Notice of Roundtable  (May 30, 2007)

Congressional Action

Preliminary Participant list

Background

Section 115 of the Copyright Act, title 17 of the United States Code provides a statutory license for the making and distribution of phonorecords of nondramatic musical works, which includes the right to distribute a phonorecord by means of a ‘‘digital phonorecord delivery’’ (‘‘DPD’’). The statute includes a definition of a DPD, and acknowledges the existence of additional DPDs ‘‘where the reproduction or distribution of the phonorecord is incidental to the transmission which constitutes the [DPD]’’ 17 U.S.C. 115(c)(3)(D). However, the law does not identify which DPDs can be classified as incidental or provide guidelines for making this decision.

In addition to issues regarding the scope of the 115 license, the Office continues to explore ways in which the service of Notice of Intention to Obtain Compulsory License under section 115 may be further streamlined.

To this end, the Copyright Office has scheduled a roundtable discussion to reconsider regulatory options for facilitating the use of the section 115 license. 72 FR 30039 (May 30, 2007). The notice announcing the roundtable identifies a number of key issues for discussion concerning the scope of the license and the notice requirement for use of the license. Participation of persons who can address the issues from the perspectives of law, policy and the practical needs of the affected industries have been encouraged as has participation of persons who can speak to the technological aspects involved in the making of a digital transmission, especially with respect to the making of specific reproductions during the course of a transmission.

Scope of the Section 115 License

The Copyright Office initiated a rulemaking in 2001 in response to a petition from the Recording Industry Association of America (‘‘RIAA’’) to consider which reproductions could be covered by the statutory license. 66 FR 14099 (March 9, 2001). In requesting this proceeding on the interpretation and application of the section 115 license to certain digital music services, RIAA had suggested in its petition that section 115 be interpreted in such a way as to cover all reproductions made to operate services offering On–Demand Streams and Limited Downloads, as RIAA had defined these terms. As the Office considered the comments filed in response to the March 2001 Notice, key industry participants reached a private agreement on a number of the major issues identified in the original Notice of Inquiry. In light of this development, the Copyright Office sought additional comments on the original questions. 66 FR 64783 (December 14, 2001). Further action in this rulemaking, however, was set aside to focus efforts on possible legislative solutions to licensing music in a digital environment.

Notice

On August 28, 2001, the Copyright Office issued a Notice of Proposed Rulemaking to amend the rules associated with service of a Notice of Intention to Obtain Compulsory License (‘‘Notice’’) under section 115. 66 FR 45241 (August 28, 2001). The purpose of the amendments was to streamline the notification process by making it easier and more efficient to effect service on the copyright owner. After considering the comments received in that rulemaking proceeding, the Office adopted regulations to allow a licensee to list multiple work on a single notice and to effect service on an agent of the copyright owner. 69 FR 11566 (March 11, 2004). However, the 115 license remains largely unused by most parties who expressed an interest in employing it. As such, the Office now seeks to address whether there are compelling reasons to further streamline the Notice process and, if so, in what ways this can be done.

Congressional Action

Amidst this regulatory inquiry, Congress devoted significant attention to reform of section 115. Between 2004 and 2006, Congress held four hearings concerning music licensing at which the Register testified and introduced a bill during that last year. Yet, in spite of all the attention, the legal issues remain unresolved. Consequently, the Office has again focused on the rulemaking process and seeks refresh the existing record in order to ascertain the scope of the 115 license in relation to certain digital music services.

Preliminary List of Participants

ABKCO Music and Records
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers Authors and Publishers (ASCAP)
Apple Inc.
Broadcast Music Inc. (BMI)
Cursory Rhymes
Digital Media Association (DiMA)
Microsoft
MusicNet
Music Reports Inc.
Muzak
Nashville Songwriters Association (NSAI)
National Association of Recording Merchandisers (NARM)
National Music Publishers Association (NMPA) / Harry Fox Agency (HFA)
Public Knowledge
RealNetworks
Recording Artists Coalition (RAC)
Recording Industry Association of America (RIAA)
Royalty Share
SESAC
Songwriter’s Guild of America (SGA)
TouchTunes
Yahoo