[Federal Register Volume 67, Number 180 (Tuesday, September 17, 2002)]
[Proposed Rules]
[Pages 58550-58551]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-23731]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2000-3C]


Public Performance of Sound Recordings: Definition of a Service

AGENCY: Copyright Office, Library of Congress.

ACTION: Request for comment.

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SUMMARY: The Copyright Office of the Library of Congress is providing 
an opportunity to all interested persons to file comments to a motion 
requesting a stay of its final rule which clarifies that transmissions 
of a broadcast signal over a digital communications network are not 
exempt from copyright liability under section 114(d)(1)(A) of the 
Copyright Act.

DATES: Oppositions are due no later than Tuesday, September 24, 2002. 
Replies are due no later than Friday, September 27, 2002.

ADDRESSES: An original and five copies should be hand delivered to: 
Office of the Copyright General Counsel, James Madison Memorial 
Building, Room LM-403, First and Independence Avenue, SE., Washington, 
DC 20540.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Tanya M. Sandros, Senior Attorney, Copyright Arbitration Royalty Panel, 
P.O. Box 70977, Southwest Station, Washington, DC 20024. Telephone:

[[Page 58551]]

(202) 707-8380. Telefax: (202) 252-3423.

SUPPLEMENTARY INFORMATION: On December 11, 2000, the Copyright Office 
issued a final rule to clarify that the transmission of a sound 
recording as part of a retransmission of an AM/FM broadcast signal over 
a digital communications network, such as the Internet, is subject to 
the limited digital performance right provided by section 106(6) of the 
Copyright Act, title 17 of the United States Code, and is not exempt 
under section 114(d)(1)(A)--the provision that specifically exempts a 
``nonsubscription broadcast transmission.'' 65 FR 77292 (December 11, 
2000).
    Broadcasters have challenged the Copyright Office's final rule and 
its interpretation of the relevant statutory provisions. On January 25, 
2001, Bonneville International Corp., Clear Channel Communications, 
Inc., Cox Radio, Inc., Emmis Communications Corp., Entercom 
Communications Corp., Susquehanna Radio Corp. and the National 
Association of Broadcasters (hereinafter, ``Broadcasters'') filed suit 
in the United States District Court for the Eastern District of 
Pennsylvania, seeking a declaratory ruling that the Office's rule was 
invalid. On cross summary judgment motions, the district court upheld 
the Copyright Office's interpretation of the statutory exemption, 
finding the interpretation both reasonable and permissible. Bonneville 
Int'l, et al. v. Peters, 153 F. Supp. 2d 763 (E.D. Pa. 2001). An appeal 
of the district court's decision is currently pending in the Third 
Circuit. See Bonneville, et al. v. Peters, Case No. 01-3720 (3d Cir.).
    Under the Office's interpretation of the section 114(d)(1)(A) 
exemption, FCC-licensed broadcasters who retransmit their AM/FM 
programming over the Internet may publicly perform the sound recordings 
that are part of that programming under the section 114 statutory 
license provided that the licensee pays the appropriate copyright 
royalty fees and abides by the terms of the statutory license. The 
rates and terms for use of this license and for the statutory license 
for making ephemeral phonorecords for the purpose of facilitating 
digital transmissions were recently adopted by the Library of Congress. 
See Final Order and Rule, Docket No. 2000-9 CARP DTRA1&2, 67 FR 45239 
(July 8, 2002). Under these rules, the first payment of copyright 
royalty fees for those operating under the section 112 and section 114 
statutory licenses is due October 20, 2002.
    Broadcasters, however, would like to stay the application of the 
Copyright Office's interpretation of section 114(d)(1)(A). To this end, 
Bonneville International Corp., Clear Channel Communications, Inc., Cox 
Radio, Inc., Emmis Communications Corp., Entercom Communications Corp., 
Salem Communications Corp., Susquehanna Radio Corp. and the National 
Association of Broadcasters (hereinafter, ``Movants'') filed a motion 
for stay \1\ with the Copyright Office on September 11, 2002, asking 
``the Register of Copyrights to stay the Register's December 11, 2000 
final rule, 65 FR 77330 (December 11, 2000), to the extent that its 
application would otherwise require thousands of radio stations across 
the nation to pay retrospective royalties covering a four year period 
on October 20, 2002 and thereafter to make royalty payments on a 
monthly basis for broadcasting transmissions that Broadcasters contend 
are exempt from any such obligation pursuant to 17 U.S.C. 
114(d)(1)(A).''
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    \1\ A copy of the motion to stay has been posted to the 
Copyright Office website at: http://www.loc.gov/copyright/carp/
motiontostay.pdf. Alternatively, copies of the motion are available 
in the Office of the General Counsel for copying.
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    Because this rule was promulgated through a notice and comment 
proceeding in accordance with the Administrative Procedure Act, title 5 
of the United States Code, Chapter 5, Subchapter II and Chapter 7, the 
Copyright Office is publishing this notice to announce the receipt of 
the motion to stay the December 11, 2000, final rule and to provide any 
person with an interest in this proceeding with an opportunity to 
comment on the motion.
    Oppositions are due in the Copyright Office no later than close of 
business on Tuesday, September 24, 2002. Replies are due no later than 
Friday, September 27, 2002.

    Dated: September 13, 2002.
David O. Carson,
General Counsel.
[FR Doc. 02-23731 Filed 9-16-02; 8:45 am]
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