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Federal Register / Vol. 70, No.

103 / Tuesday, May 31, 2005 / Rules and Regulations 30901

Creek, at mile 0.4, at Annapolis, MD, to Copyright Royalty Board, Library of new communications industries and
remain in the closed-to-navigation Congress, James Madison Memorial media. Henceforth, the rates for the
position each day from 10 p.m. to 5 a.m. Building, LM–403, 101 Independence statutory licenses would be adjusted by
beginning July 6, 2005, through August Avenue, SE., Washington, DC 20559– administrative decision. And, in those
31, 2005. 6000. If sent by mail (including instances where the statutory license
Dated: May 20, 2005. overnight delivery using United States fees would be paid into royalty pools (as
Waverly W. Gregory, Jr.,
Postal Service Express Mail), an original opposed to payments made directly to
and five copies of comments and reply copyright owners), the 1976
Chief, Bridge Administration Branch, Fifth
Coast Guard District.
comments must be addressed to: amendments to the Copyright Act set up
Copyright Royalty Board, P.O. Box administrative proceedings to
[FR Doc. 05–10694 Filed 5–27–05; 8:45 am]
70977, Southwest Station, Washington, adjudicate distribution disputes. See,
BILLING CODE 4910–15–P
DC 20024–0977. Comments and reply Christian Broadcasting Network, Inc. v.
comments may not be delivered by Copyright Royalty Tribunal, 720 F.2d
means of overnight delivery services 1295, 1300 (D.C. Cir. 1983).
LIBRARY OF CONGRESS such as Federal Express, United Parcel
Service, etc., due to delays in processing Finding the right administrative
Copyright Royalty Board structure to set rates and make
receipt of such deliveries.
distributions for the expanded array of
FOR FURTHER INFORMATION CONTACT:
37 CFR Chapter III statutory licenses has proven
William J. Roberts, Jr., Senior Attorney,
[Docket No. RM 2005–1] problematic. Initially, Congress
or Abioye E. Oyewole, CRB Program
Specialist. Telephone (202) 707–8380. established a stand-alone administrative
Procedural Regulations for the Telefax: (202) 252–3423. agency—the former Copyright Royalty
Copyright Royalty Board Tribunal—to perform these tasks.
SUPPLEMENTARY INFORMATION: On
However, ‘‘there was insufficient work
AGENCY: Copyright Royalty Board, November 30, 2004, the President
to justify the existence of a permanent
Library of Congress. signed into law the Copyright Royalty
body * * * ’’ National Ass’n of
ACTION: Procedural regulations with and Distribution Reform Act of 2004
(the ‘‘Reform Act’’), Public Law 108– Broadcasters v. Librarian of Congress,
request for comments. 146 F.3d 907, 912 (D.C. Cir. 1998). Next,
419, 118 Stat. 2341. This Act, which
SUMMARY: The Interim Chief Copyright becomes effective on May 31, 2005, in 1993, Congress transferred the
Royalty Judge, on behalf of the amends the Copyright Act, title 17 of the ratemaking and distribution functions to
Copyright Royalty Board of the Library United States Code with respect to the the Library of Congress. In cases where
of Congress, is issuing these regulations, administration of the various statutory the parties could not reach agreement,
governing the organization, copyright licenses, phasing out the the controversies would be referred to
administration, and procedures of the Copyright Arbitration Royalty Panel an ad hoc CARP. The CARP decisions
Board, for immediate use in proceedings (‘‘CARP’’) system and replacing the were then reviewed by the Librarian for
that are subject to the jurisdiction of arbitrators with three permanent possible arbitrariness. Id. at 912–13. But
Copyright Royalty Judges. Public Copyright Royalty Judges.1 the CARP system presented perceived
comments are sought on these Statutory licenses, sometimes referred problems of continuity, consistency,
regulations. to as ‘‘compulsory’’ licenses, enable a and expense.
DATES: These regulations are effective person to use copyrighted materials Under the Reform Act, three
on May 31, 2005. unilaterally, without contractual permanent Copyright Royalty Judges
Written comments should be received permission of the owners of the will be appointed by the Librarian of
no later than June 30, 2005. Reply materials; so long as the user complies Congress to encourage settlements and,
comments should be received no later with applicable reporting and royalty when necessary, resolve statutory
than July 21, 2005. payment obligations, such uses are not license disputes. The expectation is that
infringements of the owners’ copyright. the Copyright Royalty Judges, appointed
ADDRESSES: If hand delivered by a
The first statutory license, created in to staggered, six-year terms, will provide
private party, an original and five copies
1909, allowed manufacturers of piano greater decisional stability, yielding the
of comments and reply comments must
rolls to use copyrighted nondramatic advantages of the former Copyright
be brought to Room LM–401 of the
musical works; the license fee was set Royalty Tribunal, but with greater
James Madison Memorial Building,
by Congress in the statute. See, efficiency and expertise. On February 7,
Monday through Friday, between 8:30
Recording Industry Ass’n v. Copyright 2005, the Librarian of Congress
a.m. and 5 p.m., and the envelope must
Royalty Tribunal, 662 F.2d. 1 (D.C. Cir.
be addressed as follows: Copyright appointed an interim Chief Copyright
1981). In 1976, as part of major revisions
Royalty Board, Library of Congress, Royalty Judge and the Copyright Royalty
to the Copyright Act, Congress greatly
James Madison Memorial Building, LM– Board (‘‘CRB’’ or ‘‘Board’’) was
enlarged the regime for statutory
401, 101 Independence Avenue, SE., subsequently established within the
licenses, reflecting the development of
Washington, DC 20559–6000. If Library of Congress to house the
delivered by a commercial courier 1 Under the Act, the Copyright Royalty Judges
Copyright Royalty Judges.
(excluding overnight delivery services will conduct proceedings to ‘‘* * * make These regulations implement the
such as Federal Express, United Parcel determinations and adjustments of reasonable terms requirement of section 803(b)(6)(A) of
Service and similar overnight delivery and rates of royalty payments as provided in
[Copyright Act] sections 112(e), 114, 115, 116, 118, the Copyright Act 2 that directs the
services), an original and five copies of 119 and 1004,’’ ‘‘to make determinations Copyright Royalty Judges to ‘‘issue
comments and reply comments must be concerning the adjustment of the copyright royalty regulations to govern [their]
delivered to the Congressional Courier rates under [Copyright Act] section 111,’’ to proceedings’’ within 120 days of their
Acceptance Site located at 2nd and D authorize distributions under sections 111, 119, and
1007 of the Act, and ‘‘[t]o determine the status of
Street, NE., Monday through Friday, a digital audio recording device or a digital audio 2 Unless otherwise noted, all references are to
between 8:30 a.m. and 4 p.m., and the interface device under sections 1002 and 1003, as Chapter 8 of title 17 of the United States Code as
envelope must be addressed as follows: provided in section 1010.’’ See 17 U.S.C. 801(b). in effect on May 31, 2005.

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30902 Federal Register / Vol. 70, No. 103 / Tuesday, May 31, 2005 / Rules and Regulations

appointment.3 Congress did not intend determinations of copyright royalty their decision has become final and is
for these regulations to be issued as rates and terms, the distribution of judicially reviewable. 17 U.S.C.
‘‘proposed rules’’ or ‘‘interim copyright royalties, the acceptance or 802(f)(1)(D). This would be a most
regulations.’’ 4 Hence, unless amended, rejection of royalty claims, rate undesirable situation for all concerned.
these regulations will be used in the adjustment petitions, and petitions to These procedural regulations seek to
copyright statutory license proceedings participate, and in issuing other rulings minimize the likelihood of such an
conducted by the Copyright Royalty under this title * * * ’’ 17 U.S.C. event by attempting to identify referable
Judges under the Reform Act.5 802(f)(1)(A)(i). These findings, ‘‘material questions’’ at the earliest
Nevertheless, comments are sought at determinations, and rulings of the possible stage of the proceedings and by
this time to identify the need for prompt Copyright Royalty Judges are not encouraging orderly interlocutory
correction of any errors and to inform reviewable, at the administrative level, referrals. Public comments suggesting
the incoming, permanent Copyright by any other official. The final how these regulations might further
Royalty Judges as to any need for further determinations of the Copyright Royalty reduce the likelihood of post-decision
rulemaking proceedings. Judges will go directly to the court for disputes are particularly invited.
The Reform Act prescribes, to an judicial review, when sought. 17 U.S.C. More generally, the regulations
exceptionally detailed degree, the 803(d).6 implementing section 802(f) are
procedures that must be adopted for use At the same time, the Reform Act intended to insure that the manifest,
in proceedings before the Copyright reserves to the Register of Copyrights plenary authority of the Register of
Royalty Judges. These regulations track control over Copyright Act interpretive Copyrights to control interpretations of
those statutory requirements. Also, policy. The Register ‘‘may review for the Copyright Act is fully honored,
these regulations are often drawn from legal error the resolution by the while averting avoidable interruptions
the procedural regulations used by the Copyright Royalty Judges of a material and delays in ongoing proceedings.
Copyright Office for the conduct of question of substantive law under this Comments are sought on any possible
CARP proceedings. However, interested title that underlies or is contained in a refinements to these regulations that
persons are encouraged to carefully final determination of the Copyright would better meet these goals.
scrutinize these regulations, as these Royalty Judges.’’ 17 U.S.C. 802(f)(1)(D). Petitions to Participate.
CRB regulations do depart from the The statute also provides for referrals of Content. The Copyright Arbitration
CARP procedural regulations in a significant Copyright Act interpretive Royalty Panel regulations do not specify
issues to the Register, prior to a final the content of a notice of intent to
number of instances. Comments are
determination, during the course of participate. It has been the practice of
sought especially to identify any
ongoing Copyright Royalty Judge the Copyright Office to require, in the
possible, inadvertent inconsistencies
proceedings. Referral of a ‘‘material request for notices of intent to
between these regulations and the
participate, the claimant’s full name,
requirements of the Copyright Act. Any question of substantive law * * * ’’ is
address, telephone number, facsimile
comments that would bring to the discretionary, something one or more of
number (if any), and e-mail address (if
Board’s attention areas where further the presiding Copyright Royalty Judges
any); the phase or phases of the
procedural guidance would be helpful, ‘‘may request * * * ’’ 17 U.S.C.
proceeding that were involved, if
or where these regulations have created 802(f)(1)(A) (emphasis added), on their
applicable; 7 and a statement of intent to
unnecessary burdens, would be most motion or on the motion of a participant
fully participate. See, Ascertainment of
welcome. in a proceeding. But, if the material
Controversy for the 2002 Cable Royalty
The following items may be of question of substantive law is a ‘‘novel’’
Funds, 69 FR 44548, 44549 (July 26,
particular interest: one, ‘‘the Copyright Royalty Judges shall
2004). The Board is codifying this de
Reservation of Copyright Act Legal request a decision of the Register of
minimis information requirement in its
Issues to the Register of Copyrights. A Copyrights.’’ 17 U.S.C. 802(f)(1)(B) regulations.
distinctive feature of the adjudicative (emphasis added). These regulations In addition, the Copyright Act now
regime set up by the Reform Act is its provide procedures for the discretionary stipulates that a person must have a
formal division of fact and copyright and mandatory interlocutory referrals. ‘‘significant interest’’ in order to
law determinations. The Reform Act anticipates possible participate ‘‘in the proceeding.’’ 17
Under the Reform Act, Copyright instances where a determination of the U.S.C. 803(b)(2)(C). The Act does not
Royalty Judges are guaranteed ‘‘full Copyright Royalty Judges is perceived define a ‘‘significant interest’’; it is a
independence in making determinations by the Register of Copyrights to be term of art that had been used in the
concerning adjustments and inconsistent with the Register’s CARP program to screen petitions. See,
interpretation of the Copyright Act, but 37 CFR 251.62. In past practice, the
3 Subsection (a) of section 6 of the Reform Act,

the ‘‘effective date and transition provisions,’’ 6 This ‘‘full[y] independen[t]’’ role is very
Copyright Office has required a putative
required the appointment of one or more interim different from that of a typical, federal
participant to show some financial stake
Copyright Royalty Judges, within 90 days of administrative law judge (ALJ) rendering in the outcome of the proceeding in
enactment, to perform the functions of the recommended decisions for an agency. Compare, order to present a ‘‘significant interest.’’
permanent Copyright Royalty Judges until they are e.g., 46 CFR 502.227(a)(6) (Federal Maritime
appointed.
The regulations adopted herewith,
Commission retains plenary authority to override § 351.1(b)(1), simply carry forward the
4 See Copyright Act section 803(b)(6)(B), directing
decision of the ALJ); 30 U.S.C. 823(d)(2)(A)(ii)((I)
that the CARP regulations will serve as the ‘‘interim (ALJ’s unsupported factual decision is reversible by statutory language, without further
regulations’’ for the Copyright Royalty Judges until Federal Mine Safety and Health Review elaboration. Comments are invited on
the regulations under subparagraph (A) are adopted. Commission); 5 CFR 2423.41(b) (Federal Labor whether the Board’s regulations should
5 Ongoing proceedings that are being conducted Relations Authority has unrestricted authority to be amended to include more specific
under the CARP system regulations, 37 CFR Part reject ALJ’s decision ‘‘[w]henever exceptions are
251, will continue to use those regulations. filed’’; 10 CFR 2.341 (Nuclear Regulatory guidelines on ‘‘significant interest.’’
Similarly, the existing substantive provisions for Commission retains discretion to review ALJ
compulsory license rates and distributions, 37 CFR decisions for clear error); Model Adjudication 7 For an explanation of the two phases in cable

Parts 253–256, 258, and 260–262, will remain in Rules, Administrative Conference of the U.S., Rule and satellite royalty pool distribution proceedings,
effect, as codified in Chapter II, until superceded by 410, 11 T.M. Cooley L. Rev. 75 (1994) see, e.g., Distribution of 1998 and 1999 Cable
the decisions and regulations of the Copyright (recommending retention of plenary authority to Royalty Funds, 69 FR 3606, 3607 (January 26,
Royalty Judges pursuant to the Reform Act. review factual findings). 2004).

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Federal Register / Vol. 70, No. 103 / Tuesday, May 31, 2005 / Rules and Regulations 30903

Late Petitions. Section 351.1(d) of the 803(b)(5), directing the Copyright analyses during the course of an
regulations indicates that the Copyright Royalty Judges to resolve some evidentiary hearing. Comments are
Royalty Judges may accept late-filed controversies solely on a written record, sought on the validity of that
petitions to participate in a proceeding, without live testimony, in cases where assumption.
‘‘for substantial good cause shown, and there ‘‘is no genuine issue of material It should be noted that the regulations
if there is no prejudice to the fact, there is no need for evidentiary include, in § 351.12(a), a heightened
participants that have already filed hearings, and all participants in the threshold for invocation of this type of
petitions * * *.’’ This language is proceeding agree in writing to the discovery, calling for a showing ‘‘that,
essentially lifted from the Reform Act, procedure * * *.’’ 17 U.S.C. absent the discovery sought, [the
17 U.S.C. 803(b)(1)(A)(ii). It is 803(b)(5)(A). Board’s] ability to achieve a just
acknowledged that this statutory The statute also gives the Copyright resolution of the proceeding would be
language poses some ambiguities. Royalty Judges broad discretion to substantially impaired.’’ This standard
Presumably, ‘‘substantial good cause’’ impose paper proceedings ‘‘under such reflects the concern that motions for
requires a stronger showing than mere other circumstances as the Copyright additional discovery during the
‘‘good cause’’ and, in context, Royalty Judges consider appropriate.’’ proceedings can be costly and
‘‘prejudice’’ probably relates to some 17 U.S.C. 803(b)(5)(B). This provision disruptive, if misused as a litigation
impairment of a party’s ability to would apply in situations where not all tactic. Comments on this concern are
proceed, not merely the diminution of of the parties accede to paper solicited.
that party’s potential recovery. proceedings, but where live hearings Extension Policy; Date Computation.
The regulations, however, do not would not aid the Judges in their Board proceedings will be conducted
further flesh out these terms, leaving deliberations and any legal with limited staff resources, under
resolution of the potential issues they requirements could be met with paper schedules that are driven by statutory
raise to be resolved by the Copyright proceedings. Cf., Mathews v. Eldridge, deadlines. These proceedings will often
Royalty Board in future proceedings. 424 U.S. 319 (1976); United States v. involve multiple parties that will be
Comments are invited as to whether Florida E. Coast Ry. Co., 410 U.S. 224, laboring under the assumption that
some further guidance could or should 239 (1973); U.S. ex rel. Springfield other parties will comply with
be placed into the regulatory language. Terminal Ry. Co. v. Quinn, 14 F.3d 645, procedural timeliness requirements.
Filing Fees. Under section 652 (D.C. Cir. 1994). It is difficult to Accordingly, the new Board regulations
803(b)(2)(A) of the Copyright Act, a predict, in the abstract, exactly what include a provision, § 350.5(a), that
party seeking to participate in a royalty sort of controversies will be amenable to specifies the required content of an
fund distribution proceeding must pay a involuntary paper proceedings. These extension motion. It is not intended to
filing fee of $150. That filing fee regulations, at § 351.3(c)(1), require a create an unnecessarily restrictive or
requirement is waived, however, if ‘‘the party seeking an unconsented paper harsh extension policy. But extensions
contested amount of the claim is proceeding to show that such must be justified and should not be
$10,000 or less * * *.’’ Id., section proceedings would be legally taken for granted.
803(b)(4)(A). While the intent of this permissible. Comments are sought as to Section 350.5(b) explains how due
provision is quite clear, how it would be whether the regulations might go further dates should be computed. The
implemented is not. A claimant to a in specifying the situations where paper methodology is adopted from Rule 26,
royalty pool does not necessarily know proceedings may be imposed upon an Federal Rules of Appellate Procedure.
the value of the claim when it is unwilling participant. Claims to Funds in Royalty Pools.
submitted and cannot know the Discovery in Distribution Eligibility to receive copyright royalties
‘‘contested amount’’ until competing Proceedings. Section 803(b)(6)(C)(viii) of paid by cable systems, satellite carriers,
claims are weighed, after discovery and the Copyright Act requires the Board to and manufacturers and importers of
voluntary negotiations. Accordingly, the apply ‘‘[t]he rules and practices’’ used digital audio recording devices and
regulations will ask the claimants to by the Copyright Office for CARP media (‘‘DART’’) is contingent upon the
withhold their fee payments if they proceedings ‘‘relating to discovery in submission of a timely filed claim. See,
believe the ‘‘contested amount’’ of their proceedings * * * to determine the 17 U.S.C. 111, 119, and 1007. Cable and
claim will be $10,000 or less. Under the distribution of royalty fees * * *.’’ In satellite claims must be filed during the
regulations, § 351.1(b)(4), the Copyright the context of other Reform Act month of July; DART claims must be
Royalty Board will require payment of procedural requirements, ‘‘rules and filed during the months of January and
the filing fee at such time it appears that practices’’ appears to be a reference to February. Under the Reform Act, the
the ‘‘contested amount of the claim’’ the limited discovery in distribution next claims filings will be made under
will exceed $10,000. Persons who cases set forth at 37 CFR 251.45(c). the authority of the Copyright Royalty
believe that they are possibly going to be Accordingly, in contrast to the Judges ‘‘[t]o accept or reject royalty
entitled to a filing fee waiver should depositions and interrogatories claims * * * on the basis of
therefore delay submission of the $150 permitted in rate disputes (§ 351.5(c)), timeliness.’’ 17 U.S.C. 801(b)(4).
filing fees. It is not practicable for the discovery in distribution cases (§ 351.6) Under Copyright Office regulations in
Board to refund an erroneously paid fee. will allow only for production of effect prior to 2002, claims to these
Paper Proceedings. A problem of documents underlying written direct royalty pools were timely filed if they
copyright statutory license program and rebuttal statements. The 45-day were physically delivered to the
administration has been to provide period for discovery set forth in 37 CFR Copyright Office or mailed (as proven
access to the adjudicative process to 251.45(b) will also apply in these cases. by a United States Postal Service
persons with relatively small copyright Additional Discovery During postmark) within the applicable month.
royalty claims while, at the same time, Hearings. Section 351.12, infra, is The regulations adopted for the
not allowing small claimants to unfairly intended to implement section Copyright Royalty Board contain this
exploit settlement leverage by 803(b)(6)(C)(vi) of the Copyright Act, standard, too. However, the Board is
unreasonably prolonging proceedings. based on the assumption that this discontinuing an uncodified practice of
An important provision of the Reform provision is designed to allow certain the Copyright Office. It has been the
Act, addressing this problem, is section requests for supplementary reports or Copyright Office policy to consider a

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30904 Federal Register / Vol. 70, No. 103 / Tuesday, May 31, 2005 / Rules and Regulations

claim that was deposited with the averred that the use of a PIN would not The Claimant Groups also asked
United States Postal Service to be timely prevent fraud. Their comments noted (comments at 16–17) the Copyright
filed, in July, if it was physically that, in the single criminal proceeding Office to regard claims postmarked in
received in the agency’s mailroom on arising from the submission of July in foreign countries as timely,
August 1.8 This practice has created fraudulent royalty claims (U.S. v. Galaz, regardless of the date received. This
additional, unnecessary administrative D.D.C. Crim. No. 02–230), the crime proposition has previously been rejected
burdens. Future claimants are advised would not necessarily have been by the Copyright Office, in its
that the Board will not continue this prevented by the proposed PIN rulemaking proceedings for the
‘‘August-1-receipt’’ practice, but will requirement. The Claimant Groups also adoption of CARP procedures, for
adhere to the strict terms of the expressed concerns that the proposed cogent reasons. See, 59 FR 63025, 63039
regulations regarding filing by United PIN requirement would add burdens (December 7, 1994). If a claim is not
States mail. and cause logistical problems, received in July, the Board will accept
The Board is also codifying herewith especially for corporate claimants where only a United States Postal Service
provisions allowing for the filing of ‘‘the individuals filing for particular postmark with a July date for the same
claims electronically. In response to copyright owners may change over reasons as those expressed by the
disruptions and delays in mail service, time’’ and their PINs, personal to those Copyright Office in that decision. To
triggered by the anthrax episodes in late individuals, frequently would not avoid difficulties, claimants ought to
2001 and the subsequent relocation of correspond to the actual copyright submit their claims as early in July as
mail deliveries to a remote site for owners. Claimant Groups joint possible.
screening, the Copyright Office has comments, at 5. The Claimant Groups The forms to be used by the parties in
allowed additional methods for filing, proposed, as an alternative to the PIN making claims to the royalty pools will
accepting claims by e-mail submission proposal, use of an affirmation or reflect several other suggestions
or online submission and, in the case of certification at the end of the online presented in the comments: The forms
DART claims, filing by facsimile. The form that would serve as a ratification will not have a ‘‘filing status’’ line. Cf.,
history of these adjustments is detailed of the claim. Id., at 7–9 (discussing the Claimant Groups comments, at 15–16.
in the Notice of Proposed Rulemaking Electronic Signatures in Global and Paragraph 3 of the forms for claims to
published on October 18, 2004, 69 FR National Commerce Act, 15 U.S.C. 7001, share in cable and satellite royalty pools
61325, where the Copyright Office et seq.). The Claimant Groups pointed will state that music performing rights
proposed permanent changes to the out that their alternative proposal would organizations do not have to list the
CARP claims filing rules and invited be similar to the verifications used for names of their members and affiliates
public comments. As proposed by the trademark registrations at the U.S. and paragraph 5 will include a line for
Copyright Office, the amended filing Patent and Trademark Office, while the listing (a) the name of a copyrighted
regulations would provide, in addition Copyright Office’s PIN proposal was musical work performed on the
to hand delivery and mail filing, a similar to a proposal that was rejected identified television program, (b) the
permanent electronic filing system. This by the Federal Communications name of the writer, and (c) the name of
electronic filing system would be Commission. Id., at 9–12 (citing In the the publisher. Cf., separate ASCAP/BMI
similar to the system used since 2003. Matter of Electronic Filing of comments.
The Copyright Office’s proposed Documents in Rulemaking Proceedings, Finally, the Copyright Office’s
regulations also included a requirement Report and Order, 13 FCCRvd 11322 proposed rules included a couple of
that each claim would utilize a personal (1998)). technical items on which no comments
identification number (‘‘PIN’’) as a In view of the arguments set forth in were received: a requirement that, with
proxy for the original signature the Claimant Groups comments, and in respect to electronic claims filings, the
requirement for a hand-delivered or the absence of any support for the PIN filled-in forms must be received at the
mailed claim. 69 FR 61326–27. proposal, that proposal will not be government’s server by 5 p.m. on the
Comments on the proposed filing rules, adopted in the Board’s regulations last day of the applicable statutory filing
submitted jointly by representatives of promulgated with this notice. The Board period and the elimination of filing by
all of the Phase I copyright owner will rely upon the verification that facsimile for DART claims. The Board is
claimant groups that had been accompanies each claim and the adopting those two proposals.
previously allocated royalties in cable potential of criminal sanctions for false
and satellite proceedings (‘‘Claimant List of Subjects
claims.
Groups’’),9 were largely directed against In making this decision, it should be 37 CFR Part 301
the adoption of this proposed PIN emphasized that, while the copyright Copyright, Organization and functions
requirement. The Claimant Groups owners represented stand to lose the (government agencies).
most from any claims fraud that may
8 It was concluded that physical receipt of mail
occur, the officials charged with 37 CFR Part 302
on August 1 provided an ‘‘absolute assurance’’ that
the claim had been mailed in the United States (and administering the statutory license Copyright, Freedom of information,
therefore filed) in July. See, MGM Studios, Inc. v. royalty pools have a profound sense of Reporting and recordkeeping
Peters, 309 F. Supp. 2d 48 (D.D.C., 2004), and responsibility to do whatever reasonably requirements.
Universal City Studios, LLLP v. Peters, 308 F. Supp.
2d 1, affirmed sub nom. Universal City Studios,
might be done by the government to 37 CFR Part 350
LLLP v. Peters, D.C. Cir. Nos. 04–5138 & 04–5142 avoid fraud in the distribution of the
(April 8, 2005). royalty pools. Comment is sought as to Administrative practice and
9 The Claimant Groups’ joint comments were
any further steps that might be taken to procedure, Copyright, Lawyers.
signed by representatives of the National discourage fraud or other mischief in
Association of Broadcasters and the Broadcaster 37 CFR Part 351
Claimant Group; the Program Suppliers; the Joint the claims submission process.10
Administrative practice and
Sports Claimants; the Public Television Claimants;
Broadcast Music Inc. (BMI); the American Society 10 It should be noted that any suggestions made procedure, Copyright.
of Composers, Authors and Publishers (ASCAP); regarding the filing of claims will not be
SESAC, Inc.; the Devotional Claimants; National implemented for the filing of cable and satellite considered, and if accepted, will be implemented
Public Radio; and the Canadian Claimants. claims in July 2005. Such comments will be at a later date.

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Federal Register / Vol. 70, No. 103 / Tuesday, May 31, 2005 / Rules and Regulations 30905

37 CFR Part 352 Room LM–401 of the James Madison records shall be directed to or accepted
Administrative practice and Memorial Building, Monday through by a Copyright Royalty Judge.
procedure, Copyright. Friday, between 8:30 a.m. and 5 p.m., (c) Fees. For services rendered in
and be addressed as follows: Copyright connection with document location and
37 CFR Part 353 Royalty Board, Library of Congress, reproduction, the following fees shall
Administrative practice and James Madison Memorial Building, LM– apply:
procedure, Copyright. 401, 101 Independence Avenue, SE., (1) For photocopies made by
Washington, DC 20559–6000. Copyright Royalty Board staff, the
37 CFR Part 354 charge will be 40 cents per page copied.
(c) If hand delivered by a commercial
Administrative practice and courier (excluding Federal Express, (2) For the time Copyright Royalty
procedure, Copyright. United Parcel Service and similar Board staff spends in fulfilling a search
courier services), the envelope must be request or providing other services, the
37 CFR Part 360
delivered to the Congressional Courier charge will be $65 per hour or fraction
Cable television, Claims, Copyright, Acceptance Site (CCAS) located at thereof.
Recordings, Satellites, Television. Second and D Street, NE., Washington, SUBCHAPTER B—COPYRIGHT ROYALTY
Authority and Issuance DC, Monday through Friday, between BOARD RULES AND PROCEDURES
8:30 a.m. and 4 p.m., and be addressed
■ For the reasons set forth in the as follows: Copyright Royalty Board, PART 350—GENERAL
preamble, the Library of Congress Library of Congress, James Madison ADMINISTRATIVE PROVISIONS
establishes a new Chapter III in Title 37 Memorial Building, LM–403, 101
of the Code of Federal Regulations to Sec.
Independence Avenue, SE., 350.1 Scope.
read as follows: Washington, DC. 350.2 Representation.
CHAPTER III—COPYRIGHT ROYALTY (d) Correspondence and filings for the 350.3 Caption required.
BOARD, LIBRARY OF CONGRESS Copyright Royalty Board may not be 350.4 Filing and service.
SUBCHAPTER A—GENERAL PROVISIONS delivered by means of overnight 350.5 Time.
delivery services such as Federal 350.6 Construction and waiver.
Part
Express, United Parcel Service, etc., due Authority: 17 U.S.C. 803.
301—Organization to delays in processing receipt of such
302—Public access to records deliveries. § 350.1 Scope.
SUBCHAPTER B—COPYRIGHT ROYALTY This subchapter governs procedures
BOARD RULES AND PROCEDURES § 301.3 Office location. generally applicable to proceedings
350—General administrative provisions The offices of the Copyright Royalty before the Copyright Royalty Board in
351—Proceedings Board are located in the Library of making determinations and adjustments
352—Determinations Congress, James Madison Memorial pursuant to the Copyright Act, 17 U.S.C.
353—Rehearing Building, Room LM–403, 101 801(b).
354—Submissions to the Register of Independence Avenue, S.E.,
Copyrights Washington, D.C. 20559–6000. § 350.2 Representation.
360—Filing of claims to royalty fees collected Parties in proceedings before the
under compulsory license PART 302—PUBLIC ACCESS TO Board may represent themselves or be
SUBCHAPTER A—GENERAL PROVISIONS RECORDS represented by an attorney. The
appearance of an attorney on behalf of
PART 301—ORGANIZATION Sec.
any party constitutes a representation
302.1 Public records.
Sec. 302.2 Public access. that the attorney is a member of the bar,
301.1 Copyright Royalty Board. in one or more states, in good standing.
Authority: 5 U.S.C. 552.
301.2 Official addresses.
301.3 Office location. § 350.3 Caption required.
§ 302.1 Public records.
All pleadings and documents filed in
Authority: 17 U.S.C. 801. (a) All final determinations of the a proceeding before the Copyright
§ 301.1 Copyright Royalty Board. Copyright Royalty Board, and the Royalty Board must be identified in a
The Copyright Royalty Board is the relevant facts and reasons for those caption that identifies the proceeding by
institutional entity in the Library of determinations, will be published in the caption and docket number.
Congress that will house the Copyright Federal Register.
(b) Records of proceedings before the § 350.4 Filing and service.
Royalty Judges, appointed pursuant to
17 U.S.C. 801(a), and their staff. Board will be available for public (a) Filing of pleadings. The submitting
inspection at the Copyright Royalty party shall deliver an original and five
§ 301.2 Official addresses. Board offices, to the extent that copies of all filings to the Copyright
All claims, pleadings, and general disclosure is required under the Royalty Board in accordance with the
correspondence intended for the Freedom of Information Act, 5 U.S.C. provisions set forth in § 301.2 of this
Copyright Royalty Board must be 552. chapter. In no case shall a party tender
addressed as follows: any document by facsimile
(a) If sent by mail (including § 302.2 Public access. transmission.
overnight delivery using United States (a) Location. The records of the (b) Exhibits. All exhibits must be
Postal Service Express Mail), the Copyright Royalty Board will be located included with the pleadings they
envelope should be addressed to: at the address provided in § 301.3 of this support. In the case of exhibits whose
Copyright Royalty Board, P.O. Box chapter. bulk or whose cost of reproduction
70977, Southwest Station, Washington, (b) Requests. Requests for information would unnecessarily encumber the
DC 20024–0977. or access to records must be directed to record or burden the party, the Board
(b) If hand delivered by a private the Copyright Royalty Board. No may reduce the number of required
party, the envelope must be brought to requests for information or access to copies.

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(c) English language translations. all motions, objections, oppositions, and 351.4 Written direct statements.
Each submission that is in a language replies on the other parties or their 351.5 Discovery in royalty rate proceedings.
other than English shall be accompanied counsel by means no slower than 351.6 Discovery in distribution
by an English-language translation, duly overnight express mail on the same day proceedings.
351.7 Settlement conference.
verified under oath to be a true the pleading is filed. If a party is willing 351.8 Pre-hearing conference.
translation. Any other party to the to accept service of a document 351.9 Conduct of hearings.
proceeding may, in response, submit its electronically (i.e., by e-mail), followed 351.10 Evidence.
own English-language translation, by a hard copy, first-class mail of the 351.11 Rebuttal proceedings.
similarly verified. hard copy may be used in lieu of 351.12 Requests for additional discovery
(d) Affidavits. The testimony of each express mail or other expedited during the hearing in royalty rate
witness shall be accompanied by an delivery. proceedings.
affidavit or a declaration made pursuant 351.13 Closing the record.
to 28 U.S.C. 1746 supporting the § 350.5 Time. 351.14 Transcript and record.
testimony. (a) Computation. To compute the due 351.15 Proposed findings of fact and
(e) Subscription and verification. (1) date for filing and serving any document conclusion of law.
Parties represented by counsel. The or performing any other act directed by Authority: 17 U.S.C. 803, 805.
original of all documents filed by any an order of the Copyright Royalty Board
party represented by counsel shall be § 351.1 Initiation of proceedings.
or the Board’s rules:
signed by at least one attorney of record (1) Exclude the day of the act, event, (a) Notice of commencement;
and shall list the attorney’s address and or default that begins the period. solicitation of petitions to participate.
telephone number. Submissions signed (2) Exclude intermediate Saturdays, All proceedings before the Copyright
by an attorney for a party need not be Sundays, and legal holidays when the Royalty Board to make determinations
verified or accompanied by an affidavit. period is less than 11 days, unless stated and adjustments of reasonable terms
The signature of an attorney constitutes in calendar days. and rates of royalty payments, and to
certification that, to the best of his or (3) Include the last day of the period authorize the distribution of royalty
her knowledge and belief, there is good unless it is a Saturday, Sunday, legal fees, shall be initiated by publication in
ground to support the document, and holiday, or a day on which the weather the Federal Register of a notice of the
that it has not been interposed for or other conditions render the Board’s initiation of proceedings calling for the
purposes of delay. office inaccessible. filing of petitions to participate in the
(2) Parties representing themselves. (4) As used in this rule, ‘‘legal proceeding.
The original of all documents filed by a holiday’’ means New Year’s Day, Martin (b) Petitions to participate. (1) Royalty
party not represented by counsel shall Luther King, Jr.’s Birthday, Presidents’ rate proceedings. (i) Single petition.
be signed by that party and list that Day, Memorial Day, Independence Day, Each petition to participate filed in a
party’s address and telephone number. Labor Day, Columbus Day, Veterans’ royalty rate proceeding must include:
The signature will constitute the party’s Day, Thanksgiving Day, Christmas Day, (A) The petitioner’s full name,
certification that, to the best of his or and any other day declared a holiday by address, telephone number, facsimile
her knowledge and belief, there is good the President or the Congress. number (if any), and e-mail address (if
ground to support the document, and (b) Extensions. A party seeking an any);
that it has not been interposed for extension may do so by written motion. (B) A description of the petitioner’s
purposes of delay. An extension motion must state: significant interest in the subject matter
(3) Verification. The original of a (1) The date on which the action or of the proceeding; and
document that is not signed, or is signed submission is due; (C) A statement of the petitioner’s
with the intent to defeat the purpose of (2) The length of the extension sought; intention to fully participate in the
this section, may be stricken as sham (3) The date on which the action or royalty rate proceeding;
and false, and the matter shall proceed submission would be due if the (ii) Joint petition. Petitioners with
as though the document had not been extension were allowed; similar interests may, in lieu of filing
filed. (4) The reason or reasons why the individual petitions, file a single
(f) Oppositions and replies. delay is unavoidable; and petition. Each joint petition must
Oppositions to motions shall be filed (5) The justification for the amount of include:
within seven business days of the filing additional time being sought. (A) The full name, address, telephone
of the motion, and replies to oppositions number, facsimile number (if any), and
shall be filed within five business days § 350.6 Construction and waiver. e-mail address (if any) of the person
of the filing of the opposition. The regulations of the Copyright filing the petition;
(g) Service list. The Copyright Royalty Royalty Board are intended to provide (B) A list identifying all participants
Board will compile and distribute, to efficient and just administrative to the joint petition;
those parties who have filed a petition proceedings and will be construed to (C) A description of the participants’
to participate that has been accepted by advance these purposes. For purposes of significant interest in the subject matter
the Board, the official service list of the an individual proceeding, the of the proceeding;
proceeding. In all filings, a copy shall be provisions of this subchapter may be (D) A statement of the participants’
served upon counsel of all other parties suspended or waived, in whole or in intention to fully participate in the
identified in the service list, or, if the part, upon a showing of good cause, to royalty rate proceeding; and
party is unrepresented by counsel, upon the extent allowable by law. (E) If the joint petition is filed by
the party itself. Proof of service shall counsel or a representative of one or
accompany the filing. Parties shall PART 351—PROCEEDINGS more of the participants that are named
notify the Board and all parties of any Sec.
in the joint petition, a statement from
change in the name or address to which 351.1 Initiation of proceedings. such counsel or representative certifying
service shall be made. 351.2 Voluntary negotiation period; that, as of the date of submission of the
(h) Service method. During the course settlement. joint petition, such counsel or
of a proceeding, each party must serve 351.3 Controversy and further proceedings. representative has the authority and

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consent of the participants to represent notice of commencement of a and rates, the participating parties
them in the royalty rate proceeding. proceeding, subject to the qualified report that a settlement has been
(2) Distribution proceedings. (i) Single exception set forth in paragraph (d) of reached by some or all of the parties, the
petition. Each petition to participate this section. Copyright Royalty Board will publish
filed in a royalty distribution (4) Filing fee. A petition to participate the settlement in the Federal Register
proceeding must include: must be accompanied with a filing fee for notice and comment from those
(A) The petitioner’s full name, of $150 or the petition will be rejected. bound by the terms, rates, or other
address, telephone number, facsimile Payment shall be made to the Copyright determination set by the agreement. The
number (if any), and e-mail address (if Royalty Board. If a check is Board may decline to adopt the
any); subsequently dishonored, the petition agreement as a basis for statutory terms
(B) In a cable or satellite royalty will be rejected. If the petitioner and rates for participants that are not
distribution proceeding, identification believes that the contested amount of parties to the agreement if the Board
of whether the petition covers a Phase that petitioner’s claim will be less than concludes that the agreement does not
I proceeding (the initial part of a $10,000, petitioner shall so state in the provide a reasonable basis for setting
distribution proceeding where royalties petition to participate and should not statutory terms or rates.
are divided among the categories or include payment of the $150 filing fee.
groups of copyright owners), a Phase II § 351.3 Controversy and further
If it becomes apparent during the course proceedings.
proceeding (where the money allotted to of the proceedings that the contested
each category is subdivided among the (a) Declaration of controversy. If a
amount of the claim is more than
various copyright owners within that settlement has not been reached within
$10,000, the Board will require payment
category), or both; the voluntary negotiation period, the
of the filing fee at such time.
(C) A description of the petitioner’s (c) Acceptance and rejection of Copyright Royalty Board will issue an
significant interest in the subject matter petitions to participate. A petition to order declaring that further proceedings
of the proceeding; and participate will be deemed to have been are necessary. The procedures set forth
(D) A statement of the petitioner’s allowed by the Copyright Royalty Board at §§ 351.4, et seq., for formal hearings
intention to fully participate in the unless the Board has determined that will apply, unless the abbreviated
royalty distribution proceeding; the petitioner lacks a significant interest procedures set forth in paragraphs (b)
(ii) Joint petition. Petitioners with in the proceeding or that the petition is and (c) of this section are invoked by the
similar interests may, in lieu of filing otherwise invalid. Copyright Royalty Board.
individual petitions, file a single (d) Late petitions to participate. The (b) Small claims in distribution
petition. Each joint petition must Copyright Royalty Board may, for proceedings. (1) General. If, in a
include: substantial good cause shown, and if distribution proceeding, the contested
(A) The full name, address, telephone there is no prejudice to the participants amount of a claim is $10,000 or less, the
number, facsimile number (if any), and that have already filed petitions, accept Copyright Royalty Board shall decide
e-mail address (if any) of the person late petitions to participate at any time the controversy on the basis of the filing
filing the petition; up to the date that is 90 days before the of the written direct statement by each
(B) A list identifying all participants date on which participants in the participant (or participant group filing a
to the joint petition; proceeding are to file their written joint petition), the response by any
(C) In a cable or satellite royalty direct statements. However, petitioners opposing participant, and one optional
distribution proceeding, identification whose petitions are filed more than 30 reply by a participant who has filed a
of whether the petition covers a Phase days after publication of notice of written direct statement.
I proceeding (the initial part of a (2) Bad faith inflation of claim. If the
commencement of a proceeding are not
distribution proceeding where royalties Copyright Royalty Board determines
eligible to object to a settlement reached
are divided among the categories or that a participant asserts in bad faith an
during the voluntary negotiation period.
groups of copyright owners), a Phase II amount in controversy in excess of
proceeding (where the money allotted to § 351.2 Voluntary negotiation period; $10,000 for the purpose of avoiding a
each category is subdivided among the settlement. determination under the procedure set
various copyright owners within that (a) Commencement; duration. Within forth in paragraph (b)(1) of this section,
category), or both; thirty-five business days from the date the Copyright Royalty Board shall
(D) A description of the participants’ a proceeding is initiated by notice in the impose a fine on that participant in an
significant interest in the subject matter Federal Register pursuant to § 351.1(a), amount not to exceed the difference
of the proceeding; the Copyright Royalty Board will between the actual amount distributed
(E) A statement of the participants’ announce the beginning of a voluntary and the amount asserted by the
intention to fully participate in the negotiation period and will make a list participant.
royalty distribution proceeding; and of the participants available to the (c) Paper proceedings. (1) Where used.
(F) If the joint petition is filed by participants in the particular The procedure under this paragraph (c)
counsel or a representative of one or proceeding. The voluntary negotiation will be applied in cases in which there
more of the participants that are named period shall last three months, after is no genuine issue of material fact,
in the joint petition, a statement from which the parties shall notify the Board there is no need for evidentiary
such counsel or representative certifying in writing as to whether a settlement has hearings, and all participants in the
that, as of the date of submission of the been reached. proceeding agree in writing to the
joint petition, such counsel or (b) Settlement. (1) Distribution procedure. In the absence of an
representative has the authority and proceedings. To the extent that a agreement in writing among all
consent of the participants to represent settlement or partial settlement has been participants, this procedure may be
them in the royalty distribution reached in a distribution proceeding, applied by the Board, in its discretion,
proceeding. that agreement will provide the basis for either on the motion of a party or by the
(3) Filing deadline. A petition to a full or partial distribution. Copyright Royalty Board sua sponte. A
participate shall be filed by no later than (2) Royalty rate proceedings. If, in a party requesting use of paper
30 days after the publication of the proceeding to determine statutory terms proceedings, in the absence of

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agreement among the other participants, expected to arise in the course of the participants obligated to pay royalties
should include in the motion a showing proceeding and might warrant shall collectively be permitted to take
that the use of paper proceedings in the certification to the Register of no more than 10 depositions and secure
particular case would meet any due Copyrights under 17 U.S.C. 802(f). Cf., responses to no more than 25
process or other legal requirements. 37 CFR Part 354. interrogatories.
(2) Course of procedure. Paper (c) Amended written direct
proceedings will be decided on the basis statements. A participant in a § 351.6 Discovery in distribution
proceedings.
of the filing of the written direct proceeding may amend a written direct
statement by the participant (or statement based on new information In distribution proceedings, the Board
participant group filing a joint petition), received during the discovery process, shall designate a 45-day period
the response by any opposing within 15 days after the end of the following the filing of written direct and
participant, and one optional reply by a discovery period. An amended written rebuttal statements within which parties
participant who has filed a written direct statement must explain how it may request of an opposing party
direct statement. Before a decision differs from the written direct statement nonprivileged underlying documents
becomes final in a case utilizing paper it will amend and must demonstrate related to the written exhibits and
proceedings, the Copyright Royalty that the amendment is based on new testimony.
Board will offer the participants the information received during the § 351.7 Settlement conference.
opportunity to comment on the discovery process. The participant A post-discovery settlement
decision. amending its written direct statement conference will be held among the
may file either the amended portions of participants, within 21-days after the
§ 351.4 Written direct statements. the written direct statement or submit
(a) Required filing; deadline. All close of discovery, outside of the
complete new copies at its option. presence of the Copyright Royalty
parties who have filed a petition to
participate in the hearing must file a § 351.5 Discovery in royalty rate Board. Immediately after this conference
written direct statement. The deadline proceedings. the participants shall file with the
for the filing of the written direct (a) Schedule. Following the Copyright Royalty Board a Joint
statement will be specified by the submission to the Copyright Royalty Settlement Conference Report indicating
Copyright Royalty Board, not earlier Board of written direct statements by the extent to which the participants
than 4 months, nor later than 5 months, the participants in a royalty rate have reached a settlement.
after the end of the voluntary proceeding, and after conferring with § 351.8 Pre-hearing conference.
negotiation period set forth in § 351.2. the participants, the Copyright Royalty
In the absence of a complete
(b) Content required. (1) Testimony. Board will issue a discovery schedule.
settlement in a proceeding not subject to
The written direct statement shall Discovery shall be permitted for a
the abbreviated procedures set forth in
include all testimony, including each period of 60 days, except for discovery
§§ 351.3(b) and (c), a hearing will be
witness’s background and ordered by the Copyright Royalty Board
scheduled expeditiously so as to allow
qualifications, along with all the in connection with the resolution of
the Board to conduct hearings and issue
exhibits to be presented in the direct motions, orders, and disputes pending
its final determination in the proceeding
statement. at the end of such period. The discovery
within the time allowed by the
(2) Designated testimony. Each schedule will include a date for the
Copyright Act. Prior to the hearing, the
participating party may designate a post-discovery settlement conference
Board may conduct a prehearing
portion of past records, including addressed in § 351.7.
conference to assist in setting the order
records of the Copyright Royalty (b) Document production. A
of presentation of evidence and the
Tribunal or Copyright Arbitration participant in a royalty rate proceeding
appearance of witnesses at the hearing.
Royalty Panels, that it wants included in may request of an opposing participant
its direct statement. If a party intends to nonprivileged documents that are § 351.9 Conduct of hearings.
rely on any part of the testimony of a directly related to the written direct (a) By panels. Hearings will be
witness in a prior proceeding, the statement or written rebuttal statement conducted by all Copyright Royalty
complete testimony of that witness (i.e., of that participant. Any objection to Judges sitting as a panel.
direct, cross and redirect examination) such a request shall be resolved by a (b) Role of Chief Judge. The Chief
must be designated. The party motion or request to compel production. Copyright Royalty Judge may preside
submitting such designated testimony The motion must show how the over such collateral and administrative
shall include a copy of that testimony disputed document or documents proceedings, and over proceedings
with the written direct statement. would actually be relevant to the under section 803(b)(1) through (5) of
(3) Claim. In the case of a royalty moving party’s case and that the the Copyright Act, as the Chief Judge
distribution proceeding, each party information sought is not readily considers appropriate. Subject to the
must state in the written direct available to the moving participant in a vote of the Copyright Royalty Judges,
statement its percentage or dollar claim form or format that would be the Chief Judge shall have the
to the fund. In the case of a rate (or substantially less burdensome to responsibility for:
rates) proceeding, each party must state produce. The motion must also include (1) Setting the order of presentation of
its requested rate. No party will be a statement that the parties had evidence and appearance of witnesses;
precluded from revising its claim or its conferred and were unable to resolve (2) Administering oaths and
requested rate at any time during the the matter. affirmations to all witnesses;
proceeding up to, and including, the (c) Depositions and interrogatories. In (3) Announcing the Board’s ruling on
filing of the proposed findings of fact a proceeding to determine royalty rates, objections and motions and all rulings
and conclusions of law. the participants entitled to receive with respect to introducing or excluding
(4) Material questions. Under a royalties shall collectively be permitted documentary or other evidence. In all
separate heading, the written direct to take no more than 10 depositions and cases, whether there are an even number
statement shall set forth any ‘‘material secure responses to no more than 25 of Judges sitting at the hearing, with the
question of substantive law’’ that is interrogatories. Similarly, the exception of a hearing pursuant to 17

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U.S.C. 803(a)(2), it takes a majority vote presented in extract form, and (iv) Studies involving statistical
to grant a motion or sustain an submitted as evidence. methodology.
objection. A tie vote will result in the (d) Copies. Anyone presenting (A) The formula used for statistical
denial of a motion or the overruling of documents as evidence must present estimates;
the objection; copies to all other participants in the (B) The standard error for each
(4) Regulating the course of the proceedings, or their attorneys, and component;
proceedings and the decorum of the afford them an opportunity to examine (C) The test statistics, the description
parties and their counsel, and insuring the documents in their entirety and offer of how the tests were conducted, related
that the proceedings are fair and into evidence any other portion that computations, computer programs, and
impartial; and may be considered material and all final results; and
(5) Announcing the schedule of relevant. However, if a publicly (D) Summarized descriptions of input
subsequent proceedings. available document issued by a data and, if requested, the input data
(c) Opening statements. In each governmental entity (such as an official themselves.
distribution or rate proceeding, each report, decision, opinion, or published (f) Objections; offers of proof. Parties
party may present its opening statement scientific or economic data) is offered in are entitled to raise objections to
summarizing its written direct evidence, it may be offered instead by evidence on any proper ground during
statement. identifying the document and signaling the course of the hearing, including an
the relevant parts. objection that an opposing party has not
§ 351.10 Evidence. (e) Introduction of studies and furnished unprivileged underlying
(a) Admissibility. All evidence that is analyses. If studies or analyses are documents. If the Board rejects or
relevant and not unduly repetitious or offered in evidence, they shall state excludes testimony, the participant
privileged, shall be admissible. Written clearly the study plan, all relevant proffering the testimony may submit an
testimony and exhibits will be received assumptions, the techniques of data offer of proof for the record. In the case
into the record, except where the Board collection, and the techniques of of documentary or written evidence, a
sustains an objection. No evidence, estimation and testing. The facts and copy of such evidence shall be marked
including exhibits, may be submitted judgments upon which conclusions are for identification and shall constitute
without a sponsoring witness, except based shall be stated clearly, together the offer of proof.
matters of which the Board may take with any alternative courses of action (g) New documents for use in cross-
official notice. considered. If requested, tabulations of examination. Documents that have not
(b) Examination of witnesses. All input data shall be made available to the been identified and exchanged in
witnesses shall be required to take an Board. advance may be shown to a witness on
oath or affirmation before testifying. (1) Statistical studies. Statistical cross-examination. However, copies of
Parties are entitled to conduct direct studies offered in evidence shall be such documents must be distributed to
examination (consisting of the accompanied by a summary of their the Board and to the other participants
testimony of the witness in the written assumptions, their study plans, and before being shown to the witness at the
direct statement and an oral summary of their procedures. Supplementary details time of cross-examination, unless the
that testimony); cross-examination shall be included in appendices. For Board directs otherwise. If the
(limited to matters raised on direct each of the following types of statistical document is not, or will not be,
examination); and redirect examination studies the following should be supported by a witness for the cross-
(limited to matters raised on cross- furnished: examining party, that document can be
examination). The Board may limit the (i) Sample surveys. used solely to impeach the witness’s
number of witnesses or limit (A) A clear description of the survey direct testimony.
questioning to avoid cumulative design, the definition of the universe § 351.11 Rebuttal proceedings.
testimony. under consideration, the sampling frame Written rebuttal statements shall be
(c) Documentary evidence. (1) and units, the validity and confidence filed at a time designated by the
Submission as exhibits. Evidence that is limits on major estimates; and Copyright Royalty Board upon
submitted in the form of documents or (B) An explanation of the method of conclusion of the hearing of the direct
detailed data and information shall be selecting the sample and of the case, in the same form and manner as
presented as exhibits. characteristics which were measured the written direct statement, except that
(2) Separation of irrelevant portions. and counted. the claim or the requested rate shall not
Relevant and material matter embraced (ii) Econometric investigations. have to be included if it has not changed
in a document containing other matter (A) A complete description of the from the written direct statement.
not material or relevant or not intended econometric model, the reasons for each Further proceedings at the rebuttal stage
as evidence must be plainly designated assumption, and the reasons for the shall follow the schedule ordered by the
as the matter offered in evidence, and statistical specification; Board.
the immaterial or irrelevant parts shall (B) A clear statement of how any
be marked clearly so as to show they are changes in the assumptions might affect § 351.12 Requests for additional discovery
not intended as evidence. the final result; and during the hearing in rate proceedings.
(3) Bulky exhibits. In cases where a (C) Any available alternative studies (a) A participant may, in the course of
document in which material and that employ alternative models and a royalty rate hearing, request of an
relevant matter occurs is of such bulk variables, if requested. opposing participant or witness other
that it would unnecessarily encumber (iii) Experimental analysis. relevant information. The request may
the record, it may be marked for (A) A complete description of the be made by means of written motion or
identification and the relevant and design, the controlled conditions, and oral motion on the record. The
material parts, once properly the implementation of controls; and Copyright Royalty Board will allow
authenticated, may be read into the (B) A complete description of the such request only if they determine that,
record. In such instances, a true copy of methods of observation and adjustment absent the discovery sought, their ability
the material and relevant matter may be of observation. to achieve a just resolution of the

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proceeding would be substantially conclusions, briefs or memoranda of 353.1 When granted.


impaired. law, or may be directed by the Board to 353.2 Form and content of rehearing
(b) In determining whether discovery do so. Such filings, and any replies to motions.
will be granted under this section, the 353.3 Procedure on rehearing.
them, shall take place at such time after
353.4 Filing deadline.
Copyright Royalty Board will consider— the record has been closed as the Board 353.5 Participation not required.
(1) Whether the burden or expense of directs.
producing the requested information or (b) Failure to file when directed to do Authority: 17 U.S.C. 803.
materials outweighs the likely benefit, so shall be considered a waiver of the § 353.1 When granted.
taking into account the needs and right to participate further in the
A motion for rehearing may be filed
resources of the participants, the proceeding unless good cause for the
by any participant in the relevant
importance of the issues at stake, and failure is shown.
the probative value of the requested (c) Proposed findings of fact shall be proceeding. The Copyright Royalty
information or materials in resolving numbered by paragraph and include all Board may grant rehearing upon a
such issues; basic evidentiary facts developed on the showing that any aspect of the Board’s
(2) Whether the requested information record used to support proposed determination may be erroneous.
or materials would be unreasonably conclusions, and shall contain Rehearing will be granted only in
cumulative or duplicative, or are appropriate citations to the record for exceptional cases, however, and should
obtainable from another source that is each evidentiary fact. Proposed not be sought merely to reargue a rate
more convenient, less burdensome, or conclusions shall be stated and or distribution level determination that
less expensive; and numbered by paragraph separately. falls within the zone of reasonableness
(3) Whether the participant seeking established by the record.
the discovery had an ample opportunity PART 352—DETERMINATIONS § 353.2 Form and content of rehearing
by previous discovery in the proceeding motions.
Sec.
or by other means to obtain the 352.1 How made. A motion for rehearing shall not
information sought. 352.2 Timing. exceed 10 pages in length and must set
(c) This section shall not apply to any 352.3 Final determinations. forth, in the beginning of its text, a brief
proceeding scheduled to commence
Authority: 17 U.S.C. 803. summary statement of the aspects of the
after December 31, 2010.
determination believed by the moving
§ 352.1 How made. participant to be without evidentiary
§ 351.13 Closing the record.
To close the record of a hearing, the Except for decisions authorized by support in the record or contrary to legal
Chief Judge shall make an law to be made by a single Copyright requirements.
announcement that the taking of Royalty Judge, determinations of the
Board in a proceeding will be made by § 353.3 Procedure on rehearing.
testimony has concluded. In its
discretion the Copyright Royalty Board a majority of the Copyright Royalty Upon receipt of a motion for
may close the record as of a future Judges. The opinion or opinions of the rehearing, the Copyright Royalty Board
specified date, and all time for exhibits majority and any dissenting opinion will issue an order either denying the
yet to be prepared to be admitted, will be included in the determination. motion or ordering further proceedings.
provided that the parties to the Each determination by the Board will be No participant shall file a response to a
proceeding stipulate on the record that transmitted to the Register of Copyrights rehearing motion, unless such response
they waive the opportunity to cross- to enable review for consistency with is allowed by order of the Copyright
examine or present evidence with the Copyright Act on the day it is Royalty Board.
respect to such exhibits. The record in issued.
§ 353.4 Filing deadline.
any hearing that has recessed may not § 352.2 Timing. A motion for hearing must be filed
be closed by the Chief Judge before the The Copyright Royalty Board will within 10 days after the date on which
day on which the hearing is to resume, issue its determination within 11 the Copyright Royalty Board delivers to
except upon ten days’ notice to all months of the date of the post-discovery the participants an initial
parties. settlement conference or 15 days before determination.
§ 351.14 Transcript and record. the expiration of the existing rates or
terms in a proceeding to determine § 353.5 Participation not required.
(a) An official reporter for the In any case in which a response to a
successors to rates or terms that will
recording and transcribing of hearings rehearing motion is allowed, or
expire on a specific date, whichever
shall be designated by the Copyright rehearing is granted, an opposing party
date first occurs.
Royalty Board. Anyone wishing to shall not be required to participate in
inspect the transcript of a hearing may § 352.3 Final determinations. the rehearing. The Copyright Royalty
do so at the offices of the Board. The determination by the Board in a Board will not draw any negative
(b) The transcript of testimony and all proceeding will become final 15 days inference from a lack of participation in
exhibits, documents, filings and other after it is issued, unless it is withdrawn a rehearing. However, participants
items submitted in the course of a by the Board on its own motion, should be aware that nonparticipation
proceeding shall constitute the official suspended pending rehearing in rehearing proceedings may limit the
written record. The written record, proceedings, or the Register of scope of their participation in judicial
along with the Board’s final Copyrights advises the Board that its review proceedings as set forth in 17
determination, shall be available at the determination is inconsistent with the U.S.C. 803(d)(1).
Board’s offices for public inspection and Copyright Act. The final determination
copying. will be published in the Federal PART 354—SUBMISSIONS TO THE
§ 351.15 Proposed findings of fact and Register. REGISTER OF COPYRIGHTS
conclusions of law. Sec.
PART 353—REHEARING
(a) Any party to the proceeding may 354.1 Material questions of copyright law.
file proposed findings of fact and Sec. 354.2 Novel questions.

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354.3 Register of Copyrights’ authority to shall issue an appropriate referral. The they are consistent with the current
redesignate referrals. referral will identify the Judge or Judges decisions, determinations, or rulings of
354.4 Consultation regarding acts required voting in favor of the referral, the issue the Register of Copyrights or the
by the Register of Copyrights. to be referred, and the schedule for the Librarian of Congress), or the former
354.5 Jurisdiction of the Copyright Royalty
Board unaffected.
filing of briefs by the parties of the Copyright Royalty Tribunal.
issues. After the briefs and other (b) Procedures. The procedures set
Authority: 17 U.S.C. 802. relevant materials are received, they forth for the discretionary referral of
§ 354.1 Material questions of copyright will be transmitted to the Register of material questions of copyright law to
law. Copyrights. A Copyright Royalty Judge the Register of Copyrights by the
who voted against the referral who Copyright Royalty Board, set forth in
(a) Discretionary referrals. The
wishes to do so may include a statement § 354.1, shall also govern the mandatory
Copyright Royalty Board may seek
explaining that vote in the referral referral of novel questions, except that
guidance from the Register of
package. the Register of Copyrights’ decision will
Copyrights with respect to a material (2) Referral denied. If none of the
question of substantive law, concerning be timely if it is delivered to the
Copyright Royalty Judges agrees with Copyright Royalty Board within 30 days
an interpretation or construction of the request, the Board will issue an
those provisions of the Copyright Act, after the Register of Copyrights has
order denying the request which will received all of the briefs or comments of
that arises in the course of their provide the basis for the decision. A
proceedings. the participants. The Copyright Royalty
copy of any order denying a Motion Board will not issue a final
(b) How presented. One or more of the Requesting Referral of Material Question
Copyright Royalty Judges may refer determination in a proceeding where
of Substantive Law will be transmitted the referral of a novel question to the
what he or she believes to be a material to the Register of Copyrights.
question of substantive law to the Register of Copyrights under this part is
(f) No effect on proceedings. The pending, unless this 30-day period has
Register of Copyrights at any time issuance of a request to the Register of
during a proceeding. expired.
Copyrights for an interpretive ruling
(c) Motion; content. Any participant under this part does not delay or § 354.3 Register of Copyrights’ authority
may submit a motion to the Copyright otherwise affect the schedule of the to redesignate referrals.
Royalty Board (but not to the Register of participants’ obligations in the relevant If, during the 14-day period of a
Copyrights) requesting their referral to ongoing proceeding, unless that discretionary referral of a material
the Register of Copyrights a question schedule or those obligations are question of law under § 354.1, the
that the participant believes would be expressly changed by order of the Register of Copyrights determines that
suitable for referral under paragraph (a) Board. the question is a ‘‘novel’’ one within the
of this section. The motion should be (g) Binding effect; time limit. The meaning of § 354.2(a), the Register may
captioned ‘‘Motion of [Participant(s)] Copyright Royalty Board will not issue notify the Copyright Royalty Board of
Requesting Referral of Material Question a final determination in a proceeding that determination. The Copyright
of Substantive Law.’’ The motion should where the referral of a question to the Royalty Board will be bound by such a
set forth, at the outset, the precise legal Register of Copyrights under this part is determination by the Register of
question for which the moving party is pending, unless the Register has not Copyrights and will regard the Register’s
seeking interlocutory referral to the delivered the decision to the Copyright decision as timely delivered if it is
Register of Copyrights. The motion Royalty Board within 14 days after the received within the 30-day period
should then proceed to explain, with Register receives all of the briefs of the applicable to novel question referrals.
brevity, why the issue meets the criteria participants. If the decision of the
for potential referral under paragraph (a) Register of Copyrights is timely § 354.4 Consultation regarding acts
of this section and why the interests of delivered to the Copyright Royalty required by the Register of Copyrights.
fair and efficient adjudication would be Board, the decision will be included in The Copyright Royalty Board shall
best served by obtaining interlocutory the record of the proceeding. The legal consult with the Register of Copyrights
guidance from the Register of interpretation embodied in the timely with respect to any determination or
Copyrights. The motion should not delivered response of the Register of ruling that would require that any act be
include argument on the merits of the Copyrights in resolving material performed by the Copyright Office, and
issue, but may include a suggested questions of substantive law is binding any such determination or ruling shall
schedule of briefing that would make upon the Copyright Royalty Board and not be binding upon the Register of
reasonable provision for comments and will be applied by them in their final Copyrights.
legal arguments, in such a way as to determination in the relevant
avoid delay and duplication. § 354.5 Jurisdiction of the Copyright
proceeding.
(d) Time of motion. A motion for Royalty Board unaffected.
referral of a material question of § 354.2 Novel questions. Nothing in this part is intended to
substantive law to the Register of (a) Mandatory referrals. If the material impair the jurisdiction of the Copyright
Copyrights should be filed as soon as question of substantive law described in Royalty Board or to interfere with the
possible in the relevant proceeding. § 354.1(a) is a novel question of law, conduct of its proceedings. Referrals to
However, such a motion may be referral to the Register of Copyrights by the Register of Copyrights under this
submitted to the Copyright Royalty the Copyright Royalty Board is part shall not include questions of
Board at any time before a final mandatory. A ‘‘novel question of law’’ is procedure before the Copyright Royalty
determination is issued. a question of law that has not been Board, the ultimate adjustments and
(e) Action on motion. (1) Referral determined in the prior decisions, determinations of copyright royalty
granted. Upon consideration of a determinations, or rulings under the rates and terms, the ultimate
Motion Requesting Referral of Material Copyright Act of the Copyright Royalty distribution of copyright royalties, or
Question of Substantive Law, if one or Board, the Librarian of Congress, the the acceptance or rejection of royalty
more of the Copyright Royalty Judges Register of Copyrights, the Copyright claims, rate adjustment petitions, or
agrees with the request, the Chief Judge Arbitration Royalty Panels (to the extent petitions to participate.

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PART 360—FILING OF CLAIMS TO (i) On the Copyright Royalty Board required to obtain from its members or
ROYALTY FEES COLLECTED UNDER Web site at http://www.loc.gov/crb/ affiliates separate authorizations, apart
COMPULSORY LICENSE claims/ for claims filed with the from their standard membership affiliate
Copyright Royalty Board by mail or by agreements, or to list the name of each
Subpart A—Cable Claims hand delivery in accordance with of its members or affiliates in the joint
§ 360.4(a)(2)–(4); claim as required by paragraph (b)(2)(i)
Sec.
(ii) On the Copyright Royalty Board of this section.
360.1 General.
360.2 Time of filing. Web site at http://www.loc.gov/crb/ (iii) A general statement of the nature
360.3 Form and content of claims. cable/ during the month of July for of the copyright owners’ works and
360.4 Compliance with statutory dates. claims filed online in accordance with identification of at least one secondary
360.5 Copies of claims. § 360.4(a)(1); and transmission of one of the copyright
(iii) Upon request to the Copyright owners’ works by a cable system
Subpart B—Satellite Claims
Royalty Board, Library of Congress, P.O. establishing a basis for the joint claim
360.10 General. Box 70977, Southwest Station, and the identification of the copyright
360.11 Time of filing. Washington, DC 20024–0977. owner of each work so identified.
360.12 Form and content of claims. (b) Content. (1) Single claim. A claim (iv) The name, telephone number,
360.13 Compliance with statutory dates.
360.14 Copies of claims.
filed on behalf of a single copyright facsimile number, if any, full address,
360.15 Separate claims required. owner of a work or works secondarily including a specific number and street
transmitted by a cable system shall name or rural route, and e-mail address,
Subpart C—Digital audio recording devices include the following information: if any, of the person or entity filing the
and media royalty claims (i) The full legal name and address of joint claim. An e-mail address must be
360.20 General the copyright owner entitled to claim provided on claims submitted online
360.21 Time of filing. the royalty fees. through the Copyright Royalty Board
360.22 Form and content of claims. (ii) A general statement of the nature Web site.
360.23 Content of notices regarding of the copyright owner’s work or works,
independent administrators.
(v) The name, telephone number,
and identification of at least one facsimile number, if any, and e-mail
360.24 Compliance with statutory dates.
360.25 Copies of claims. secondary transmission by a cable address, if any, of the person whom the
system of such work or works Copyright Royalty Board can contact
Authority: 17 U.S.C. 801, 803, 805. establishing a basis for the claim. regarding the claim.
Subpart A also issued under 17 U.S.C. (iii) The name, telephone number, (vi) Original signatures of the
111(d)(4). facsimile number, if any, full address, copyright owners to the joint claim or of
Subpart B also issued under 17 U.S.C. including a specific number and street
119(b)(4).
a duly authorized representative or
Subpart C also issued under 17 U.S.C.
name or rural route, and e-mail address, representatives of the copyright owners,
1007(a)(1). if any, of the person or entity filing the except for claims filed online through
single claim. An e-mail address must be the Copyright Royalty Board Web site.
Subpart A—Cable Claims provided on claims submitted online See 37 CFR 360.3(b)(2)(vii).
through the Copyright Royalty Board (vii) Notwithstanding paragraph
§ 360.1 General. Web site. (b)(2)(ii) of this section, a declaration of
This subpart prescribes procedures (iv) The name, telephone number, the authority to file the claim and of the
under 17 U.S.C. 111(d)(4)(A) whereby facsimile number, if any, and e-mail veracity of the information contained in
parties claiming to be entitled to cable address, if any, of the person whom the the claim and the good faith of the
compulsory license royalty fees shall Copyright Royalty Board can contact person signing in providing such
file claims with the Copyright Royalty regarding the claim. information. Penalties for fraud and
Board. (v) An original signature of the false statements are provided under 18
copyright owner or of a duly authorized U.S.C. 1001 et seq.
§ 360.2 Time of filing. representative of the copyright owner, (c) In the event that the legal name
During the month of July each year, except for claims filed online through and/or address of the copyright owner
any party claiming to be entitled to the Copyright Royalty Board Web site. entitled to royalties or the person or
cable compulsory license royalty fees See 37 CFR 360.3(b)(1)(vi). entity filing the claim changes after the
for secondary transmissions of one or (vi) A declaration of the authority to filing of the claim, the Copyright
more of its works during the preceding file the claim and of the veracity of the Royalty Board shall be notified of the
calendar year shall file a claim to such information contained in the claim and change. If the good faith efforts of the
fees with the Copyright Royalty Board. the good faith of the person signing in Copyright Royalty Board to contact the
No royalty fees shall be distributed to a providing such information. Penalties copyright owner or person or entity
party for secondary transmissions for fraud and false statements are filing the claim are frustrated because of
during the specified period unless such provided under 18 U.S.C. 1001 et seq. failure to notify the Copyright Royalty
party has timely filed a claim to such (2) Joint claim. A claim filed on behalf Board of a name and/or address change,
fees. Claimants may file claims jointly of more than one copyright owner the claim may be subject to dismissal.
or as a single claim. whose works have been secondarily
transmitted by a cable system shall § 360.4 Compliance with statutory dates.
§ 360.3 Form and content of claims. include the following information: (a) Claims filed with the Copyright
(a) Forms. (1) Each claim to cable (i) A list including the full legal name Royalty Board shall be considered
compulsory license royalty fees shall be and address of each copyright owner to timely filed only if:
furnished on a form prescribed by the the joint claim entitled to claim royalty (1) They are received online in the
Copyright Royalty Board and shall fees. Board’s server no later than 5 p.m.
contain the information required by that (ii) A concise statement of the E.D.T. on July 31. Online claims must be
form and its accompanying instructions. authorization for the person or entity filed through the Copyright Royalty
(2) Copies of cable claim forms are filing the joint claim. For this purpose, Board Web site at http://www.loc.gov/
available: a performing rights society shall not be crb/cable/ during the month of July.

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(2) They are hand delivered by a day within the District of Columbia or § 360.12 Form and content of claims.
private party no later than 5 p.m. E.D.T. the Federal Government, claims (a) Forms. (1) Each claim to
on July 31. Claims hand delivered by a received by the Copyright Royalty Board compulsory license royalty fees for
private party must be delivered to the by the first business day in August, or secondary transmissions by satellite
Public Information Office, located at the properly addressed and deposited with carriers of television broadcast signals to
U.S. Copyright Office, James Madison sufficient postage with the United States the public shall be furnished on a form
Memorial Building, Room LM–401, 101 Postal Service and postmarked by the prescribed by the Copyright Royalty
Independence Avenue, SE., first business day in August, shall be Board and shall contain the information
Washington, DC 20559–6000, Monday considered timely filed. required by that form and its
through Friday, between 8:30 a.m. and (d) No claim may be filed by facsimile accompanying instructions.
5 p.m., and the envelope must be transmission. (2) Copies of satellite claim forms are
addressed as follows: Copyright Royalty (e) In the event that a properly available:
Board, Library of Congress, James (i) On the Board’s Web site at
addressed and mailed claim is not
Madison Memorial Building, LM–401, http://www.loc.gov/crb/claims/ for
timely received by the Copyright
101 Independence Avenue, SE., claims filed with the Copyright Royalty
Royalty Board, proper filing of the claim
Washington, DC 20559–6000. Claims Board by mail or by hand delivery in
may nonetheless be proven if it was sent
hand delivered by a private party must accordance with § 360.13(a)(2)–(4);
by certified mail return receipt
be filed at the Public Information Office (ii) On the Board’s Web site at
requested, and a receipt bearing a July
during the month of July. http://www.loc.gov/crb/satellite/ during
(3) They are hand delivered by a date stamp of the United States Postal
the month of July for claims filed online
commercial courier (excluding Service, except where paragraph (c) of
in accordance with § 360.13(a)(1); and
overnight delivery services such as this section applies, can be provided. (iii) Upon request to the Copyright
Federal Express, United Parcel Service No other offer of proof will be accepted Royalty Board, Library of Congress, P.O.
and similar overnight delivery services) in lieu of the receipt. Box 70977, Southwest Station,
no later than 4 p.m. E.D.T. on July 31. (f) The Copyright Royalty Board will Washington, DC 20024–0977.
Claims hand delivered by a commercial accept either the confirmation page (b) Content. (1) Single claim. A claim
courier service (excluding overnight generated upon submission of the claim filed on behalf of a single copyright
delivery services such as Federal online through the Board’s Web site or owner of a work or works secondarily
Express, United Parcel Service and the electronic mail message from the transmitted by a satellite carrier shall
similar overnight delivery services) Board confirming receipt of the claim as include the following information:
must be delivered to the Congressional proof that a claim submitted online (i) The full legal name and address of
Courier Acceptance Site (CCAS) located through the Board’s Web site was the copyright owner entitled to claim
at Second and D Street, N.E., received timely in the Board’s server. the royalty fees.
Washington, DC, Monday through No other offer of proof will be accepted (ii) A general statement of the nature
Friday, between 8:30 a.m. and 4 p.m., in lieu thereof. of the copyright owner’s work or works,
and the envelope must be addressed as and identification of at least one
§ 360.5 Copies of claims.
follows: Copyright Royalty Board, secondary transmission by a satellite
Library of Congress, James Madison A claimant shall, for each claim carrier of such work or works
Memorial Building, LM–403, 101 submitted to the Copyright Royalty establishing a basis for the claim.
Independence Avenue, SE., Board by hand delivery or by mail, file (iii) The name, telephone number,
Washington, DC 20559–6000. Claims an original and one copy of the claim to facsimile number, if any, full address,
hand delivered by a commercial courier cable royalty fees. including a specific number and street
must be filed at CCAS during the month name or rural route, and e-mail address,
of July. Subpart B—Satellite Claims if any, of the person or entity filing the
(4) They are mailed through the § 360.10 General.
single claim. An e-mail address must be
United States Postal Service (USPS) provided on claims submitted online
having sufficient postage and bearing a This subpart prescribes the through the Copyright Royalty Board
July USPS postmark. Claims mailed procedures under 17 U.S.C. 119(b)(4) Web site.
through USPS must be addressed as whereby parties claiming to be entitled (iv) The name, telephone number,
follows: Copyright Royalty Board, P.O. to compulsory license royalty fees for facsimile number, if any, and e-mail
Box 70977, Southwest Station, secondary transmissions by satellite address, if any, of the person whom the
Washington, DC 20024–0977. carriers of television broadcast signals to Copyright Royalty Board can contact
(5) Federal Express, United Parcel the public shall file claims with the regarding the claim.
Service and similar overnight delivery Copyright Royalty Board. (v) An original signature of the
services may not be used for the filing copyright owner or of a duly authorized
§ 360.11 Time of filing.
of claims. A claim sent by means of representative of the copyright owner,
overnight delivery shall be done via During the month of July each year, except for claims filed online through
United States Postal Service Express any party claiming to be entitled to the Copyright Royalty Board Web site.
Mail, and the claim shall be addressed compulsory license royalty fees for See 37 CFR 360.12(b)(1)(vi).
in accordance with paragraph (a)(4) of secondary transmissions by satellite (vi) A declaration of the authority to
this section. carriers during the previous calendar file the claim and of the veracity of the
(b) Claims dated only with a business year of television broadcast signals to information contained in the claim and
meter that are received after July 31 will the public shall file a claim to such fees the good faith of the person signing in
not be accepted as having been timely with the Copyright Royalty Board. No providing such information. Penalties
filed. royalty fees shall be distributed to any for fraud and false statements are
(c) Notwithstanding paragraphs (a) party during the specified period unless provided under 18 U.S.C. 1001 et seq.
and (b) of this section, in any year in such party has timely filed a claim to (2) Joint claim. A claim filed on behalf
which July 31 falls on a Saturday, such fees. Claimants may file claims of more than one copyright owner
Sunday, holiday, or other nonbusiness jointly or as a single claim. whose works have been secondarily

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transmitted by a satellite carrier shall § 360.13 Compliance with statutory dates. in accordance with paragraph (a)(4) of
include the following information: (a) Claims filed with the Copyright this section.
(i) A list including the full legal name Royalty Board shall be considered (b) Claims dated only with a business
and address of each copyright owner to timely filed only if: meter that are received after July 31 will
the joint claim entitled to claim royalty (1) They are received online in the not be accepted as having been timely
fees. Board’s server no later than 5 p.m. e.d.t. filed.
(ii) A concise statement of the on July 31. Online claims must be filed (c) Notwithstanding paragraphs (a)
authorization for the person or entity through the Copyright Royalty Board and (b) of this section, in any year in
filing the joint claim. For this purpose, Web site at http://www.loc.gov/crb/ which July 31 falls on a Saturday,
a performing rights society shall not be satellite/ during the month of July. Sunday, holiday, or other nonbusiness
required to obtain from its members or (2) They are hand delivered by a day within the District of Columbia or
affiliates separate authorizations, apart private party no later than 5 p.m. e.d.t. the Federal Government, claims
from their standard membership affiliate on July 31. Claims hand delivered by a received by the Copyright Royalty Board
agreements, or to list the name of each private party must be delivered to the by the first business day in August, or
of its members or affiliates in the joint Public Information Office, located at the properly addressed and deposited with
claim as required by paragraph (b)(2)(i) U.S. Copyright Office, James Madison sufficient postage with the United States
of this section. Memorial Building, Room LM–401, 101 Postal Service and postmarked by the
(iii) A general statement of the nature Independence Avenue, SE., first business day in August, shall be
of the copyright owners’ works, Washington, DC 20559–6000, Monday considered timely filed.
identification of at least one secondary through Friday, between 8:30 a.m. and (d) No claim may be filed by facsimile
transmission of one of the copyright 5 p.m., and the envelope must be transmission.
owners’ works by a satellite carrier addressed as follows: Copyright Royalty (e) In the event that a properly
establishing a basis for the joint claim, Board, Library of Congress, James addressed and mailed claim is not
and the identification of the copyright Madison Memorial Building, LM–401, timely received by the Copyright
owner of each work so identified. 101 Independence Avenue, SE., Royalty Board, proper filing of the claim
Washington, DC 20559–6000. Claims may nonetheless be proven if it was sent
(iv) The name, telephone number,
hand delivered by a private party must by certified mail return receipt
facsimile number, if any, full address,
be filed at the Public Information Office requested, and a receipt bearing a July
including a specific number and street
during the month of July. date stamp of the United States Postal
name or rural route, and e-mail address, (3) They are hand delivered by a
if any, of the person or entity filing the Service, except where paragraph (c) of
commercial courier (excluding
joint claim. An e-mail address must be this section applies, can be provided.
overnight delivery services such as
provided on claims submitted online No other offer of proof will be accepted
Federal Express, United Parcel Service
through the Copyright Royalty Board in lieu of the receipt.
and similar overnight delivery services)
Web site. (f) The Copyright Royalty Board will
no later than 4 p.m. e.d.t. on July 31.
(v) The name, telephone number, accept either the confirmation page
Claims hand delivered by a commercial
facsimile number, if any, and e-mail generated upon submission of the claim
courier service (excluding overnight
address, if any, of a person whom the online through the Board’s Web site or
delivery services such as Federal
Copyright Royalty Board can contact Express, United Parcel Service and the electronic mail message from the
regarding the claim. similar overnight delivery services) Board confirming receipt of the claim as
(vi) Original signatures of the must be delivered to the Congressional proof that a claim submitted online
copyright owners to the joint claim or of Courier Acceptance Site (CCAS) located through the Board’s Web site was
a duly authorized representative or at Second and D Street, NE., received timely in the Board’s server.
representatives of the copyright owners, Washington, DC, Monday through No other offer of proof will be accepted
except for claims filed online through Friday, between 8:30 a.m. and 4 p.m., in lieu thereof.
the Copyright Royalty Board Web site. and the envelope must be addressed as § 360.14 Copies of claims.
See 37 CFR 360.12(b)(2)(vii). follows: Copyright Royalty Board,
(vii) Notwithstanding paragraph A claimant shall, for each claim
Library of Congress, James Madison submitted to the Copyright Royalty
(b)(2)(ii) of this section, a declaration of Memorial Building, LM–403, 101
the authority to file the claim and of the Board by hand delivery or by mail, file
Independence Avenue, SE., an original and one copy of the claim to
veracity of the information contained in Washington, DC 20559–6000. Claims
the claim and the good faith of the satellite carrier royalty fees.
hand delivered by a commercial courier
person signing in providing such must be filed at CCAS during the month § 360.15 Separate claims required.
information. Penalties for fraud and of July. If a party intends to file claims for
false statements are provided under 18 (4) They are mailed through the both cable compulsory license and
U.S.C. 1001 et seq. United States Postal Service (USPS) satellite carrier compulsory license
(c) In the event that the legal name having sufficient postage and bearing a royalty fees during the same month of
and/or address of the copyright owner July USPS postmark. Claims mailed July, that party must file separate claims
entitled to royalties or the person or through USPS must be addressed as with the Copyright Royalty Board. Any
entity filing the claim changes after the follows: Copyright Royalty Board, P.O. single claim which purports to file for
filing of the claim, the Copyright Box 70977, Southwest Station, both cable and satellite carrier royalty
Royalty Board shall be notified of the Washington, DC 20024–0977. fees will be dismissed.
change. If the good faith efforts of the (5) Federal Express, United Parcel
Copyright Royalty Board to contact the Service and similar overnight delivery Subpart C—Digital Audio Recording
copyright owner or person or entity services may not be used for the filing Devices and Media Royalty Claims
filing the claim are frustrated because of of claims. A claim sent by means of
failure to notify the Copyright Royalty overnight delivery shall be done via § 360.20 General.
Board of a name and/or address change, United States Postal Service Express This subpart prescribes procedures
the claim may be subject to dismissal. Mail, and the claim shall be addressed pursuant to 17 U.S.C. 1007(a)(1),

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whereby interested copyright parties, as (2) Copies of DART claim forms are (7) A declaration of the authority to
defined in 17 U.S.C. 1001(7), claiming available: file the claim and of the veracity of the
to be entitled to royalty payments made (i) On the Board’s Web site at information contained in the claim and
for the importation and distribution in http://www.loc.gov/crb/claims for the good faith of the person signing in
the United States, or the manufacture claims filed with the Copyright Royalty providing such information. Penalties
and distribution in the United States, of Board by mail or by hand delivery in for fraud and false statements are
digital audio recording devices and accordance with § 360.24(a)(2)–(4); provided under 18 U.S.C. 1001 et seq.
media pursuant to 17 U.S.C. 1006, shall (ii) On the Board’s Web site at (c) Claims shall bear the original
file claims with the Copyright Royalty http://www.loc.gov/crb/dart/ during the signature of the claimant or of a duly
Board. months of January and February for authorized representative of the
claims filed online in accordance with claimant, except for claims filed online
§ 360.21 Time of filing. § 360.24(a)(1); and through the Copyright Royalty Board
(a) General. During January and (iii) Upon request to the Copyright Web site. See 37 CFR 360.22(b)(7).
February of each succeeding year, every Royalty Board, Library of Congress, P.O. (d) In the event that the legal name
interested copyright party claiming to be Box 70977, Southwest Station, and/or address of the claimant changes
entitled to digital audio recording Washington, DC 20024–0977. after the filing of the claim, the claimant
devices and media royalty payments (b) Content. Claims filed by interested
shall notify the Copyright Royalty Board
made for quarterly periods ending copyright parties for digital audio
of such change. If the good faith efforts
during the previous calendar year shall recording devices and media royalty
of the Copyright Royalty Board to
file a claim with the Copyright Royalty payments shall include the following
contact the claimant are frustrated
Board. Claimants may file claims jointly information:
because of failure to notify the
or as a single claim. (1) The full legal name and address of
Copyright Royalty Board of a name and/
(b) Consequences of an untimely the person or entity claiming royalty
or address change, the claim may be
filing. No royalty payments for the payments.
(2) The name, telephone number, subject to dismissal.
previous calendar year shall be
distributed to any interested copyright facsimile number, if any, full address, (e) If the claim is a joint claim, it shall
party who has not filed a claim to such including a specific number and street include a concise statement of the
royalty payments during January or name or rural route, and e-mail address, authorization for the filing of the joint
February of the following calendar year. if any, of the person or entity filing the claim in addition to the declaration
(c) Authorization. Any organization or claim. An e-mail address must be required under paragraph (b)(7) of this
association, acting as a common agent, provided on claims submitted online section and the name of each claimant
shall be required to obtain from its through the Copyright Royalty Board to the joint claim.
members or affiliates separate, specific, Web site. (f) If an interested copyright party
and written authorization, signed by (3) The name, telephone number, intends to file claims against more than
members, affiliates, or their facsimile number, if any, and e-mail one Subfund, each such claim must be
representatives, to file claims to the address, if any, of a person whom the filed separately with the Copyright
Musical Works Fund or the Sound Copyright Royalty Board can contact Royalty Board. Any claim that purports
Recordings Fund, apart from their regarding the claim. to file against more than one Subfund
standard agreements, for purposes of (4) A statement as to how the claimant will be rejected.
royalties filing and fee distribution. fits within the definition of interested
§ 360.23 Content of notices regarding
Such written authorization, however, copyright party specified in 17 U.S.C. independent administrators.
will not be required for claimants to the 1001(7).
(5) A statement as to whether the (a) The independent administrator
Musical Works Fund where either:
claim is being made against the Sound jointly appointed by the interested
(1) The agreement between the
Recordings Fund or the Musical Works copyright parties, as defined in 17
organization or association and its
Fund, as set forth in 17 U.S.C. 1006(b), U.S.C. 1001(7)(A), and the American
members or affiliates specifically
and as to which Subfund of the Sound Federation of Musicians (or any
authorizes such entity to represent its
Recordings Fund (i.e., the copyright successor entity) for the purpose of
members or affiliates before the
owners or featured recording artists managing, and ultimately distributing
Copyright Royalty Board in royalty
Subfund) or the Musical Works Fund the royalty payments to nonfeatured
filing and fee distribution proceedings;
(i.e., the music publishers or writers musicians as defined in 17 U.S.C.
or
(2) The agreement between the Subfund) the claim is being made 1006(b)(1), shall file a notice informing
organization or association and its against as set forth in 17 U.S.C. the Copyright Royalty Board of his/her
members or affiliates, as specified in a 1006(b)(1) through (2). name and address.
court order issued by a court with (6) Identification, establishing a basis (b) The independent administrator
authority to interpret the terms of the for the claim, of at least one musical jointly appointed by the interested
contract, authorizes such entity to work or sound recording embodied in a copyright parties, as defined in 17
represent its members or affiliates before digital musical recording or an analog U.S.C. 1001(7)(A), and the American
the Copyright Royalty Board in royalty musical recording lawfully made under Federation of Television and Radio
filing and fee distribution proceedings. title 17 of the United States Code that Artists (or any successor entity) for the
has been distributed (as that term is purpose of managing, and ultimately
§ 360.22 Form and content of claims. defined in 17 U.S.C. 1001(6)), and that, distributing the royalty payments to
(a) Forms. (1) Each claim to digital during the period to which the royalty nonfeatured vocalists as defined in 17
audio recording devices and media payments claimed pertain, has been (i) U.S.C. 1006(b)(1), shall file a notice
royalty payments (DART) shall be Distributed (as that term is defined in 17 informing the Copyright Royalty Board
furnished on a form prescribed by the U.S.C. 1001(6)) in the form of digital of his/her full name and address.
Copyright Royalty Board and shall musical recordings or analog musical (c) A notice filed under paragraph (a)
contain the information required by that recordings, or (ii) Disseminated to the or (b) of this section shall include the
form and its accompanying instructions. public in transmissions. following information:

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30916 Federal Register / Vol. 70, No. 103 / Tuesday, May 31, 2005 / Rules and Regulations

(1) The full name of the independent (3) They are hand delivered by a claims received by the Copyright
administrator; commercial courier (excluding Royalty Board by the first business day
(2) The telephone number and overnight delivery services such as in March, or properly addressed and
facsimile number, if any, full address, Federal Express, United Parcel Service deposited with sufficient postage with
including a specific number and street and similar overnight delivery services) the United States Postal Service and
name or rural route, of the place of no later than 4 p.m. E.S.T. on the last postmarked by the first business day in
business of the independent day of February. Claims hand delivered March, shall be considered timely filed.
administrator. by a commercial courier service (d) No claim may be filed by facsimile
(d) Notice shall bear the original (excluding overnight delivery services transmission.
signature of the independent such as Federal Express, United Parcel (e) In the event that a properly
administrator or a duly authorized Service and similar overnight delivery addressed and mailed claim is not
representative of the independent services) must be delivered to the timely received by the Copyright
administrator, and shall be filed with Congressional Courier Acceptance Site Royalty Board, proper filing of the claim
the Copyright Royalty Board no later (CCAS) located at Second and D Street, may nonetheless be proven if it was sent
than March 31 of each year, NE., Washington, DC, Monday through by certified mail return receipt
commencing with March 31, 2006. Friday, between 8:30 a.m. and 4 p.m., requested, and a receipt bearing a
and the envelope must be addressed as January or February date stamp of the
(e) No notice may be filed by facsimile
follows: Copyright Royalty Board, United States Postal Service, except
transmission.
Library of Congress, James Madison where paragraph (c) of this section
§ 360.24 Compliance with statutory dates. Memorial Building, LM–403, 101 applies, can be provided. No other offer
(a) Claims filed with the Copyright Independence Avenue, SE., of proof will be accepted in lieu of the
Royalty Board shall be considered Washington, DC 20559–6000. Claims receipt.
timely filed only if: hand delivered by a commercial courier (f) The Copyright Royalty Board will
must be filed at CCAS during the accept either the confirmation page
(1) They are received online in the months of January and February. generated upon submission of the claim
Board’s server no later than 5 p.m. (4) They are mailed through the online through the Copyright Royalty
E.S.T. on the last day of February. United States Postal Service (USPS) Board Web site or the electronic mail
Online claims must be filed through the having sufficient postage and bearing a message from the Copyright Royalty
Copyright Royalty Board Web site at January or February USPS postmark. Board confirming receipt of the claim as
http://www.loc.gov/crb/dart/ during the Claims mailed through USPS must be proof that a claim submitted online
months of January and February. addressed as follows: Copyright Royalty through the Copyright Royalty Board
(2) They are hand delivered by a Board, P.O. Box 70977, Southwest Web site was received timely in the
private party no later than 5 p.m. E.S.T. Station, Washington, DC 20024–0977. Board’s server. No other offer of proof
on the last day of February. Claims hand (5) Federal Express, United Parcel will be accepted in lieu thereof.
delivered by a private party must be Service and similar overnight delivery
delivered to the Public Information services may not be used for the filing § 360.25 Copies of claims.
Office, located at the U.S. Copyright of claims. A claim sent by means of A claimant shall, for each claim
Office, James Madison Memorial overnight delivery shall be done via submitted to the Copyright Royalty
Building, Room LM–401, 101 United States Postal Service Express Board by hand delivery or by mail, file
Independence Avenue, SE., Mail, and the claim shall be addressed an original and one copy of the claim to
Washington, DC 20559–6000, Monday in accordance with paragraph (a)(4) of digital audio recording devices and
through Friday, between 8:30 a.m. and this section. media royalty payments.
5 p.m., and the envelope must be (b) Claims dated only with a business Dated: May 19, 2005.
addressed as follows: Copyright Royalty meter that are received after the last day Bruce G. Forrest,
Board, Library of Congress, James in February will not be accepted as
Madison Memorial Building, LM–401, Interim Chief Copyright Royalty Judge,
having been timely filed. Copyright Royalty Board.
101 Independence Avenue, SE., (c) Notwithstanding paragraphs (a)
Washington, DC 20559–6000. Claims and (b) of this section, in any year in Approved by:
hand delivered by a private party must which the last day of February falls on James H. Billington,
be filed at the Public Information Office a Saturday, Sunday, a holiday, or other The Librarian of Congress.
during the months of January and nonbusiness day within the District of [FR Doc. 05–10553 Filed 5–27–05; 8:45 am]
February. Columbia or the Federal Government, BILLING CODE 1410–72–P

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