Notice of Roundtable Regarding the Section 115 Compulsory License for Making and Distributing Phonorecords, Including Digital Phonorecord Deliveries, 30039-30042 [E7-10363]
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Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices
grantees are to distribute copies of the
Activity and Expenditure Report as
follows:
• The original SF 269A, signed
invoice or list of expenditures and the
Stand Down After Action Report is
mailed to: U.S. Department of Labor,
Procurement Services Center, Room S–
4307, Attn: Cassandra Mitchell, 200
Constitution Avenue, NW., Washington,
DC 20210.
• Original sales receipts of items
purchased with USDOL–VETS funding,
a copy of the SF 269A, signed invoice
or list of expenditures, comparison of
actual versus planned activities and
expenditures, Stand Down After Action
Report, and copies of all PSC 272s sent
to HHS/PMS is to be submitted to the
appropriate DVET/GOTR.
If the DVET/GOTR does not
recommend approval of a particular
expenditure, he/she will notify the
grantee in writing with an explanation
for the disapproval and instruct grantee
to electronically return the funds within
15 calendar days to the HHS/PMS
account if already drawn down. All FY
2007 Stand Down awarded funds must
be electronically drawn down by no
later than November 30, 2007. If Stand
Down funds are not electronically
drawn down by the grantee within 90
days following the above stated due
date, the USDOL may reallocate these
funds for other purposes accordingly.
Any grantee who fails to comply with
guidance set forth in the Stand Down
Special Grant Provisions and reporting
requirements will not be considered
favorably from any future funding from
U.S. Department of Labor Veterans’
Employment and Training Service.
sroberts on PROD1PC70 with NOTICES
VII. Agency Contacts
Questions regarding this
announcement should be directed to the
Director for Veterans’ Employment and
Training/GOTR in your State. Contact
information for each DVET/GOTR is
located in the VETS Staff Directory at
the following webpage: https://
www.dol.gov/vets/aboutvets/contacts/
main.htm or access the directory from
the agency Web site at https://
www.dol.gov/vets.
VIII. Other Information
Current competitive HVRP grantees
are not eligible for a separate noncompetitive Stand Down grant award as
described in this announcement.
Current competitive HVRP grantees are
authorized to utilize existing funds for
Stand Down purposes.
Appendices: (Located on U.S.
Department of Labor, Veterans’
Employment and Training Service
Webpage https://www.dol.gov/vets
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follow link for 2007 Stand Down Grants
and Required Forms listed under
announcements.)
Appendix A: Application for Federal
Assistance SF–424
Appendix B: Budget Information Sheet
SF–424A
Appendix C: Certifications and
Assurances Signature Page
Appendix D: Survey on Ensuring Equal
Opportunity for Applicants
Appendix E: Stand Down After Action
Report
alternative means of submission and
filing requirements.
Signed at Washington, DC, this 23 day of
May, 2007.
Cassandra R. Mitchell
Grant Officer.
[FR Doc. E7–10258 Filed 5–29–07; 8:45 am]
Section 115 of the Copyright Act, title
17 of the United States Code provides a
statutory license for the making and
distribution of phonorecords of
nondramatic musical works.
Historically, the statutory rates have
established the ceiling for the
mechanical licenses issued in the
marketplace. In 1995, Congress passed
the Digital Performance Right in Sound
Recordings Act, Pub. L. No. 104–39, 109
Stat. 336, which amended section 115 to
include the right to distribute a
phonorecord by means of a ‘‘digital
phonorecord delivery’’ (‘‘DPD’’). The
statute includes a definition of a DPD
and explains the process for establishing
rates for these phonorecords. In
addition, it acknowledges the existence
of additional DPDs ‘‘where the
reproduction or distribution of the
phonorecord is incidental to the
transmission which constitutes the
[DPD]’’ 17 U.S.C. 115(c)(3)(D), and
requires that a separate rate be set for
these phonorecords. However, the law
does not identify which DPDs can be
classified as incidental or provide any
guidelines for making this decision.
For this reason, the Copyright Office
published a Notice of Inquiry in the
Federal Register, 66 FR 14099 (March 9,
2001), requesting comment on the
interpretation and application of the
mechanical and digital phonorecord
compulsory license, 17 U.S.C. 115, to
certain digital music services. The
Recording Industry Association of
America (‘‘RIAA’’) had suggested in its
petition for this rulemaking that section
115 be interpreted in such a way as to
cover all reproductions made to operate
services offering On–Demand Streams
and Limited Downloads, as defined in
the March 9, 2001, notice. At about the
same time, RIAA entered into separate
negotiations with the National Music
Publishers Association and the Harry
Fox Agency, Inc. and reached an
agreement concerning several of the
issues involved in the original Notice of
Inquiry. Because this side agreement
addressed the key issues raised in the
earlier Notice of Inquiry, the Copyright
Office sought additional comments on
BILLING CODE 4510–79–P
LIBRARY OF CONGRESS
Copyright Office
Notice of Roundtable Regarding the
Section 115 Compulsory License for
Making and Distributing
Phonorecords, Including Digital
Phonorecord Deliveries
Copyright Office, Library of
Congress.
ACTION: Notice announcing public
roundtable.
AGENCY:
SUMMARY: The Copyright Office
announces a public roundtable
discussion concerning the use of the
statutory license to make and distribute
digital phonorecords, including for a
limited period, and to make
phonorecords that facilitate streaming.
This discussion is an adjunct to the
comments filed in the current
rulemaking exploring these issues. The
roundtable will also address the
statutory requirement to provide notice
of intention to obtain the compulsory
license.
The public roundtable will be
held in Washington, DC on June 15,
2007, in the Copyright Office Hearing
Room at the Library of Congress, Room
LM–408, 4th Floor, James Madison
Building, 101 Independence Avenue,
SE, Washington, DC from 9:30 a.m. to
4:30 p.m. Requests to participate or
observe the roundtable shall be
submitted in writing no later than close
of business on June 6, 2007.
ADDRESSES: Requests to observe or
participate in the roundtable should be
addressed to Joe Keeley, Attorney
Advisor, and may be sent by mail or
preferably by e–mail to
musiclicense@loc.gov. See
SUPPLEMENTARY INFORMATION for
DATES:
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Joe
Keeley, Attorney Advisor, or Stephen
Ruwe, Attorney Advisor, Office of the
General Counsel, P.O. Box 70977,
Southwest Station, Washington, DC
20024–0977. Telephone: (202) 707–
8350. Telefax: (202) 707–8366.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Background
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the original questions. 66 FR 64783
(December 14, 2001).
The incidental DPD debate has been
hotly contested and, along with the
reform of section 115, the subject of
numerous hearings before the
Subcommittee on Courts, the Internet
and Intellectual Property of the House
Committee on the Judiciary (March 23,
2007; May 16, 2006; June 21, 2005; and
March 11, 2004) and the Senate
Judiciary Committee, Subcommittee on
Intellectual Property (July 12, 2005).
Yet, in spite of all the attention, the
legal issues remain unresolved.
Consequently, the Office is again
focusing on the rulemaking process and
is hosting the roundtable discussion as
a way to refresh the existing record in
order to ascertain the scope of the 115
license in relation to certain digital
music services.
In addition to the issues raised in the
March 9, 2001, Notice of Inquiry, on
August 28, 2001, the Copyright Office
issued a Notice of Proposed Rulemaking
to amend the rules associated with
service of a Notice of Intention to Obtain
Compulsory License (‘‘Notice’’) under
section 115. 66 FR 45241 (August 28,
2001). The purpose of the amendments
was to streamline the notification
process and make it easier for the
licensee to serve the copyright owner
with Notice for multiple musical works.
After considering the comments
received in that rulemaking proceeding,
the Office adopted regulations that
allow, among other things: service on an
agent; the listing of multiple works on
a single Notice; the filing of a single
Notice to cover all possible
configurations, including those not
listed specifically on the Notice; and use
of an address other than the one listed
in Copyright Office records. 69 FR
34578 (June 22, 2004).
In issuing its Final Rule, the Office
recognized that the purpose of the
Notice requirements in section 115 of
the Copyright Act, is ‘‘merely to give
notice to the copyright owner of a
licensee’s intention to use the copyright
owner’s musical work to make and
distribute phonorecords subject to the
terms of the section 115 compulsory
license.’’ 69 FR 34581 (June 22, 2004).
The Office now seeks to address
whether there are compelling reasons to
further streamline the Notice process.
Roundtable Topics
The Office is identifying a number of
key issues for discussion and
encourages the participation of persons
who can address these issues from the
perspectives of law, policy and the
practical needs of the affected
industries. The Office also encourages
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input from persons who can speak to
the technological aspects involved in
the making of a digital transmission,
especially with respect to the making of
specific reproductions during the course
of a transmission. In addition, the Office
invites participants to identify any other
actions they believe the Office should
undertake, pursuant to its regulatory
authority, to make the section 115
license more workable and/or efficient.
Topic 1: How do ‘‘Limited Downloads’’
Fit Within the Scope of the Section 115
License?
The March 9, 2001, Notice of Inquiry
addressed a petition for clarification of
the status of Limited Downloads within
the section 115 license. The petitioning
party, the RIAA, characterized a Limited
Download as an on–demand
transmission of a time–limited or other
use–limited download to a storage
device (such as a computer’s hard
drive), using technology that causes the
downloaded file to be available for
listening only either during a limited
time or for a certain number of times.
The Notice of Inquiry, as well as the
resulting comments, focused largely on
whether Limited Downloads fit within
the scope of section 115 as either
incidental digital phonorecord
deliveries (‘‘incidental DPDs’’), as
provided for in 17 U.S.C. 115(c)(3)(D),
or distributions of phonorecords by
rental lease or lending, as provided for
in 115 U.S.C. 115(c)(4). Since a DPD is
defined as an ‘‘individual delivery of a
phonorecord which results in a
specifically identifiable reproduction,’’
and since a Limited Download would
appear to be the specifically identifiable
reproduction that is the end result of the
DPD, could that same Limited
Download also be considered
‘‘incidental to the transmission which
constitutes the digital phonorecord
delivery?’’ Can a DPD in fact result in
a reproduction which is incidental to
itself or should a Limited Download be
characterized as a general DPD,1 albeit
potentially valued at a different rate.
1Section 115(d) defines a ‘‘digital phonorecord
delivery’’ as ‘‘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 of
a phonorecord of that sound recording, regardless
of whether the digital transmission is also a public
performance of the sound recording or any
nondramatic musical work embodied therein. A
digital phonorecord delivery does not result from a
real–time, non–interactive subscription
transmission of a sound recording where no
reproduction of the sound recording or the musical
work embodied therein is made from the inception
of the transmission through to its receipt by the
transmission recipient in order to make the sound
recording audible.’’
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The Office welcomes further discussion
on each of these approaches.
In considering whether a Limited
Download can be viewed as an
incidental DPD, the Office takes note of
the fact that the language of 17 U.S.C.
115(c)(3)(D) identifies an incidental
DPD as a reproduction or distribution of
a phonorecord that is incidental to the
transmission which constitutes the
digital phonorecord delivery. This
would seem to indicate that an
incidental DPD cannot exist without an
underlying DPD. Given this condition,
could a Limited Download ever be
considered an incidental DPD? If the
Limited Download is considered a
general DPD, are there also incidental
DPDs made in the course of delivering
the Limited Download?
Alternatively, reliance on the section
115 provision for rental, lease or lending
of a phonorecord as a way to clear the
rights to the use of the musical work in
Limited Downloads is not self–evident.
A plain reading of the statutory
language2 seems to envision that any
coverage provided by the section 115
license for phonorecord rental, lease or
lending is predicated on a further
distribution of a phonorecord already in
existence. Furthermore, use of the
provision appears to require a licensee
to make two payments, once under 17
U.S.C. 115(c)(2) for the making and
distribution of the phonorecord and
again for subsequent acts of rental, lease
or lending of that phonorecord. It is also
worth noting that royalty
determinations for every such act of
rental, lease or lending are dependent
upon the revenue received by the
licensee for the underlying reproduction
and distribution.3 As a matter of
practicality, it seems the rental, lease or
lending provision is uniquely suited to
traditional, non–digital, uses of the
2‘‘A compulsory license under this section
includes the right of the maker of a phonorecord of
a nondramatic musical work under subsection (a)(1)
to distribute or authorize distribution of such
phonorecord by rental, lease, or lending (or by acts
or practices in the nature of rental, lease, or
lending). In addition to any royalty payable under
clause (2) and chapter 8 of this title, a royalty shall
be payable by the compulsory licensee for every act
of distribution of a phonorecord by or in the nature
of rental, lease, or lending, by or under the
authority of the compulsory licensee. With respect
to each nondramatic musical work embodied in the
phonorecord, the royalty shall be a proportion of
the revenue received by the compulsory licensee
from every such act of distribution of the
phonorecord under this clause equal to the
proportion of the revenue received by the
compulsory licensee from distribution of the
phonorecord under clause (2) that is payable by a
compulsory licensee under that clause and under
chapter 8. The Register of Copyrights shall issue
regulations to carry out the purpose of this clause.’’
115 U.S.C. 115(c)(4)
3Id.
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Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices
section 115 license, in which a
phonorecord is not parted with
permanently, but instead returned to the
licensee who may rent it multiple times.
The Office welcomes alternative views
on application of the section 115
provision for rental, lease or lending of
a phonorecord to Limited Downloads.
Topic 2: Does ‘‘Streaming’’ Fit Within
the Scope of the Section 115 License?
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The March 9, 2001, Notice of Inquiry
sought clarification of the status of
streaming,4 specifically with respect to
‘‘on–demand streams’’ within the
section 115 license. In the previous
Notice of Inquiry, the Office recognized
that streaming necessarily involves a
making of a number of copies of the
musical work––or portions of the work–
–along the transmission path to
accomplish the delivery of the work.
Copies are made by the computer
servers that deliver the musical work
(variously referred to as ‘‘server,’’
‘‘root,’’ ‘‘encoded,’’ or ‘‘cache’’ copies),
and additional copies are made by the
receiving computer to better facilitate
the actual performance of the work
(often referred to as ‘‘buffer’’ copies).
Some of these copies are temporary;
some may not necessarily be so. 66 FR
14101 (March 9, 2001).
Similar to its consideration with
regard to Limited Downloads, the Office
welcomes further information regarding
whether the reproductions made in the
course of streaming enjoy coverage
under the section 115 provisions as
incidental DPDs. Again, the Office takes
note of the fact that the language of 17
U.S.C. 115(c)(3)(D) identifies an
incidental DPD as a reproduction or
distribution of a phonorecord that is
incidental to the transmission which
constitutes the digital phonorecord
delivery.
The Office, therefore, seeks further
information as to whether the
reproductions made to facilitate a
stream result in a DPD as defined in
section 115(d),5 focusing on the
requirement that the DPD must result in
‘‘a specifically identifiable reproduction
by or for any transmission recipient.’’
Does streaming result in such
specifically identifiable reproductions?
And if a DPD is made in the course of
streaming, does the streaming process
also produce incidental DPDs for
purposes of section 115? The Office
4While the March 9, 2001, Notice of Inquiry set
out to address ‘‘On-Demand Streams’’ only, the
Office will consider all types of streaming,
regardless of their interactive nature, in determining
their place within the scope of the section 115
license, which unlike the section 114 license makes
no distinction between interactive and
noninteractive uses of copyrighted works.
5 See supra n.1.
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welcomes the participation of
individuals who can provide technical
expertise in considering these questions.
Topic 3: Do Server Copies Necessary to
Transmit Limited Downloads or Streams
Fit Within the Scope of the Section 115
License?
The Office welcomes further
information as to whether server copies,
or other copies not actually delivered to
the public for private use, fit within the
scope of the section 115 license,
perhaps as incidental DPDs. The
language of 17 U.S.C. 115(c)(3)(D),
which identifies an incidental DPD as a
reproduction or distribution of a
phonorecord that is incidental to the
transmission which constitutes the
digital phonorecord delivery could
indicate that server copies may be
considered incidental DPDs. On the
other hand, the section 115(a)(1)
requirement that ‘‘a person may obtain
a compulsory license only if his or her
primary purpose in making
phonorecords is to distribute them to
the public for private use’’ may cut
against consideration of a server copy as
an incidental DPD, at least in cases
where the server copy is used for
purposes of streaming. Does the fact that
the law indicates that an incidental DPD
can be either a reproduction or a
distribution minimize the importance of
the 115(a)(1) requirement or nullify it in
the case of an incidental DPD?
Topic 4: Notice Requirements
The Office amended its regulations
governing Notice several years ago to
allow service on agents of copyright
owners as a way to make the license
more functional. 69 FR 34578 (June 22,
2004). However, the section 115 license
remains largely unused by most parties
to previous rulemaking proceedings
who expressed an interest in employing
it. The Office, therefore, seeks
information as to whether there are
compelling reasons to further streamline
the Notice process.
Specifically, the Office seeks further
information on the benefits and burdens
of the existing Notice requirements; the
potential to eliminate information (data
fields) currently required in a Notice;
and services and technology that may be
employed by either the Office or third
parties to assist in the Notice process.
The Office also seeks further
information on the following previously
suggested, yet heretofore
unimplemented, methods for
streamlining the Notice process:
a.Filing of ‘‘Universal’’ or ‘‘Database’’
Notices.
Current regulations allow that a
Notice may address the works of
multiple copyright owners only so long
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30041
as such Notice is served on an agent of
a copyright owner, and all of the works
addressed by such Notice are owned or
co–owned by copyright owners who
have authorized their agent to accept
Notice on their behalf. The Office seeks
further information concerning
additional changes to allow the filing of
a single, universal ‘‘Database’’ Notice
upon agents of copyright owners. Such
a ‘‘Database’’ Notice would be effective
only to the extent it addresses works
owned or co–owned by the copyright
owners represented by the agent on
whom the Notice is served. Similar
proposals regarding ‘‘Database’’ Notices
have been suggested in previous
proceedings. One such proposal put
forward by DiMA, would have allowed
the licensee, in the case of electronic
submissions, to serve directly on
copyright owners a single ‘‘Database’’
Notice listing multiple works by
multiple owners. 69 FR 11571 (March
11, 2004).
The Office undertakes further inquiry
regarding service of a single ‘‘Database’’
Notice to consider another proposal
similar to DiMA’s that would allow
service of ‘‘Database’’ Notices on agents
of copyright owners, as opposed to
service of ‘‘Database’’ Notices directly
on copyright owners. In its earlier
consideration for allowing ‘‘Database’’
Notices, the Office found that section
115 ‘‘does not anticipate that the
copyright owner should have to search
a licensee’s universal database Notice to
determine which of the copyright
owner’s works a licensee intends to
use.’’ 69 FR 11571 (March 11, 2004). In
seeking further information regarding
service of a ‘‘Database’’ Notice on agents
of copyright owners, the Office
recognizes the continually advancing
search and sort capabilities of word
processing, spreadsheet, and other
electronic data management
applications that are in increasingly
wide use. Given such capabilities,
would it be reasonable to require agents
of copyright owners served with Notice
to provide not only the name and
address of the person to whom
Statements of Account and monthly
royalties are to be made, but also
information regarding the works owned
by the copyright owners the agent
represents? And, assuming for purposes
of this discussion copyright owners can
provide this information, can and
should the Office issue regulations
under section 115 to allow service of a
blanket ‘‘Database’’ Notice on a
copyright owner (or an agent of one or
more copyright owners) that does not
specify any particular musical work, but
simply states that the user intends to
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Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices
use the section 115 license to make and
distribute DPDs for all musical works
owned by that particular copyright
owner (or all copyright owners
represented by that particular agent)?
The Office takes note of the actions
among interested parties to develop data
exchange standards for information
relating to media content, exemplified
by the establishment of ‘‘Digital Data
Exchange.’’ (See www.ddex.net. Are
there additional emerging business
solutions that may efficiently aid the
administration of ‘‘Database’’ Notices?
Would the adoption of a uniform
standard for the exchange of digital data
allow for the use of a universal
‘‘Database’’ Notice? Are there legal
impediments to allowing service of a
universal ‘‘Database’’ Notice on agents
of copyright owners?
b.Authority of Agents
Current regulations allow a potential
licensee to choose to serve Notice on
either the copyright owner or an agent
of the copyright owner with authority to
receive the Notice. Previous rulemaking
proceedings have considered that the
regulations may set a higher standard
for establishing an agency relationship
than that applied as a matter of agency
law. 69 FR 11568 (March 11, 2004).
Currently, the regulations provide for
service of the Notice on either the
copyright owner or an agent of the
copyright owner with authority to
receive the Notice. The Office seeks
further input as to whether an agent
with authority to accept Notices
includes general registered agents of
copyright owners of the sort that may be
required as a condition of enjoying
corporate or other similar legal status by
copyright owners in their respective
jurisdictions. And if not, whether the
regulations should be so amended.
Participation and Filing Requirements
Parties wishing to observe or
participate in the roundtable discussion
must submit a written request no later
than close of business on June 6, 2007.
Requests to observe the roundtable or to
participate as a member of the
roundtable must indicate the following
information:
sroberts on PROD1PC70 with NOTICES
1. The name of the person, including
whether it is his or her intention to
observe the roundtable or to participate
as a member of the roundtable;
2. The organization or organizations
represented by that person, if any;
Jkt 211001
Dated: May 24, 2007
Marybeth Peters,
Register of Copyrights.
[FR Doc. E7–10363 Filed 5–29–07; 8:45 am]
BILLING CODE 1410–30–S
Weeks of May 28, June 4, 11, 18,
25, July 2, 2007.
DATE:
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Commissioners’ Conference
Room, 11555 Rockville Pike, Rockville,
Maryland.
STATUS: Public and Closed.
MATTERS TO BE CONSIDERED:
PLACE:
Week of May 28, 2007
Tuesday, May 29, 2007
1:30 p.m. NRC All Hands Meeting
(Public Meeting) (Contact: Rickie
Seltzer, 301–415–1728), Marriott
Bethesda North Hotel, Salons A–E,
5701 Marinelli Road, Rockville, MD
20852.
Wednesday, May 30, 2007
9:25 a.m. Affirmation Session
(Public Meeting) (Tentative): a.
USEC Inc. (American Centrifuge
Plant), LBP–07–06 (Initial Decision
Authorizing License), Geoffrey Sea
Letter ‘‘in preparation of late-filed
contentions’’ (Tentative).
b. Shieldalloy Metallurgical Corp.
(Licensing Amendment Request for
Decommissioning of the Newfield,
New Jersey Facility), Docket No.
40–7102–MLA, Appeal of Loretta
Williams from LBP–07–05
(Tentative).
This meeting will be webcast live at
the Web address—https://www.nrc.gov.
9:30 a.m. Briefing on Results of the
Agency Action Review Meeting
(AARM)—Materials (Public
Meeting) (Contact: Duane White,
301–415–6272).
This meeting will be webcast live at
the Web address—https://www.nrc.gov.
10:15 a.m. Discussion of Security
Issues (Closed–Ex.1).
Thursday, May 31, 2007
9 a.m. Briefing on Results of the
Agency Action Review Meeting
(AARM)—Reactors (Public Meeting)
(Contact: Mark Tonacci, 301–415–
4045).
This meeting will be webcast live at
the Web address—https://www.nrc.gov.
Week of June 4, 2007—Tentative
Thursday, June 7, 2007
1:30 p.m. Meeting with the Advisory
Committee on Reactor Safeguards
(ACRS) (Public Meeting) (Contact:
Frank Gillespie, 301–415–7360).
This meeting will be webcast live at
the Web address—https://www.nrc.gov.
Week of June 11, 2007—Tentative
There are no meetings scheduled for
the Week of June 11, 2007.
Week of June 18, 2007—Tentative
There are no meetings scheduled for
the Week of June 18, 2007.
Sunshine Federal Register Notice
4. Information on the specific focus or
interest of the observers or participants
(or his or her organization) and any
19:13 May 29, 2007
The capacity of the room in which the
roundtable will be held is limited. If the
Office receives so many requests that
the room’s capacity is reached,
attendance will be granted in the order
the requests are received.
The preferred method for submission
of the requests to observe or participate
is via email. If sent by e–mail, please
send to musiclicense@loc.gov.
Alternatively, requests may be delivered
by hand or submitted by mail.
If hand delivered by a private party,
an original and five copies of the request
to observe or participate should be
brought to Room 401 of the James
Madison Building between 8:30 a.m.
and 5 p.m. The envelope should be
addressed as follows: Office of the
General Counsel, Library of Congress,
James Madison Building, LM–401,
Washington, DC, 20559–6000.
If delivered by a commercial courier,
an original and five copies of a request
to observe or participate in the
roundtable must be delivered to the
Congressional Courier Acceptance Site
(‘‘CCAS’’) located at 2nd and D Streets,
NE, Washington, DC between 8:30 a.m.
and 4 p.m. The envelope should be
addressed as follows: Office of the
General Counsel, U.S. Copyright Office,
LM 401, James Madison Building, 101
Independence Avenue, SE, Washington,
DC. Please note that CCAS will not
accept delivery by means of overnight
delivery services such as Federal
Express, United Parcel Service or DHL.
If sent by mail (including overnight
delivery using U.S. Postal Service
Express Mail), an original and five
copies of a request to observe or
participate should be addressed to U.S.
Copyright Office, Copyright GC/I&R,
P.O. Box 70400, Southwest Station,
Washington, DC 20024. Please be aware
that delivery of mail via the U.S. Postal
Service or private courier is subject to
delay. Therefore, it is strongly suggested
that any request to observe or
participate be made via email.
NUCLEAR REGULATORY
COMMISSION
3. Contact information (address,
telephone, and e–mail); and
VerDate Aug<31>2005
questions or issues they would like to
raise.
Week of June 25, 2007—Tentative
There are no meetings scheduled for
the Week of June 25, 2007.
E:\FR\FM\30MYN1.SGM
30MYN1
]]>Agencies
[Federal Register Volume 72, Number 103 (Wednesday, May 30, 2007)]
[Notices]
[Pages 30039-30042]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-10363]
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LIBRARY OF CONGRESS
Copyright Office
Notice of Roundtable Regarding the Section 115 Compulsory License
for Making and Distributing Phonorecords, Including Digital Phonorecord
Deliveries
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice announcing public roundtable.
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SUMMARY: The Copyright Office announces a public roundtable discussion
concerning the use of the statutory license to make and distribute
digital phonorecords, including for a limited period, and to make
phonorecords that facilitate streaming. This discussion is an adjunct
to the comments filed in the current rulemaking exploring these issues.
The roundtable will also address the statutory requirement to provide
notice of intention to obtain the compulsory license.
DATES: The public roundtable will be held in Washington, DC on June 15,
2007, in the Copyright Office Hearing Room at the Library of Congress,
Room LM-408, 4th Floor, James Madison Building, 101 Independence
Avenue, SE, Washington, DC from 9:30 a.m. to 4:30 p.m. Requests to
participate or observe the roundtable shall be submitted in writing no
later than close of business on June 6, 2007.
ADDRESSES: Requests to observe or participate in the roundtable should
be addressed to Joe Keeley, Attorney Advisor, and may be sent by mail
or preferably by e-mail to musiclicense@loc.gov. See SUPPLEMENTARY
INFORMATION for alternative means of submission and filing
requirements.
FOR FURTHER INFORMATION CONTACT: Joe Keeley, Attorney Advisor, or
Stephen Ruwe, Attorney Advisor, Office of the General Counsel, P.O. Box
70977, Southwest Station, Washington, DC 20024-0977. Telephone: (202)
707-8350. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
Background
Section 115 of the Copyright Act, title 17 of the United States
Code provides a statutory license for the making and distribution of
phonorecords of nondramatic musical works. Historically, the statutory
rates have established the ceiling for the mechanical licenses issued
in the marketplace. In 1995, Congress passed the Digital Performance
Right in Sound Recordings Act, Pub. L. No. 104-39, 109 Stat. 336, which
amended section 115 to include the right to distribute a phonorecord by
means of a ``digital phonorecord delivery'' (``DPD''). The statute
includes a definition of a DPD and explains the process for
establishing rates for these phonorecords. In addition, it acknowledges
the existence of additional DPDs ``where the reproduction or
distribution of the phonorecord is incidental to the transmission which
constitutes the [DPD]'' 17 U.S.C. 115(c)(3)(D), and requires that a
separate rate be set for these phonorecords. However, the law does not
identify which DPDs can be classified as incidental or provide any
guidelines for making this decision.
For this reason, the Copyright Office published a Notice of Inquiry
in the Federal Register, 66 FR 14099 (March 9, 2001), requesting
comment on the interpretation and application of the mechanical and
digital phonorecord compulsory license, 17 U.S.C. 115, to certain
digital music services. The Recording Industry Association of America
(``RIAA'') had suggested in its petition for this rulemaking that
section 115 be interpreted in such a way as to cover all reproductions
made to operate services offering On-Demand Streams and Limited
Downloads, as defined in the March 9, 2001, notice. At about the same
time, RIAA entered into separate negotiations with the National Music
Publishers Association and the Harry Fox Agency, Inc. and reached an
agreement concerning several of the issues involved in the original
Notice of Inquiry. Because this side agreement addressed the key issues
raised in the earlier Notice of Inquiry, the Copyright Office sought
additional comments on
[[Page 30040]]
the original questions. 66 FR 64783 (December 14, 2001).
The incidental DPD debate has been hotly contested and, along with
the reform of section 115, the subject of numerous hearings before the
Subcommittee on Courts, the Internet and Intellectual Property of the
House Committee on the Judiciary (March 23, 2007; May 16, 2006; June
21, 2005; and March 11, 2004) and the Senate Judiciary Committee,
Subcommittee on Intellectual Property (July 12, 2005). Yet, in spite of
all the attention, the legal issues remain unresolved. Consequently,
the Office is again focusing on the rulemaking process and is hosting
the roundtable discussion as a way to refresh the existing record in
order to ascertain the scope of the 115 license in relation to certain
digital music services.
In addition to the issues raised in the March 9, 2001, Notice of
Inquiry, on August 28, 2001, the Copyright Office issued a Notice of
Proposed Rulemaking to amend the rules associated with service of a
Notice of Intention to Obtain Compulsory License (``Notice'') under
section 115. 66 FR 45241 (August 28, 2001). The purpose of the
amendments was to streamline the notification process and make it
easier for the licensee to serve the copyright owner with Notice for
multiple musical works. After considering the comments received in that
rulemaking proceeding, the Office adopted regulations that allow, among
other things: service on an agent; the listing of multiple works on a
single Notice; the filing of a single Notice to cover all possible
configurations, including those not listed specifically on the Notice;
and use of an address other than the one listed in Copyright Office
records. 69 FR 34578 (June 22, 2004).
In issuing its Final Rule, the Office recognized that the purpose
of the Notice requirements in section 115 of the Copyright Act, is
``merely to give notice to the copyright owner of a licensee's
intention to use the copyright owner's musical work to make and
distribute phonorecords subject to the terms of the section 115
compulsory license.'' 69 FR 34581 (June 22, 2004). The Office now seeks
to address whether there are compelling reasons to further streamline
the Notice process.
Roundtable Topics
The Office is identifying a number of key issues for discussion and
encourages the participation of persons who can address these issues
from the perspectives of law, policy and the practical needs of the
affected industries. The Office also encourages input from persons who
can speak to the technological aspects involved in the making of a
digital transmission, especially with respect to the making of specific
reproductions during the course of a transmission. In addition, the
Office invites participants to identify any other actions they believe
the Office should undertake, pursuant to its regulatory authority, to
make the section 115 license more workable and/or efficient.
Topic 1: How do ``Limited Downloads'' Fit Within the Scope of
the Section 115 License?
The March 9, 2001, Notice of Inquiry addressed a petition for
clarification of the status of Limited Downloads within the section 115
license. The petitioning party, the RIAA, characterized a Limited
Download as an on-demand transmission of a time-limited or other use-
limited download to a storage device (such as a computer's hard drive),
using technology that causes the downloaded file to be available for
listening only either during a limited time or for a certain number of
times. The Notice of Inquiry, as well as the resulting comments,
focused largely on whether Limited Downloads fit within the scope of
section 115 as either incidental digital phonorecord deliveries
(``incidental DPDs''), as provided for in 17 U.S.C. 115(c)(3)(D), or
distributions of phonorecords by rental lease or lending, as provided
for in 115 U.S.C. 115(c)(4). Since a DPD is defined as an ``individual
delivery of a phonorecord which results in a specifically identifiable
reproduction,'' and since a Limited Download would appear to be the
specifically identifiable reproduction that is the end result of the
DPD, could that same Limited Download also be considered ``incidental
to the transmission which constitutes the digital phonorecord
delivery?'' Can a DPD in fact result in a reproduction which is
incidental to itself or should a Limited Download be characterized as a
general DPD,\1\ albeit potentially valued at a different rate. The
Office welcomes further discussion on each of these approaches.
---------------------------------------------------------------------------
\1\Section 115(d) defines a ``digital phonorecord delivery'' as
``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 of a phonorecord
of that sound recording, regardless of whether the digital
transmission is also a public performance of the sound recording or
any nondramatic musical work embodied therein. A digital phonorecord
delivery does not result from a real-time, non-interactive
subscription transmission of a sound recording where no reproduction
of the sound recording or the musical work embodied therein is made
from the inception of the transmission through to its receipt by the
transmission recipient in order to make the sound recording
audible.''
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In considering whether a Limited Download can be viewed as an
incidental DPD, the Office takes note of the fact that the language of
17 U.S.C. 115(c)(3)(D) identifies an incidental DPD as a reproduction
or distribution of a phonorecord that is incidental to the transmission
which constitutes the digital phonorecord delivery. This would seem to
indicate that an incidental DPD cannot exist without an underlying DPD.
Given this condition, could a Limited Download ever be considered an
incidental DPD? If the Limited Download is considered a general DPD,
are there also incidental DPDs made in the course of delivering the
Limited Download?
Alternatively, reliance on the section 115 provision for rental,
lease or lending of a phonorecord as a way to clear the rights to the
use of the musical work in Limited Downloads is not self-evident. A
plain reading of the statutory language\2\ seems to envision that any
coverage provided by the section 115 license for phonorecord rental,
lease or lending is predicated on a further distribution of a
phonorecord already in existence. Furthermore, use of the provision
appears to require a licensee to make two payments, once under 17
U.S.C. 115(c)(2) for the making and distribution of the phonorecord and
again for subsequent acts of rental, lease or lending of that
phonorecord. It is also worth noting that royalty determinations for
every such act of rental, lease or lending are dependent upon the
revenue received by the licensee for the underlying reproduction and
distribution.\3\ As a matter of practicality, it seems the rental,
lease or lending provision is uniquely suited to traditional, non-
digital, uses of the
[[Page 30041]]
section 115 license, in which a phonorecord is not parted with
permanently, but instead returned to the licensee who may rent it
multiple times. The Office welcomes alternative views on application of
the section 115 provision for rental, lease or lending of a phonorecord
to Limited Downloads.
---------------------------------------------------------------------------
\2\``A compulsory license under this section includes the right
of the maker of a phonorecord of a nondramatic musical work under
subsection (a)(1) to distribute or authorize distribution of such
phonorecord by rental, lease, or lending (or by acts or practices in
the nature of rental, lease, or lending). In addition to any royalty
payable under clause (2) and chapter 8 of this title, a royalty
shall be payable by the compulsory licensee for every act of
distribution of a phonorecord by or in the nature of rental, lease,
or lending, by or under the authority of the compulsory licensee.
With respect to each nondramatic musical work embodied in the
phonorecord, the royalty shall be a proportion of the revenue
received by the compulsory licensee from every such act of
distribution of the phonorecord under this clause equal to the
proportion of the revenue received by the compulsory licensee from
distribution of the phonorecord under clause (2) that is payable by
a compulsory licensee under that clause and under chapter 8. The
Register of Copyrights shall issue regulations to carry out the
purpose of this clause.'' 115 U.S.C. 115(c)(4)
\3\Id.
Topic 2: Does ``Streaming'' Fit Within the Scope of the Section
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115 License?
The March 9, 2001, Notice of Inquiry sought clarification of the
status of streaming,\4\ specifically with respect to ``on-demand
streams'' within the section 115 license. In the previous Notice of
Inquiry, the Office recognized that streaming necessarily involves a
making of a number of copies of the musical work--or portions of the
work--along the transmission path to accomplish the delivery of the
work. Copies are made by the computer servers that deliver the musical
work (variously referred to as ``server,'' ``root,'' ``encoded,'' or
``cache'' copies), and additional copies are made by the receiving
computer to better facilitate the actual performance of the work (often
referred to as ``buffer'' copies). Some of these copies are temporary;
some may not necessarily be so. 66 FR 14101 (March 9, 2001).
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\4\While the March 9, 2001, Notice of Inquiry set out to address
``On-Demand Streams'' only, the Office will consider all types of
streaming, regardless of their interactive nature, in determining
their place within the scope of the section 115 license, which
unlike the section 114 license makes no distinction between
interactive and noninteractive uses of copyrighted works.
---------------------------------------------------------------------------
Similar to its consideration with regard to Limited Downloads, the
Office welcomes further information regarding whether the reproductions
made in the course of streaming enjoy coverage under the section 115
provisions as incidental DPDs. Again, the Office takes note of the fact
that the language of 17 U.S.C. 115(c)(3)(D) identifies an incidental
DPD as a reproduction or distribution of a phonorecord that is
incidental to the transmission which constitutes the digital
phonorecord delivery.
The Office, therefore, seeks further information as to whether the
reproductions made to facilitate a stream result in a DPD as defined in
section 115(d),\5\ focusing on the requirement that the DPD must result
in ``a specifically identifiable reproduction by or for any
transmission recipient.'' Does streaming result in such specifically
identifiable reproductions? And if a DPD is made in the course of
streaming, does the streaming process also produce incidental DPDs for
purposes of section 115? The Office welcomes the participation of
individuals who can provide technical expertise in considering these
questions.
---------------------------------------------------------------------------
\5\ See supra n.1.
Topic 3: Do Server Copies Necessary to Transmit Limited
Downloads or Streams Fit Within the Scope of the Section 115
---------------------------------------------------------------------------
License?
The Office welcomes further information as to whether server
copies, or other copies not actually delivered to the public for
private use, fit within the scope of the section 115 license, perhaps
as incidental DPDs. The language of 17 U.S.C. 115(c)(3)(D), which
identifies an incidental DPD as a reproduction or distribution of a
phonorecord that is incidental to the transmission which constitutes
the digital phonorecord delivery could indicate that server copies may
be considered incidental DPDs. On the other hand, the section 115(a)(1)
requirement that ``a person may obtain a compulsory license only if his
or her primary purpose in making phonorecords is to distribute them to
the public for private use'' may cut against consideration of a server
copy as an incidental DPD, at least in cases where the server copy is
used for purposes of streaming. Does the fact that the law indicates
that an incidental DPD can be either a reproduction or a distribution
minimize the importance of the 115(a)(1) requirement or nullify it in
the case of an incidental DPD?
Topic 4: Notice Requirements
The Office amended its regulations governing Notice several years
ago to allow service on agents of copyright owners as a way to make the
license more functional. 69 FR 34578 (June 22, 2004). However, the
section 115 license remains largely unused by most parties to previous
rulemaking proceedings who expressed an interest in employing it. The
Office, therefore, seeks information as to whether there are compelling
reasons to further streamline the Notice process.
Specifically, the Office seeks further information on the benefits
and burdens of the existing Notice requirements; the potential to
eliminate information (data fields) currently required in a Notice; and
services and technology that may be employed by either the Office or
third parties to assist in the Notice process. The Office also seeks
further information on the following previously suggested, yet
heretofore unimplemented, methods for streamlining the Notice process:
a.Filing of ``Universal'' or ``Database'' Notices.
Current regulations allow that a Notice may address the works of
multiple copyright owners only so long as such Notice is served on an
agent of a copyright owner, and all of the works addressed by such
Notice are owned or co-owned by copyright owners who have authorized
their agent to accept Notice on their behalf. The Office seeks further
information concerning additional changes to allow the filing of a
single, universal ``Database'' Notice upon agents of copyright owners.
Such a ``Database'' Notice would be effective only to the extent it
addresses works owned or co-owned by the copyright owners represented
by the agent on whom the Notice is served. Similar proposals regarding
``Database'' Notices have been suggested in previous proceedings. One
such proposal put forward by DiMA, would have allowed the licensee, in
the case of electronic submissions, to serve directly on copyright
owners a single ``Database'' Notice listing multiple works by multiple
owners. 69 FR 11571 (March 11, 2004).
The Office undertakes further inquiry regarding service of a single
``Database'' Notice to consider another proposal similar to DiMA's that
would allow service of ``Database'' Notices on agents of copyright
owners, as opposed to service of ``Database'' Notices directly on
copyright owners. In its earlier consideration for allowing
``Database'' Notices, the Office found that section 115 ``does not
anticipate that the copyright owner should have to search a licensee's
universal database Notice to determine which of the copyright owner's
works a licensee intends to use.'' 69 FR 11571 (March 11, 2004). In
seeking further information regarding service of a ``Database'' Notice
on agents of copyright owners, the Office recognizes the continually
advancing search and sort capabilities of word processing, spreadsheet,
and other electronic data management applications that are in
increasingly wide use. Given such capabilities, would it be reasonable
to require agents of copyright owners served with Notice to provide not
only the name and address of the person to whom Statements of Account
and monthly royalties are to be made, but also information regarding
the works owned by the copyright owners the agent represents? And,
assuming for purposes of this discussion copyright owners can provide
this information, can and should the Office issue regulations under
section 115 to allow service of a blanket ``Database'' Notice on a
copyright owner (or an agent of one or more copyright owners) that does
not specify any particular musical work, but simply states that the
user intends to
[[Page 30042]]
use the section 115 license to make and distribute DPDs for all musical
works owned by that particular copyright owner (or all copyright owners
represented by that particular agent)?
The Office takes note of the actions among interested parties to
develop data exchange standards for information relating to media
content, exemplified by the establishment of ``Digital Data Exchange.''
(See www.ddex.net. Are there additional emerging business solutions
that may efficiently aid the administration of ``Database'' Notices?
Would the adoption of a uniform standard for the exchange of digital
data allow for the use of a universal ``Database'' Notice? Are there
legal impediments to allowing service of a universal ``Database''
Notice on agents of copyright owners?
b.Authority of Agents
Current regulations allow a potential licensee to choose to serve
Notice on either the copyright owner or an agent of the copyright owner
with authority to receive the Notice. Previous rulemaking proceedings
have considered that the regulations may set a higher standard for
establishing an agency relationship than that applied as a matter of
agency law. 69 FR 11568 (March 11, 2004). Currently, the regulations
provide for service of the Notice on either the copyright owner or an
agent of the copyright owner with authority to receive the Notice. The
Office seeks further input as to whether an agent with authority to
accept Notices includes general registered agents of copyright owners
of the sort that may be required as a condition of enjoying corporate
or other similar legal status by copyright owners in their respective
jurisdictions. And if not, whether the regulations should be so
amended.
Participation and Filing Requirements
Parties wishing to observe or participate in the roundtable
discussion must submit a written request no later than close of
business on June 6, 2007. Requests to observe the roundtable or to
participate as a member of the roundtable must indicate the following
information:
1. The name of the person, including whether it is his or her
intention to observe the roundtable or to participate as a member of
the roundtable;
2. The organization or organizations represented by that
person, if any;
3. Contact information (address, telephone, and e-mail); and
4. Information on the specific focus or interest of the
observers or participants (or his or her organization) and any
questions or issues they would like to raise.
The capacity of the room in which the roundtable will be held is
limited. If the Office receives so many requests that the room's
capacity is reached, attendance will be granted in the order the
requests are received.
The preferred method for submission of the requests to observe or
participate is via email. If sent by e-mail, please send to
musiclicense@loc.gov. Alternatively, requests may be delivered by hand
or submitted by mail.
If hand delivered by a private party, an original and five copies
of the request to observe or participate should be brought to Room 401
of the James Madison Building between 8:30 a.m. and 5 p.m. The envelope
should be addressed as follows: Office of the General Counsel, Library
of Congress, James Madison Building, LM-401, Washington, DC, 20559-
6000.
If delivered by a commercial courier, an original and five copies
of a request to observe or participate in the roundtable must be
delivered to the Congressional Courier Acceptance Site (``CCAS'')
located at 2nd and D Streets, NE, Washington, DC between 8:30 a.m. and
4 p.m. The envelope should be addressed as follows: Office of the
General Counsel, U.S. Copyright Office, LM 401, James Madison Building,
101 Independence Avenue, SE, Washington, DC. Please note that CCAS will
not accept delivery by means of overnight delivery services such as
Federal Express, United Parcel Service or DHL.
If sent by mail (including overnight delivery using U.S. Postal
Service Express Mail), an original and five copies of a request to
observe or participate should be addressed to U.S. Copyright Office,
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC
20024. Please be aware that delivery of mail via the U.S. Postal
Service or private courier is subject to delay. Therefore, it is
strongly suggested that any request to observe or participate be made
via email.
Dated: May 24, 2007
Marybeth Peters,
Register of Copyrights.
[FR Doc. E7-10363 Filed 5-29-07; 8:45 am]
BILLING CODE 1410-30-S
