as organized and useable form as possible. 
Any objection to a request for production shall be resolved by a motion 
or request to compel production. The motion must include a statement 
that the parties had conferred and were unable to resolve the matter.
    (2) Depositions and interrogatories. In a proceeding to determine 
royalty rates, the participants entitled to receive royalties shall 
collectively be permitted to take no more than 10 depositions and 
secure responses to no more than 25 interrogatories. Similarly, the 
participants obligated to pay royalties shall collectively be permitted 
to take no more than 10 depositions and secure responses to no more 
than 25 interrogatories. Parties may obtain such discovery regarding 
any matter, not privileged, that is relevant to the claim or defense of 
any party. Relevant information need not be admissible at hearing if 
the discovery by means of depositions and interrogatories appears 
reasonably calculated to lead to the discovery of admissible evidence.
    (c) Motions to request other relevant information and materials. 
(1) In any royalty rate proceeding scheduled to commence prior to 
January 1, 2011, a participant may, by means of written or oral motion 
on the record, request of an opposing participant or witness other 
relevant information and materials. The Copyright Royalty Judges will 
allow such request only if they determine that, absent the discovery 
sought, their ability to achieve a just resolution of the proceeding 
would be substantially impaired.
    (2) In determining whether such discovery motions will be granted, 
the Copyright Royalty Judges may consider--
    (i) Whether the burden or expense of producing the requested 
information or materials outweighs the likely benefit, taking into 
account the needs and resources of the participants, the importance of 
the issues at stake, and the probative value of the requested 
information or materials in resolving such issues;
    (ii) Whether the requested information or materials would be 
unreasonably cumulative or duplicative, or are obtainable from another 
source that is more convenient, less burdensome, or less expensive; and
    (iii) Whether the participant seeking the discovery had an ample 
opportunity by discovery in the proceeding or by other means to obtain 
the information sought.

0
19. Section 351.6 is revised to read as follows:


Sec.  351.6  Discovery in distribution proceedings.

    In distribution proceedings, the Copyright Royalty Judges shall 
designate a 45-day period beginning with the filing of written direct 
statements within which parties may request of an opposing party 
nonprivileged underlying documents related to the written exhibits and 
testimony. However, all parties shall be given a reasonable opportunity 
to conduct discovery on amended statements.

[[Page 53329]]

Sec.  351.7  [Amended]

0
20. Section 351.7 is amended by removing ``21-days'' and adding ``21 
days'' in its place, by removing ``Board'' each place it appears and 
adding ``Judges'' in its place, and by adding ``written'' before 
``Joint''.


Sec.  351.8  [Amended]

0
21. Section 351.8 is amended by removing ``Board'' each place it 
appears and adding ``Copyright Royalty Judges'' in its place and by 
removing ``hearing.'' and adding ``hearing and to provide for the 
submission of pre-hearing written legal arguments.'' in its place.

0
22. Section 351.9 is amended as follows:
0
a. By revising paragraph (a);
0
b. By revising the introductory text of paragraph (b);
0
c. By removing paragraph (b)(1);
0
d. By redesignating paragraphs (b)(2) and (b)(3) as paragraphs (b)(1) 
and (b)(2), respectively;
0
e. In newly redesignated paragraph (b)(2), by removing ``Board's'' and 
adding ``Copyright Royalty Judges' '' in its place and by removing 
``whether there are an even number of Judges sitting at the hearing,'';
0
f. By removing paragraphs (b)(4) and (b)(5); and
0
g. By adding new paragraphs (d) through (f).
    The additions and revisions to Sec.  351.9 read as follows:


Sec.  351.9  Conduct of hearings.

    (a) By panels. Subject to paragraph (b) of this section, hearings 
will be conducted by Copyright Royalty Judges sitting en banc.
    (b) Role of Chief Judge. The Chief Copyright Royalty Judge, or an 
individual Copyright Royalty Judge designated by the Chief Judge, may 
preside over such collateral and administrative proceedings, and over 
such proceedings under section 803(b)(1) through (5) of the Copyright 
Act, as the Chief Judge considers appropriate. The Chief Judge, or an 
individual Copyright Royalty Judge designated by the Chief Judge, shall 
have the responsibility for:
* * * * *
    (d) Notice of witnesses and prior exchange of exhibits. Each party 
must provide all other parties notice of the witnesses who are to be 
called to testify at least one week in advance of such testimony, 
unless modified by applicable trial order. Parties must exchange 
exhibits at least one day in advance of being offered into evidence at 
a hearing, unless modified by applicable trial order.
    (e) Subpoenas. The parties may move the Copyright Royalty Judges to 
issue a subpoena. The object of the subpoena shall be served with the 
motion and may appear in response to the motion.
    (f) Witnesses sequestered. Subject to applicable trial order, 
witnesses, other than party representatives, may not be permitted to 
listen to any testimony and may not be allowed to review a transcript 
of any prior testimony.

0
23. Section 351.10 is amended as follows:
0
a. By revising paragraph (a);
0
b. In paragraph (b), by removing ``written direct statement'' and 
adding ``written statements'' in its place and by removing ``Board'' 
and adding ``Copyright Royalty Judges'' in its place;
0
c. By revising paragraph (c)(1);
0
d. In paragraph (c)(2), by removing ``a document'' and adding ``an 
exhibit'' in its place;
0
e. By revising paragraph (c)(3);
0
f. By revising paragraph (d);
0
g. By revising the introductory text to paragraph (e);
0
h. By removing paragraph (e)(1); and
0
i. By revising paragraphs (f) and (g).
    The revisions to Sec.  351.10 read as follows:


Sec.  351.10  Evidence.

    (a) Admissibility. All evidence that is relevant and not unduly 
repetitious or privileged, shall be admissible. Hearsay may be admitted 
to the extent deemed appropriate by the Copyright Royalty Judges. 
Written testimony and exhibits must be authenticated or identified in 
order to be admissible as evidence. The requirement of authentication 
or identification as a condition precedent to admissibility is 
satisfied by evidence sufficient to support a finding that the matter 
in question is what its proponent claims. Extrinsic evidence of 
authenticity as a condition precedent to admissibility is not required 
with respect to materials that can be self-authenticated under Rule 902 
of the Federal Rules of Evidence such as certain public records. No 
evidence, including exhibits, may be submitted without a sponsoring 
witness, except for good cause shown.
* * * * *
    (c) Exhibits--(1) Submission. Writings, recordings and photographs 
shall be presented as exhibits and marked by the presenting party. 
``Writings'' and ``recordings'' consist of letters, words, or numbers, 
or their equivalent, set down by handwriting, typewriting, printing, 
photostating, photographing, magnetic impulse, mechanical or electronic 
recording, or other form of data compilation. ``Photographs'' include 
still photographs, video tapes, and motion pictures.
* * * * *
    (3) Summary exhibits. The contents of voluminous writings, 
recordings, or photographs which cannot conveniently be examined in the 
hearing may be presented in the form of a chart, summary, or 
calculation. The originals, or duplicates, shall be made available for 
examination or copying, or both, by other parties at a reasonable time 
and place. The Copyright Royalty Judges may order that they be produced 
in the hearing.
    (d) Copies. Anyone presenting exhibits as evidence must present 
copies to all other participants in the proceedings, or their 
attorneys, and afford them an opportunity to examine the exhibits in 
their entirety and offer into evidence any other portion that may be 
considered material and relevant.
    (e) Introduction of studies and analyses. If studies or analyses 
are offered in evidence, they shall state clearly the study plan, the 
principles and methods underlying the study, all relevant assumptions, 
all variables considered in the analysis, the techniques of data 
collection, the techniques of estimation and testing, and the results 
of the study's actual estimates and tests presented in a format 
commonly accepted within the relevant field of expertise implicated by 
the study. The facts and judgments upon which conclusions are based 
shall be stated clearly, together with any alternative courses of 
action considered. Summarized descriptions of input data, tabulations 
of input data and the input data themselves shall be retained.
    (f) Objections. Parties are entitled to raise objections to 
evidence on any proper ground during the course of the hearing and to 
raise an objection that an opposing party has not furnished 
unprivileged underlying documents.
    (g) New exhibits for use in cross-examination. Exhibits that have 
not been identified and exchanged in advance may be shown to a witness 
on cross-examination. However, copies of such exhibits must be 
distributed to the Copyright Royalty Judges and to the other 
participants before being shown to the witness at the time of cross-
examination, unless the Copyright Royalty Judges direct otherwise. Such 
exhibits can be used solely to impeach the witness's direct testimony.


Sec.  351.11  [Amended]

0
24. Section 351.11 is amended by removing ``Board upon'' and adding

[[Page 53330]]

``Judges upon'' in its place and by removing ``by the Board.'' and 
adding ``by the Copyright Royalty Judges.'' in its place.


Sec.  351.12  [Removed]

0
25. Remove Sec.  351.12.


Sec.  351.13 through Sec.  351.15  [Redesignated as Sec.  351.12 
through Sec.  351.14]

0
26. Redesignate Sec.  351.13 through Sec.  351.15 as Sec.  351.12 
through Sec.  351.14, respectively, and revise the newly redesignated 
Sec.  351.12 through Sec.  351.14 to read as follows:


Sec.  351.12  Closing the record.

    To close the record of a proceeding, the presiding Judge shall make 
an announcement that the taking of evidence has concluded.


Sec.  351.13  Transcript and record.

    (a) An official reporter for the recording and transcribing of 
hearings shall be designated by the Copyright Royalty Judges. Anyone 
wishing to inspect the transcript of a hearing may do so at the offices 
of the Copyright Royalty Board.
    (b) The transcript of testimony and written statements, except 
those portions to which an objection has been sustained, and all 
exhibits, documents and other items admitted in the course of a 
proceeding shall constitute the official written record. The written 
record, along with the Copyright Royalty Judges' final determination, 
shall be available at the Copyright Royalty Board's offices for public 
inspection and copying.


Sec.  351.14  Proposed findings of fact and conclusions of law.

    (a) Any party to the proceeding may file proposed findings of fact 
and conclusions, briefs or memoranda of law, or may be directed by the 
Copyright Royalty Judges to do so. Such filings, and any replies to 
them, shall take place after the record has been closed.
    (b) Failure to file when directed to do so shall be considered a 
waiver of the right to participate further in the proceeding unless 
good cause for the failure is shown. A party waives any objection to a 
provision in the determination unless the provision conflicts with a 
proposed finding of fact or conclusion of law filed by the party.
    (c) Proposed findings of fact shall be numbered by paragraph and 
include all basic evidentiary facts developed on the record used to 
support proposed conclusions, and shall contain appropriate citations 
to the record for each evidentiary fact. Proposed conclusions shall be 
stated and numbered by paragraph separately. Failure to comply with 
this paragraph (c) may result in the offending paragraph being 
stricken.

PART 352--DETERMINATIONS

0
27. The authority citation for part 352 continues to read as follows:

    Authority: 17 U.S.C. 803.


Sec.  352.1  [Amended]

0
28. Section 352.1 is amended by removing ``of the Board'' after 
``determinations'' and by removing ``by the Board'' after 
``determination''.


Sec.  352.2  [Amended]

0
29. Section 352.2 is amended by removing ``Board'' and adding 
``Judges'' in its place, by removing ``its'' and adding ``their'' in 
its place, and by adding ``The date the determination is ``issued'' 
refers to the date of the order.'' after ``first occurs.''
0
30. Section 352.3 is revised to read as follows:


Sec.  352.3  Final determinations.

    Unless a motion for a rehearing is timely filed within 15 days, the 
determination by the Copyright Royalty Judges pursuant to 17 U.S.C. 
803(c) in a proceeding is final when it is issued.

PART 353--REHEARING

0
31. The authority citation for part 353 continues to read as follows:

    Authority: 17 U.S.C. 803.


0
32. Section 353.1 is revised to read as follows:


Sec.  353.1  When granted.

    A motion for rehearing may be filed by any participant in the 
relevant proceeding. The Copyright Royalty Judges may grant rehearing 
upon a showing that any aspect of the determination may be erroneous.


Sec.  353.3  [Amended]

0
33. Section 353.3 is amended by removing ``Board'' each place it 
appears and adding ``Judges'' in its place and by removing ``order 
either denying the motion or ordering further proceedings'' and adding 
``appropriate order'' in its place.

0
34. Section 353.4 is revised to read as follows:


Sec.  353.4  Filing deadline.

    A motion for rehearing must be filed within 15 days after the date 
on which the Copyright Royalty Judges issue an initial determination.


Sec.  353.5  [Amended]

0
35. Section 353.5 is amended by removing ``Board'' and adding 
``Judges'' in its place and by removing ``However, participants should 
be aware that nonparticipation'' and adding ``Nonparticipation'' in its 
place.

PART 354--SUBMISSIONS TO THE REGISTER OF COPYRIGHTS

0
36. The authority citation for part 354 continues to read as follows:

    Authority: 17 U.S.C. 802


0
37. Section 354.1 is revised to read as follows:


Sec.  354.1  Material questions of copyright law.

    (a) Discretionary referrals. The Copyright Royalty Judges may seek 
guidance from the Register of Copyrights with respect to a material 
question of substantive law, concerning an interpretation or 
construction of those provisions of the Copyright Act, that arises in 
the course of their proceedings.
    (b) How presented. A question of substantive law may be referred to 
the Register of Copyrights at the request of one or more of the 
Copyright Royalty Judges. A question of substantive law may also be 
referred to the Register of Copyrights as a request submitted by motion 
of a participant, provided that one or more of the Copyright Royalty 
Judges agrees with the participant's request.
    (1) Referral by Judges. One or more of the Copyright Royalty Judges 
may refer what he or she believes to be a material question of 
substantive law to the Register of Copyrights at any time during a 
proceeding by issuing a written referral that is made part of the 
record of that proceeding. The referral will state the issue(s) to be 
referred and the schedule for the filing of briefs by the parties of 
the issue(s). After the briefs and other relevant materials are 
received, they will be transmitted to the Register of Copyrights.
    (2) Motion by participant. Any participant may submit a motion to 
the Copyright Royalty Judges (but not to the Register of Copyrights) 
requesting their referral to the Register of Copyrights a question that 
the participant believes would be suitable for referral under paragraph 
(a) of this section.
    (i) Content. The motion should be captioned ``Motion of 
[Participant(s)] Requesting Referral of Material Question of 
Substantive Law.'' The motion should set forth, at the outset, the 
precise legal question for which the moving party is seeking 
interlocutory referral to the

[[Page 53331]]

Register of Copyrights. The motion should then proceed to explain, with 
brevity, why the issue meets the criteria for potential referral under 
paragraph (a) of this section and why the interests of fair and 
efficient adjudication would be best served by obtaining interlocutory 
guidance from the Register of Copyrights. The motion should not include 
argument on the merits of the issue, but may include a suggested 
schedule of briefing that would make reasonable provision for comments 
and legal arguments, in such a way as to avoid delay and duplication.
    (ii) Time of motion. A motion for referral of a material question 
of substantive law to the Register of Copyrights should be filed as 
soon as possible in the relevant proceeding, but no later than any 
deadline set by the Copyright Royalty Judges.
    (iii) Action on motion--(A) Referral granted. Upon consideration of 
a Motion Requesting Referral of Material Question of Substantive Law, 
if one or more of the Copyright Royalty Judges agrees with the request, 
the Chief Judge shall issue an appropriate referral. The referral will 
state the issue(s) to be referred and the schedule for the filing of 
briefs by the parties of the issue(s). After the briefs and other 
relevant materials are received, they will be transmitted to the 
Register of Copyrights.
    (B) Referral denied. If none of the Copyright Royalty Judges agrees 
with the request, the Board will issue an order denying the request 
which will provide the basis for the decision. A copy of any order 
denying a Motion Requesting Referral of Material Question of 
Substantive Law will be transmitted to the Register of Copyrights.
    (c) No effect on proceedings. The issuance of a request to the 
Register of Copyrights for an interpretive ruling under this part does 
not delay or otherwise affect the schedule of the participants' 
obligations in the relevant ongoing proceeding, unless that schedule or 
those obligations are expressly changed by order of the Copyright 
Royalty Judges.
    (d) Binding effect; time limit. The Copyright Royalty Judges will 
not issue a final determination in a proceeding where the discretionary 
referral of a question to the Register of Copyrights under this part is 
pending, unless the Register has not delivered the decision to the 
Copyright Royalty Judges within 14 days after the Register receives all 
of the briefs of the participants. If the decision of the Register of 
Copyrights is timely delivered to the Copyright Royalty Judges, the 
decision will be included in the record of the proceeding. The legal 
interpretation embodied in the timely delivered response of the 
Register of Copyrights in resolving material questions of substantive 
law is binding upon the Copyright Royalty Judges and will be applied by 
them in their final determination in the relevant proceeding.


Sec.  354.2  [Amended]

0
38. Section 354.2 is amended as follows:
0
a. In paragraph (a), by removing ``Board'' each place it appears and 
adding ``Judges'' in its place; and
0
b. In paragraph (b), by removing ``Board'' each place it appears and 
adding ``Judges'' in its place and by adding ``The legal interpretation 
embodied in the timely delivered response of the Register of Copyrights 
in resolving material questions of substantive law is binding upon the 
Copyright Royalty Judges and will be applied by them in their final 
determination in the relevant proceeding.'' after ``expired.''.


Sec.  354.3  [Amended]

0
39. Section 354.3 is amended by removing ``Board'' each place it 
appears and adding ``Judges'' in its place.


Sec.  354.4 through 354.5  [Removed]

0
40. Remove Sec.  354.4 through Sec.  354.5.

Subchapter C--Submission of Royalty Claims

0
41. Add a new Subchapter C as set forth above and redesignate Part 360 
from Subchapter B to Subchapter C.

PART 360--FILING OF CLAIMS TO ROYALTY FEES COLLECTED UNDER 
COMPULSORY LICENSE

0
42. The authority citation for part 360 continues to read in part as 
follows:

    Authority: 17 U.S.C. 801, 803, 805.

* * * * *


Sec.  360.4  [Amended]

0
43. Section 360.4 is amended as follows:
0
a. In paragraph (a)(2), by adding ``Copyright Office'' before ``Public 
Information Office'' each place it appears, by removing ``located at 
the U.S. Copyright Office,'' and adding ``in the'' in its place, and by 
removing ``LM-401,'' after ``Building,''; and
0
b. In paragraph (a)(3), by removing ``LM-403,''.


Sec.  360.13  [Amended]

0
44. Section 360.13 is amended as follows:
0
a. In paragraph (a)(2), by adding ``Copyright Office'' before ``Public 
Information Office'' each place it appears, by removing ``located at 
the U.S. Copyright Office,'' and adding ``in the'' in its place, and by 
removing ``LM-401,'' after ``Building,''; and
0
b. In paragraph (a)(3), by removing ``LM-403,''.


Sec.  360.24  [Amended]

0
45. Section 360.24 is amended as follows:
0
a. In paragraph (a)(2), by adding ``Copyright Office'' before ``Public 
Information Office'' each place it appears, by removing ``located at 
the U.S. Copyright Office,'' and adding ``in the'' in its place, and by 
removing ``LM-401,'' after ``Building,''; and
0
b. In paragraph (a)(3), by removing ``LM-403,''.

    Dated: August 29, 2006.
James Scott Sledge,
Chief Copyright Royalty Judge, Copyright Royalty Board.
    Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. E6-14893 Filed 9-8-06; 8:45 am]
BILLING CODE 1410-72-P