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Federal Register / Vol. 69, No.

189 / Thursday, September 30, 2004 / Rules and Regulations 58261

LIBRARY OF CONGRESS Congress to establish regulations to give The proxy that emerged as the one most
copyright owners reasonable notice of favored by the commenters was the data
Copyright Office the use of their works and create and already provided by the preexisting
maintain records of use for delivery to subscription services to
37 CFR Part 270 copyright owners. 17 U.S.C. 114(f)(4)(A) SoundExchange, Inc.2 under the
[Docket No. RM 2002–1G] and 17 U.S.C. 112(e)(4). The purpose of regulations announced in 1998 and now
this notice and recordkeeping codified at 37 CFR 270.2 for
Notice and Recordkeeping for Use of requirement is to ensure that the transmissions made under section
Sound Recordings Under Statutory royalties collected under the statutory 114(f).
License licenses are distributed to the correct The Office proposed to adopt
recipients. regulations specifying that the records
AGENCY: Copyright Office, Library of The Copyright Office announced of use submitted by the preexisting
Congress. interim regulations on March 11, 2004, subscription services during the period
ACTION: Final rule. specifying notice and recordkeeping between October 28, 1998, and March
requirements for use of sound 31, 2004, shall be considered the
SUMMARY: The Copyright Office of the recordings under the section 112 and records of use for all services operating
Library of Congress is announcing a 114 licenses. 1 See 69 FR under the section 112(e) and section 114
final regulation specifying notice and 11515 (March 11, 2004). However, those licenses and that no additional records
recordkeeping requirements governing interim regulations are prospective and need be filed by the nonsubscription
the reporting of certain uses of sound do not address the notice and services, the satellite digital radio audio
recordings performed by means of recordkeeping requirements for the services, business establishment
digital audio transmissions pursuant to period from October 28, 1998 (the date services or new types of subscription
statutory license for the period October the statutory licenses other than the services.
28, 1998, through March 31, 2004. license for preexisting subscription
EFFECTTIVE DATE: November 1, 2004. services first became available) through
March 31, 2004 (the ‘‘historic period’’). Three comments were submitted to
the Office in response to the notice of
David O. Carson, General Counsel, or Proposed Rulemaking proposed rulemaking. SoundExchange,
Gina Giuffreda, Attorney–Advisor, P.O.
Previously, the Office had published Inc., a nonprofit organization jointly
Box 70977, Southwest Station,
a notice of inquiry seeking comment on controlled by representatives of
Washington, DC 20024. Telephone:
what records of use are to be prescribed copyright owners and performers on
(202) 707–8380; Telefax: (202) 252–
for uses of sound recordings during the whose behalf it receives and disburses
historic period, a period during which section 114 statutory royalties,
SUPPLEMENTARY INFORMATION: many services had maintained few or, in expressed its support for the proposed
Background many instances, no records of such use. rule as ‘‘the best solution for a bad
68 FR 58054 (October 8, 2003). The situation’’–i.e., a situation in which
The Copyright Act grants copyright Office received a number of comments services using the statutory license had
owners of sound recordings the and, on July 13, 2004, the Office not been required to retain data on use
exclusive right to perform their works published a notice of proposed of sound recordings. The National
publicly by means of digital audio rulemaking proposing rules to address Association of Broadcasters, many of
transmissions subject to certain the historic period that were based upon whose members operate under the
limitations and exceptions. Among the the comments it had received in statutory license, also expressed its
limitations placed on the performance response to the notice of inquiry. 69 FR support for the proposed rule.
right for sound recordings are certain 42007 (July13, 2004). Because few, if RLI submitted a comment in which it
exemptions and a statutory license that any, records of prior use had been took no position on the use of data from
permits certain eligible subscription, maintained to date and those that do
nonsubscription, and satellite digital exist would be of little or no use in 2 SoundExchange has been designated as the

audio radio to perform those sound forming the basis for distribution of agent to receive royalty payments and statements of
account from the preexisting subscription services.
recordings publicly by means of digital royalties for the historic period, the 37 CFR 260.3(f). SoundExchange was also
audio transmissions. 17 U.S.C. 114. Office concluded that there was little designated as the ‘‘Receiving Agent’’ to receive
Similarly, copyright owners of sound likelihood of obtaining any useful and royalty payments from eligible nonsubscription
recordings are granted the exclusive transmission services for the period from October
meaningful data by requiring services to 28, 1998, through December 31, 2002.
right to make copies of their works report information from the historic SoundExchange and Royalty Logic, Inc. (‘‘RLI’’)
subject to certain limitations and period. Instead of requiring such were designated for the same period as ‘‘designated
exceptions. Among the limitations retroactive reports, the Office followed agents’’ to distribute those royalty payments to
copyright owners and performers. However, the
placed on the reproduction right for the suggestion of several commenters regulations governing that time period provided
sound recordings is a statutory license and proposed to adopt rules providing that with respect to any royalty payment, RLI could
that permits certain eligible that a proxy be used in lieu of reporting act as designated agent only for copyright owners
subscription, nonsubscription, satellite and performers who notified SoundExchange that
requirements for the historic period. they had elected to use RLI at least 30 days prior
digital audio, and business to SoundExchange’s receipt of the royalty payment.
establishment services to make 1 Those regulations did not apply to preexisting 37 CFR 261.4(b), (c). Our July 13 notice of proposed
ephemeral copies of those sound subscription services, which are defined in section rulemaking stated that it was the Office’s
114 as services that perform sound recordings by understanding that no copyright owners or
recordings to facilitate their digital means of noninteractive audio–only subscription performers had elected RLI as their designated
transmission. 17 U.S.C. 112(e). digital audio transmissions which were in existence agent in accordance with §261.4(c), and that if that
Both the section 114 and 112 licenses and were making such transmissions to the public was the case, the proposed regulation would not
require services to, among other things, for a fee on or before July 31, 1998. 17 U.S.C. need to require SoundExchange to provide to RLI
114(j)(11). Requirements for preexisting any data from the preexisting subscription services.
report to copyright owners of sound subscription services were announced in 1998, see For the period after December 31, 2002,
recordings on the use of their works. 64 FR 34289 (June 24, 1998), and will not be SoundExchange has been the sole designated agent.
Both licenses direct the Librarian of affected by the rules adopted today. 37 CFR 262.4(b).

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58262 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Rules and Regulations

the preexisting subscription services as now in the possession of in paragraph (b) of this section for that
a proxy. However, RLI asserted that SoundExchange, which necessarily will period or the applicable portion thereof.
contrary to the Office’s understanding, a have retained those reports to assist in Dated: September 21, 2004
number of copyright owners and distribution of royalties. Marybeth Peters,
performers had designated RLI as their
List of Subjects in 37 CFR Part 270 Register of Copyrights.
designated agent to distribute statutory
Copyright, Sound recordings. Approved by:
royalties. RLI therefore urged that the
records of use submitted by the James H. Billington,
Final Regulation The Librarian of Congress.
preexisting subscription services to
SoundExchange be provided to RLI as ■ In consideration of the foregoing, the [FR Doc. 04–22002 Filed 9–29–04; 8:45 am]
well so that RLI could use those records Copyright Office amends part 270 of 37 BILLING CODE 1410–33–S
in its distribution of royalties to CFR to read as follows:
copyright owners and performers who ■ 1. The authority citation for part 270
have designated it as their designated continues to read as follows: ENVIRONMENTAL PROTECTION
agent. RLI further requested that the Authority: 17 U.S.C. 702. AGENCY
regulations provide that RLI receive
such records directly from the PART 270—NOTICE AND 40 CFR Part 52
preexisting subscription services rather RECORDKEEPING REQUIREMENTS [AZ 134–082; FRL–7820–1]
than from SoundExchange. FOR STATUTORY LICENSES
The Final Rule Interim Final Determination To Stay
■ 2. Part 270 is amended as follows: and/or Defer Sanctions, Maricopa
In light of the support in the ■ a. By redesignating § 270.4 as § 270.5; County Environmental Services
comments for adoption of the reports and Department
already submitted by the preexisting ■ b. By adding a new § 270.4 to read as
subscription services as a proxy for follows: AGENCY: Environmental Protection
reports from nonsubscription services, Agency (EPA).
the satellite digital radio audio services, § 270.4 Reports of use of sound ACTION: Interim final rule.
recordings under statutory license prior to
business establishment services or new
April 1, 2004. SUMMARY: EPA is making an interim
types of subscription services, the Office
has decided to adopt the proposed rule (a) General. This section prescribes final determination to stay and/or defer
as a final rule. the rules which govern reports of use of imposition of sanctions based on a
However, RLI’s assertion that it is sound recordings by nonsubscription proposed approval of revisions to the
entitled to receive the preexisting transmission services, preexisting Maricopa County Environmental
subscription services’ reports requires a satellite digital audio radio services, Services Department (MCESD) portion
modification of the proposed rule. new subscription services, and business of the Arizona State Implementation
Whether RLI has or has not properly establishment services under section Plan (SIP) published elsewhere in
been designated by any copyright 112(e) or section 114(d)(2) of title 17 of today’s Federal Register. The revisions
owners or performers is not an issue the United States Code, or both, for the concern MCESD Rule 331.
that can be resolved in this rulemaking period from October 28, 1998, through DATES: This interim final determination
proceeding; nor is there any need to March 31, 2004. is effective on September 30, 2004.
resolve that issue. It will suffice to (b) Reports of use. Reports of use filed However, comments will be accepted
provide in the regulation that if RLI has by preexisting subscription services for until November 1, 2004.
been properly designated by any transmissions made under 17 U.S.C. ADDRESSES: Send comments to Andy
copyright owners or performers,3 114(f) pursuant to §270.2 for use of Steckel, Rulemaking Office Chief (AIR–
SoundExchange must provide copies of sound recordings under section 112(e) 4), U.S. Environmental Protection
the preexisting subscription services’ or section 114(d)(2) of title 17 of the Agency, Region IX, 75 Hawthorne
reports to that designated agent. The United States Code, or both, for the Street, San Francisco, CA 94105 or e-
Office rejects as impractical RLI’s period October 28, 1998, through March mail to, or
request that the preexisting subscription 31, 2004, shall serve as the reports of submit comments at http://
services be required to send those use for nonsubscription transmission
reports directly to RLI. The reports in services, preexisting satellite digital You can inspect copies of the
question, which cover the period from audio radio services, new subscription submitted rule revisions, EPA’s
October 28, 1998, through March 31, services, and business establishment technical support document (TSD), and
2004, have already been submitted to services for their use of sound public comments at our Region IX office
SoundExchange (or its predecessor, the recordings under section 112(e) or during normal business hours by
Recording Industry Association of section 114(d)(2) of title 17 of the appointment. You may also see copies
America) over a period of several years United States Code, or both, for the of the submitted rule revisions by
under the existing notice and period from October 28, 1998, through appointment at the following locations:
recordkeeping regulations for March 31, 2004. Rulemaking Office (AIR–4), Air Division,
preexisting subscription services. It (c) Royalty Logic Inc. If, in accordance U.S. Environmental Protection Agency,
would be an unfair burden on the with §261.4(c), any Copyright Owners Region IX, 75 Hawthorne Street, San
preexisting subscription services to or Performers have provided timely Francisco, CA 94105.
notice to SoundExchange of an election Air and Radiation Docket and Information
require them now to serve additional
to receive royalties from Royalty Logic, Center, U.S. Environmental Protection
copies of those reports (copies of which Agency, Room B–102, 1301 Constitution
they have not necessarily retained) on Inc. as a Designated Agent for the period
Avenue, NW., (Mail Code 6102T),
RLI, especially when all the reports are October 28, 1998, through December 31, Washington, DC 20460.
2002, or any portion thereof, Arizona Department of Environmental
3 And RLI is the only other entity eligible to be SoundExchange shall provide to RLI Quality, 1110 W. Washington Street,
so designated. copies of the Reports of Use described Phoenix, AZ 85007.

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