Copyright News

COPYRIGHT ROYALTY BOARD HOLDS TRIAL ON 2000-2003 CABLE ROYALTY DISTRIBUTIONS

June 11, 2009: The Copyright Royalty Board (CRB) will commence a trial to determine the Phase I distribution of royalties collected in 2000, 2001, 2002, and 2003 under the cable statutory license (Docket No. 2008-2 CRB CD 2000-2003). The direct phase of the case will occur June 11-17, 2009, in Room LM-407 of the Library of Congress James Madison Memorial Building, 101 Independence Avenue, S.E., Washington, D.C.

In order to retransmit over-the-air television and radio broadcast signals, cable systems must submit semiannual royalty payments to the Copyright Office under the cable statutory license. Copyright owners whose works were retransmitted and who file timely claims for the royalties receive a distributed share of these royalties. The distribution is a two-phase process: Phase I divides royalties among representatives of the major content categories (Program Suppliers, Joint Sports Claimants, Commercial Television Claimants, Public Television Claimants, Music Claimants, Canadian Claimants and Devotional Claimants), and Phase II divides royalties among copyright owners within each content category.

The parties testifying in this Phase I proceeding include the Settling Parties (Program Suppliers, Joint Sports Claimants, Commercial Television Claimants, Public Television Claimants, Music Claimants, and Devotional Claimants) and the Canadian Claimants Group. The Copyright Royalty Judges’ sole issue at trial is to determine the Canadian Claimants Group’s share of the royalties. The Judges will attempt to determine that share by either limiting it to no greater than the average share awarded in the last litigated Phase I distribution proceeding for 1998-99 cable royalties, or applying the CRB’s methodology used in the 1998-99 proceeding to the 2000-2003 data.

The schedule for the proceeding is:

After the direct phase is completed, the trial will break for the parties to prepare rebuttal cases. The date for filing rebuttal cases has not been set. Updates to the trial schedule will appear at http://www.loc.gov/crb. Contact the Copyright Royalty Board with questions regarding schedule changes at 202-707-7658.  

COPYRIGHT OFFICE FEE CHANGE AUGUST 1, 2009

May 27, 2009: Effective August 1, 2009, some Copyright Office fees will change if Congress does not reject them. Registration and Licensing Division services are among the fees affected. For a complete fee schedule, see http://www.copyright.gov/docs/fees.html. For more information on current fees, contact the Copyright Office at 202-707-3000, or review Circular 4: Copyright Office Fees (http://www.copyright.gov/circs/circ04.pdf).

COPYRIGHT OFFICE RESPONDS TO WASHINGTON POST ARTICLE ON PROCESSING TIME

May 29, 2009: In response to a recent Washington Post article criticizing the Copyright Office’s registration processing time as it transitions from a paper-based to an electronic system, the Copyright Office stated that it is working diligently to improve processing times and general public service. The current processing times for each filing method are:

• E-Service / Electronic Deposit: 90% completed in 5 months; 33% completed in 2.5 months.
• E-Service / Physical Deposit: 90% completed in 6.5 months; 33% completed in 3 months.
• Paper: 90% completed in 18 months; 33% completed in 12 months. The Copyright Office recommends filing claims online with eCO. For more information, see http://www.copyright.gov/eco/index.html. To read the Washington Post article, see: http://www.washingtonpost.com/wp-dyn/content/article/2009/05/18/AR2009051803171.html.  

COPYRIGHT ROYALTY JUDGES ISSUE ORDER FOR PHASE I PROCEEDING ON CANADIANS’ SHARE OF 2000-2003 CABLE ROYALTIES

April 15, 2009: The Copyright Royalty Judges will conduct a Phase I proceeding June 8-11, 2009, to decide the Canadian Claimants Group’s portion of the 2000-2003 cable royalty funds. On February 9, 2009, the Judges granted participants’ motion stipulating that the singular issue in this proceeding is whether the Canadians’ share of the 2000-2003 cable royalties should be: (1) no more than their average share awarded in the last litigated Phase I distribution proceeding for the 1998-99 cable royalties; or (2) determined by applying the Copyright Arbitration Royalty Panel (CARP) methodology used in the 1998-99 proceeding to the 2000-2003 data. The participants informed the Judges on April 9, 2009, that they were unable to agree on a resolution, making it necessary for the Copyright Royalty Judges to determine the issue. Hearings will take place in Room LM-407 of the James Madison Memorial Building in Washington, DC. Participants must provide written notice to the Judges by May 12, 2009, of the proposed order of witnesses.

COPYRIGHT ROYALTY JUDGES SEEK COMMENT ON COSTS OF REPORTING USE OF SECTIONS 112 AND 114 SOUND RECORDINGS

April 8, 2009: The Copyright Royalty Judges (CRJs) requested written comments on the costs of census versus sample reporting of Sections 112 and 114 sound recordings usage to assist with interim regulations revisions related to notices of use filings and records of use delivery for sound recordings under Sections 112 and 114 of the Copyright Act. On December 30, 2008, the CRJs published a notice of proposed rulemaking (NPRM) that suggested revisions and requested comments on technological developments affecting data reporting. They received 43 comments, many concerned with the undue burden created by census implementation, and now seek additional information on costs and benefits of census reporting and any alternate proposals that accomplish the same goals at a lower cost. The CRJs also seek information on the impact of census reporting on small entities and stations using manual playlists; SoundExchange’s current methodology for receiving reports; and possible criteria for exemption of certain classes from year-round reporting. Comments are due May 26, 2009; reply comments are due June 8, 2009. For more information, see http://www.loc.gov/crb/fedreg/2009/74fr15901.pdf.  

COPYRIGHT OFFICE AMENDS REGULATIONS ON TERMINATION NOTICE RECORDATION FOR TRANSFERS AND LICENSES

March 25, 2009: The Copyright Office adopted amendments to the regulation of termination notices. The Office proposed five amendments under Chapter 37 § 201 of the Code of Federal Regulations and sought public comment in a Notice of Proposed Rulemaking, published in the Federal Register on January 23, 2008. The Copyright Office received 2 comments on the second amendment regarding a recordation’s legal significance. The Copyright Office revised the second proposed amendment by addressing valid notice requirements and approved the other four amendments without change. The adopted amendments (1) explain the Office’s procedure for receipt of untimely termination notices; (2) declare that recordation of termination notices is not proof that documents are legally sufficient; (3) update legibility requirements for termination notices and all other recorded documents; (4) include explanatory edits in the fee schedule for single documents terminating granted rights in multiple works; and (5) provide a new mailing address at the Copyright Office to expedite processing. The amendments are effective as of March 25, 2009. For more information, see http://www.copyright.gov/fedreg/2009/74fr12544.pdf.

COPYRIGHT OFFICE ANNOUNCES PUBLIC HEARINGS ON EXEMPTIONS TO CIRCUMVENTION PROHIBITIONS ON COPYRIGHT PROTECTION SYSTEMS

March 9, 2009: The Copyright Office announced public hearings to determine how the prohibition against circumventing technical measures controlling access to copyrighted works (listed in section 102 of the Copyright Act, i.e., musical, literary works and motion pictures) will adversely affect noninfringing uses of such works. Among the 19 classes of works considered for exemption are motion picture and audiovisual works used in face-to-face educational instruction and digital television (DTV) programming intended for free, unrestricted reception, which is marked with a broadcast flag. Hearing testimony will relate to the proposed exemptions published in the December 29, 2008, Notice of Proposed Rulemaking (http://www.copyright.gov/fedreg/2008/73fr79425.pdf), and the responsive comments subsequently received (http://www.copyright.gov/1201). This triennial rulemaking proceeding complies with the Copyright Act, as amended by the Digital Millennium Copyright Act, and will be held on May 1, 2009, in Palo Alto, California, and May 6-8, 2009, in Washington, DC. Requests to testify should be submitted through the online request form, available at http://www.copyright.gov/1201, by 5:00 p.m. E.D.T. on April 3, 2009. For more information, see http://www.copyright.gov/fedreg/2009/74fr10096.pdf.  

COPYRIGHT OFFICE PUBLISHES WEBCASTERS’ AGREEMENTS SETTING RATES AND TERMS FOR REPRODUCTION AND PERFORMANCE OF SOUND RECORDINGS

March 3, 2009: The Copyright Office published notice in the Federal Register of three agreements that set the rates and terms for reproduction and performance of sound recordings made by eligible webcasters, in accordance with Section 114 of the Copyright Act, as amended by the Webcaster Settlement Act of 2008 (“WSA”). SoundExchange, which collects royalties from nonsubscription transmission services, negotiated the agreements for small commercial webcasters under Section 112 and 114 statutory licenses. The agreements are with the Corporation for Public Broadcasting, the National Association of Broadcasters, and a group of small webcasters. Eligible webcasters may choose to apply the statutory license rates and terms according to those agreements, instead of those set forth in determinations by the Copyright Royalty Judges. The Copyright Office does not administer these negotiated rates and terms. All questions regarding these agreements should be directed to SoundExchange (http://www.soundexchange.com). For more information, see http://www.copyright.gov/fedreg/2009/74fr9293.pdf.

COPYRIGHT ROYALTY JUDGES RECEIVE NOTICE OF INTENT TO AUDIT SIRIUS RADIO AND XM SATELLITE RADIO STATEMENTS OF ACCOUNT

February 25, 2009: The Copyright Royalty Judges received two notices of intent to audit Sirius Radio’s and XM Satellite Radio’s statements of account submitted for 2007 and 2008 in accordance with sections 112 and 114 of the Copyright Act. SoundExchange, Inc., who filed the notices on February 13, 2009, collects royalty payments and statements of account and distributes royalties to copyright owners and performers entitled to royalties under section 112 and 114. Under 37 CFR 382.15(b) and (c) SoundExchange may conduct a single audit of a licensee after it files a notice of intent with the Copyright Royalty Judges and serves the notice on the licensee, and after the Judges publish the notice in the Federal Register. For more information, see http://www.loc.gov/crb/fedreg/2009/74fr8585.pdf.

COPYRIGHT ROYALTY JUDGES MODIFY ROYALTY TERMS FOR SECTION 115 DELIVERY OF MECHANICAL AND DIGITAL PHONORECORDS

February 11, 2009: The Copyright Royalty Judges announced four modifications to the royalty terms adopted November 24, 2008, for mechanical and digital delivery of phonorecords under Section 115 of the Copyright Act (http://www.loc.gov/crb/fedreg/2009/74fr4510.pdf). These changes correspond with the Copyright Register’s identification of legal errors in the terms, published on January 26, 2009 at http://www.copyright.gov/fedreg/2009/74fr4537.pdf. The Register’s corrections are only binding in future proceedings, but the Judges may modify the terms of royalty payments in written determinations, under section 803(c)(4) of Title 17 of the United States Code. The modifications are: (1) to the section 385.11 definition of “interactive stream,” which altered the section 115 license statutory terms; (2) to the section 385.14(e) establishment of promotional royalty rates for free trial periods of interactive streaming or limited downloads, which was an impermissible retroactive rulemaking; (3) to the section 385.15 royalty payments timing provisions, which violated 17 U.S.C. 115(c)(5); and (4) to the portion of section 385.14(a)(4) regarding statements of account, which was contrary to the Register’s authority in this area. Chief Judge James Scott Sledge dissented, arguing amendment of the determination was invalid under 17 U.S.C. 802(f)(1)(D) because the modifications are not technical or clerical and do not involve unforeseen circumstances, as statutorily required. The modifications go into effect March 1, 2009. For more information, see http://www.loc.gov/crb/fedreg/2009/74fr6832.pdf.

COPYRIGHT REGISTER IDENTIFIES ERRORS IN PHONORECORD DELIVERY RATE PROCEEDING

January 16, 2009: The Register of Copyrights identified and corrected erroneous resolutions of material questions of substantive law under title 17 of the U.S. Code in her review of the Copyright Royalty Board’s (CRB) final determination on adjustment of rates and terms for making and distributing phonorecords and musical works, Docket No. 2006-3 CRB DPRA, available at http://www.loc.gov/crb/fedreg/2009/74fr4510.pdf. Under 17 U.S.C. 802(f)(1)(B), the CRB must request a written decision from the Register of Copyrights when a novel question of substantive law arises. The CRB did not request a decision as to whether interactive streaming constitutes a digital phonorecord delivery (DPD) under Section 115, and adopted a regulation overstating the scope of a Section 115 license. The CRB also failed to refer a question regarding the scope of licenses for digital music copies made to facilitate delivery. The CRB misinterpreted section 801(b)(7)(A)(ii) to preclude its evaluation of unlawful provisions, and incorrectly concluded that the final determination was not a resolution, and the Register’s review was not part of the procedure for settlement provision rates and terms. The CRB improperly defined DPD in reference to interactive streams, retroactive application of promotional royalty rates, payment timing, and the scope of statements of account. The Register’s corrections will be part of the proceeding record, and her conclusion of substantive law interpreting title 17 will be binding precedent in future CRB proceedings. For more information, see www.copyright.gov/crb-referrals/docs/Registers_review_of_CRB_determination_2006-3.pdf.

COPYRIGHT ROYALTY JUDGES ANNOUNCE SOUND RECORDING RATES PROCEEDING FOR NEW SUBSCRIPTION SERVICE TRANSMISSIONS

January 5, 2009: The Copyright Royalty Judges initiated a proceeding to establish rates and terms for the use of sound recordings in new subscription service transmissions and for the ephemeral recordings made in order to create such transmissions. Licenses apply from January 1, 2011 to December 31, 2015. To participate in the rate determination proceeding, a party must file a Petition to Participate with a $150 filing fee by February 4, 2009. For more information, see http://www.loc.gov/crb/fedreg/2009/74fr319.pdf.

COPYRIGHT ROYALTY JUDGES ANNOUNCE DIGITAL PERFORMANCE LICENSE PROCEEDING TO DETERMINE RATES AND TERMS FOR SOUND AND EPHEMERAL RECORDINGS

January 5, 2009: The Copyright Royalty Judges initiated a proceeding to set the rates and terms for the statutory licenses for digital performances of sound recordings and making ephemeral recordings. Licenses apply from January 1, 2011 to December 31, 2015. To participate in the rate determination, a party must file a Petition to Participate and $150 filing fee by February 4, 2009. For more information, see http://www.loc.gov/crb/fedreg/2009/74fr318.pdf.

COPYRIGHT ROYALTY BOARD PROPOSES FINAL REGULATIONS FOR FILING NOTICE OF USE AND DELIVERY OF RECORDS OF USE OF SOUND RECORDINGS

December 30, 2008: Copyright Royalty Judges proposed final regulations for filing notice of use and the delivery of records of use of sound recordings under Section 112 and 114 licenses of the Copyright Act. Section 112 enables a digital audio service to make copies of music necessary for transmittal, provided a royalty fee is paid. Section 114 allows a digital audio service to stream copyrighted music to its listeners. The judges’ final regulations propose to eliminate obsolete or duplicative provisions and definitions in the interim regulations, issued on October, 6, 2006 (http://www.loc.gov/crb/fedreg/2006/71fr59010.pdf).They also seek implementation of year-round census reporting and comments on technical developments that require adjusting the rules on report completion. Comments are due January 29, 2009. For more information, see http://www.loc.gov/crb/fedreg/2008/73fr79727.pdf .

COPYRIGHT OFFICE SEEKS COMMENT ON CIRCUMVENTION MEASURES CONTROLLING ACCESS TO WORKS & EXEMPTIONS

December 29, 2008: The Copyright Office received 19 comments proposing classes of works subject to exemption from the prohibition on circumvention of copyright protection systems controlling access to copyrighted works. Comments were submitted in response to the Copyright Office’s Notice of Inquiry, issued October 6, 2008, to initiate the fourth triennial rulemaking proceeding required by Section 1201(a)(1)(C) of the Copyright Act. The Office seeks comments on the proposed classes to determine if any parties will be adversely affected in making noninfringing uses. The proposals are available at www.copyright.gov/1201/2008. Comments are due February 2, 2009. An electronic comment form is available on the Copyright Office’s website at www.copyright.gov/1201/comment-forms. For more information, see www.copyright.gov/fedreg/2008/73fr79425.pdf.

COPYRIGHT OFFICE CLARIFIES SCOPE AND APPLICATION OF SECTION 115 LICENSE IN INTERIM REGULATION; SEEKS COMMENTS

November 7, 2008: The Copyright Office issued an interim regulation clarifying the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord delivery (DPD). The Copyright Office issued its initial notice of proposed rulemaking on July 16, 2008 and solicited comments. Due to the intervening decision in The Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. Aug, 4, 2008), the Copyright Office extended its comment period and conducted a hearing on September 19, 2008. The interim regulation defines DPD in 17 U.S.C. 115(d), which gives three criteria: delivery, fixation, and specifically identifiable reproduction. It states that all phonorecords delivered must meet fixation requirements, including durational requirements, but it does not address the durational requirement threshold. It clarifies that all DPD, whether general or incidental, are included under the Section 115 license. The Copyright Office requests comments on the regulation, due January 6, 2009. For more information, see http://www.copyright.gov/fedreg/2008/73fr66173.pdf.

FEDERAL REGISTER CORRECTS OMITTED PORTION OF NOTICE ON FEE INCREASES, EXTENDS DUE DATE FOR COMMENTS

November 3, 2008: The Federal Register omitted a substantial portion of a chart displaying new and current fees in the Copyright Office’s notice of proposed rulemaking regarding the adoption of new fees for registration of claims, special services, and Licensing Division services. New fees cover much of the Office’s costs to register claims and other services. The proposed fees reflect the Copyright Office’s 2007 shift to electronic processing and rely on cost study data posted by the Copyright Office at http://www.copyright.gov/reports/fees2008.pdf. The notice, published on October 14, 2008 at http://www.copyright.gov/fedreg/2008/73fr60658.pdf, and the corrected chart, issued October 23, 2008 at http://copyright/gov/fedreg/2008/73fr63111.pdf, must be viewed together for the complete fee proposals. The revised due date for comments on fee increases is now November 24, 2008. The Copyright Office anticipates the new fee schedule to be implemented by April 1, 2009. For more information, see http://www.copyright.gov/fedreg/2008/73fr64905.pdf.

COPYRIGHT ROYALTY JUDGES GRANT PARTIAL DISTRIBUTION OF 1999-2003 SATELLITE ROYALTY FUNDS

December 8, 2008: Copyright Royalty Board Judges determined that 90% of the remaining 1999-2003 satellite royalty funds are not in dispute and will be distributed. Phase I Claimants reached a settlement regarding the royalties, and established a confidential royalty allocation. Citing Sections 801(b)(3)(A) and (C) of the Copyright Act, the Claimants asked the Judges (1) to reserve $15,140,000 of the royalties to resolve Phase II controversies, and (2) to authorize a lump-sum distribution of the residual 1999-2003 satellite royalties to Phase I Claimants through a common agent, or order a partial distribution.  Independent Producers Group (IPG) opposed the motion arguing that no settlement among Devotional Claimants occurred, because the party executing the proposed settlement was unauthorized to do so. IPG believes the reservation of at least 2% of satellite royalties for each year, an amount exceeding approximately $6.4 million, coupled with the Phase I Claimants’ agreement to return amounts awarded in excess of sums partially released, will sufficiently protect IPG’s devotional claimants’ interests. Phase I Claimants responded that they notified IPG of the settlement, responsibly informed the Judges of a global settlement and requested distribution of royalties.

The Judges declined to grant a global settlement, because they could not determine whether IPG’s contention regarding the authority of the Devotional representative had merit. Funds are scheduled to be distributed to Phase I Claimants on or after December 18, 2008. 

COPYRIGHT ROYALTY JUDGES GRANT PARTIAL DISTRIBUTION OF 2006 CABLE ROYALTY FUNDS

December 2, 2008:  The Copyright Royalty Board (CRB) granted partial distribution of 50% of the 2006 cable royalty funds in response to Phase I Claimants’ August 27, 2008 motion, in the following percentages for basic cable funds:

Of the over $71 million available for distribution, NPR will receive 0.18% of the total distribution amount, or approximately $127,000.  The remaining amount is then divided as follows:

Funds will be distributed on or after December 18, 2008.

COPYRIGHT ROYALTY JUDGES SOLICIT COMMENTS ON 2006 CABLE PHASE I PARTIAL DISTRIBUTION

October 15, 2008: The Copyright Royalty Judges are soliciting comments on motion of Phase I claimants for partial distribution of 2006 cable royalty funds. Phase I claimants requested distribution of 50% of 2006 cable royalty fund for the retransmission of television programs. The Judges seek comments regarding any controversy over the 2006 funds or objection to their distribution. Comments are due November 14, 2008. For more information, go to: http://www.loc.gov/crb/fedreg/2008/73fr61172.pdf

PRESIDENT BUSH SIGNS PRO-IP ACT INTO LAW

October 13, 2008: President Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (“PRO-IP Act”), increasing penalties and law enforcement resources for copyright crimes, and creating a Cabinet-level “piracy czar” to coordinate anti-piracy efforts domestically and worldwide. The Act amends federal copyright law to authorize civil copyright enforcement, rather than criminal action by the Attorney General; limit copyright registration requirements to civil infringement actions; and create a safe harbor for inaccurate copyright registrations. The Act also permits impounding all defendants’ records and materials used in the process of creating infringing copies. The Act redefines a felony copyright infringer, who may receive up to 10 years in prison, as someone who makes ten or more copies of one or more copyrighted works, selling $2500 or more during any 180-day period; or who distributes copyrighted work intended for commercial distribution by posting it on a computer network if the infringer knew or should have known the work was meant for commercial distribution. The Trademark Act has been revised regarding treble and statutory damages for counterfeiting. Statutory damages under the Trademark Act may total the greater of three times the profits or damages, plus reasonable attorney’s fees. For more information, go to http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3325enr.txt.pdf. (This is a link to the Senate bill. Public Law No. 110-403 has not yet been published.)

COPYRIGHT OFFICE TO DETERMINE IF WORKS ARE EXEMPT FROM PROHIBITION ON CIRCUMENTION OF COPYRIGHT PROTECTION SYSTEMS

October 6, 2008: The Copyright Office plans to conduct proceedings to determine if particular classes of works should be exempt from the prohibition on circumvention of technological measures that control access to copyrighted works. Under the Digital Millennium Copyright Act, the Librarian of Congress may exempt classes of works from the prohibition if users of such works are or will likely be adversely affected in their ability to make non-infringing uses due to the prohibition. The Office solicits written comments from all interested parties to obtain evidence on the potential adverse affects on particular classes of works. Comments are due December 2, 2008. A Notice of Public Rulemaking will be made available in December 2008, and will solicit comments due no later than February 2, 2009. For more information, go to www.copyright.gov/fedreg/2008/73fr58073.pdf.

NOTICE OF PROPOSED RULEMAKING PUBLISHED FOR MECHANICAL AND DIGITAL PHONORECORD DELIVERY RATES

October 1, 2008: The Copyright Royalty Judges published proposed regulations setting rates and terms for the use of musical works in limited downloads, interactive streaming and incidental digital phonorecord deliveries. Comments and objections are due October 31, 2008. The Copyright Royalty Judges propose to add Part 385 to Chapter III of title 37 of the Code of Federal Regulations, establishing rates and terms for the use of musical works under compulsory license for making and distributing physical and digital phonorecords, as set forth here: http://www.loc.gov/crb/fedreg/2008/73fr57033.pdf.

NOTICE OF 2002, 2003, AND 2004 DIGITAL AUDIO RECORDING TECHNOLOGY ROYALTY FUNDS DISTRIBUTION PROCEEDINGS

August 22, 2008: The Copyright Royalty Judges announced commencement of distribution proceeding for digital audio recording technology royalty fees in the 2002, 2003, and 2004 Musical Works Funds. Parties wishing to participate must file petitions and a $150 filing fee by September 22, 2008. For more information, go to http://www.loc.gov/crb/fedreg/2008/73fr49708.pdf.

COPYRIGHT OFFICE EXTENDS COMMENT DEADLINE FOR SECTION 115 LICENSES AND SCHEDULES HEARING ON PROPOSED REGULATIONS

August 8, 2008: The Copyright Office extended its deadline for comments in response to its Notice of Proposed Rulemaking (“NPRM”) recommending an amendment of Section 115 compulsory licenses to make and distribute phonorecords of a musical work to clarify its application to digital phonorecord deliveries. The recent decision of the United States Court of Appeals for the Second Circuit in The Cartoon Network LP v. CSC Holdings, Inc., 07-1480-CV (2d. Cir. Aug. 4, 2008), raises pertinent issues that parties submitting comments need time to consider. The Court concluded that data temporarily held in computer memory buffers was transitory, not fixed. This decision overturned a District Court ruling on fixation of buffer and other transitory copies that the Copyright Office NPRM expressly relied upon to define “Digital Phonorecord Delivery.” Comments are due August 28, 2008; reply comments are due September 15, 2008. The Office also announced a hearing on September 19, 2008 to discuss the proposed rulemaking. For more information, go to www.copyright.gov/fedreg/2008/FRNoticeExtensionofTime2008.pdf

FINAL ORDER REQUESTED ON AUTHORITY DIVISION BETWEEN COPYRIGHT ROYALTY JUDGES AND REGISTER OF COPYRIGHTS

August 8, 2008: The Copyright Royalty Board requested a decision by the Register of Copyrights as to whether the Copyright Royalty Judges’ authority to adopt terms under the section 115 license for digital phonorecord deliveries is solely limited to late payment, notice of use and recordkeeping regulations. If not limited, the Judges sought a determination detailing what other categories or types of terms the Judges are permitted to prescribe by regulation. On August 8, 2008, the Register of Copyrights responded with a Memorandum Opinion to the Copyright Royalty Board, which may be viewed at http://loc.gov/crb/fedreg/2008/73fr48396.pdf.

COPYRIGHT OFFICE SEEKS TO CLARIFY SCOPE OF SECTION 115 LICENSES TO APPLY TO DIGITAL PHONORECORD DELIERIES

July 17, 2008: The Copyright Office proposes to amend Section 115 compulsory licenses to make and distribute phonorecords of a musical work to clarify its application to digital phonorecord deliveries. Under the amended regulation, Section 115 licenses would apply to all musical works embodied in phonorecords that are made and distributed for private use by the public. Phonorecords made on the end-users’ RAM or hard drive, on transmission services’ servers, and all intermediate reproductions on the transmission network would fall within the scope of the amended Section 115 license. Comments are due August 15, 2008; reply comments are due September 2, 2008. For more information, go to www.copyright.gov/newsnet/2008/349.html.

NOTICE OF 2004 AND 2005 CABLE ROYALTIES PROCEEDINGS AND REQUEST FOR PETITIONS TO PARTICIPATE ANNOUNCED

July 15, 2008: The Copyright Royalty Board (“CRB”) announced commencement of Phase I distribution proceedings for 2004 and 2005 royalties collected under the cable statutory license. Parties wishing to participate must file petitions and, for those with claims exceeding $1000, a $150 filing fee by August 14, 2008. Controversies exist for this distribution, and CRB determined to consolidate the 2004 and 2005 royalty years into one proceeding to be administratively efficient. For more information, go to http://www.loc.gov/crb/fedreg/2008/73fr40623.pdf.

COPYRIGHT OFFICE EXTENDS DEADLINE FOR COMMENTS ON DIGITAL TELEVISION BROADCAST SIGNALS RETRANSMISSION RULEMAKING BY CABLE OPERATORS

July 14, 2008: The Copyright Office extended the deadline for comments and replies to the June 2, 2008 Notice of Proposed Rulemaking (“NPRM”). The NPRM sought comments on policy recommendations regarding the retransmission of digital television signals by cable operators under Section 111 of the Copyright Act. On June 30, 2008, the Copyright Office published a Section 109 Report to Congress discussing the retransmission issues suggesting changes to incorporate digital television signals into the cable statutory license royalty scheme. The Copyright Office granted the extension. Comments are due on July 31, 2008; reply comments are due September 16, 2008. For more information, go to www.copyright.gov/fedreg/2008/73fr40203.pdf.

COPYRIGHT OFFICE RECEIVES NOTICE OF INTENT TO AUDIT NEW NONSUBSCRIPTION AND SUBSCRIPTION SERVICES

July 14, 2008: The Copyright Office announced that it received from SoundExchange six notices of intent to audit several new nonsubscription and subscription services that transmit sound recordings under statutory licenses. These audits seek to verify statements of account for 2005. The subscription services being audited are: Yahoo!, Inc.; Real Netowrks, Inc.; and Last.fm, Ltd. The nonsubscription services being audited are: Yahoo!, Inc.; Real Networks, Inc.; AOL LLC; MTV Networks; Susquehanna Radio Corp.; and Last.fm, Ltd. For more information, go to www.copyright.gov/fedreg/2008/73fr40392.pdf.

COPYRIGHT OFFICE ALLOWS CLAIMS REGISTRATION ONLINE

July 1, 2008: The Copyright Office begins offering online registration of copyright claims. Online registration through the electronic Copyright Office (eCO) is now the preferred registration method for literary works, visual arts works, performing arts works, including motion pictures; sound recordings, and single serial publications. Advantages of online filing include a lower filing fee; the fastest processing time; online status tracking of your claim; secure payment by credit or debit card, electronic check, or Copyright Office deposit account; and the ability to upload certain categories of deposits directly into eCO as electronic files. To register a claim electronically, go to the Copyright Office website at www.copyright.gov and click on the eCO logo.

COPYRIGHT OFFICE PROPOSES RULES COVERING DIGITAL BROADCAST RETRANSMISSION ROYALTIES

June 2, 2008:  The Copyright Office seeks comments on proposed rule amendments governing cable operators’ digital television broadcast signal retransmissions under Section 111 of the Copyright Act. The Office recommends amendments to Section 201.17(b)(1) of Title 37 of the Code of Federal Regulations to accommodate cable systems’ digital television signal retransmission reporting.  Other issues include cable operators’ gross receipt calculations and multicasting reporting. Comments are due July 17, 2008.  Reply comments are due September 2, 2008. For further information go to http://www.copyright.gov/fedreg/2008/73fr31399.pdf.

2000-2003 CABLE ROYALTIES PROCEEDING & REQUEST FOR PETITIONS TO PARTICIPATE ANNOUNCED

April 2, 2008: Copyright Royalty Judges announced the commencement of a proceeding to determine the Phase I distribution of 2000, 2001, 2002, and 2003 royalties collected under the cable statutory license. The Judges also announced the due date, May 2, 2008, by which a party wishing to participate in the distribution proceeding must file its petition to participate and the accompanying $150 filing fee for claims exceeding $1,000. For more information, go to http://www.loc.gov/crb/fedreg/2008/73fr18004.pdf.

ONLINE FILING NOW AVAILABLE AT COPYRIGHT OFFICE

February 15, 2008: Deposit account holders now have the opportunity to participate in beta testing of eCO (the electronic Copyright Office) for filing basic copyright claims as well as replenishing deposit accounts electronically.  For eCO users filing online, the Copyright Office offers registration at a reduced fee, $35 instead of $45, a savings of $10 for each registration.  Some benefits include: creating one or more templates that include information often repeated in applications and attaching electronic deposit copies for some works, particularly for unpublished and most digital works.  For published works, applicants will continue to be required to send deposit copies by mail with a cover sheet for each specimen.

To enroll as a beta tester, sign up on the Copyright Office website http://www.copyright.gov/eco/beta-announce.html.  This firm successfully participates in beta testing of eCO.

U.S. SENATE INTRODUCES NONPROFIT EXEMPTION FOR LIVE FOOTBALL TELECASTS

February 11, 2008: The Senate introduced S 2591 on February 4th, 2008 to provide an exemption from exclusive rights in copyright for certain nonprofit organizations to display live football games. For more information, go to http://thomas.loc.gov/cgi-bin/query/z?c110:s.2591:.

COPYRIGHT ROYALTY BOARD SOLICITS COMMENTS FOR DISTRIBUTION OF 2004-05 CABLE ROYALTIES

January 30, 2008: Copyright Royalty Judges issued a Notice and announced a partial Phase I settlement in connection with the 2004 and 2005 cable royalty funds. The Judges are also soliciting comments on a motion for partial distribution in connection with these funds. Comments are due February 29, 2008. For more information, go to http://www.loc.gov/crb/fedreg/2008/73f5597-2.pdf.

The Notice characterizes a motion for 50% partial distribution of 2004-05 cable royalties as a partial settlement, rather than a standard motion for partial distribution.

COPYRIGHT ROYALTY BOARD REQUESTS COMMENTS REGARDING DISTRIBUTION OF 1999-2005 SATELLITE ROYALTIES

January 30, 2008: Copyright Royalty Judges requested comments as to the existence of controversies at Phase I and Phase II for distribution of the 1999 through 2005 satellite royalty funds. Comments are due February 29, 2008. For more information, go to http://www.loc.gov/crb/fedreg/2008/73f5597-2.pdf.

COPYRIGHT ROYALTY BOARD REQUESTS PETITIONS TO PARTICIPATE IN 1998-1999 PHASE II CABLE DISTRIBUTION PROCEEDING

January 30, 2008: Copyright Royalty Judges issued a Notice announcing a proceeding to determine the Phase II distribution of 1998 and 1999 cable royalties. Parties who wish to participate in this distribution proceeding must file a Petition to Participate with a $150 filing fee by February 29, 2008. For further information, go to http://www.loc.gov/crb/fedreg/2008/73f5596.pdf.

COPYRIGHT ROYALTY BOARD REQUESTS COMMENT ON PROPOSED REGULATIONS SETTING RATES AND TERMS FOR BUSINESS ESTABLISHMENT SERVICES

January 30, 2008: Copyright Royalty Judges published proposed regulations that set rates and terms for making an ephemeral recording of a sound recording by business establishment services for 2009-2013. Comments are due February 29, 2008. For further information, go to http://www.loc.gov/crb/fedreg/2008/73f5466.pdf.

Archives

April 4, 2007: The Copyright Office proposed amending its regulations governing copyright renewal applications and seeks public comment. Since January 1, 2006, all renewal applications have related to works subject to automatic renewal, already in their renewal terms. Comments are due May 4, 2007. For more information go to the Copyright Office's website at http://www.copyright.gov/fedreg/2007/72fr16306.html.

Under the proposed amendment, the Copyright Office will provide revised application forms for the registration of renewal claims. These forms will be available on the Copyright Office website and through postal mail upon request. The proposed revised Form RE, revised Form RE/CON, and revised Form RE/ADDENDUM may be viewed now on the Copyright Office website at http://www.copyright.gov/proposedforms.

March 2, 2007: Copyright Royalty Board sets rates for the public performance of works by Internet radio broadcasters from 2006-2010. The new rates to stream one song to one listener over the Internet are as follows:
2006: $0.0008
2007: $.0011
2008: $.0014
2009: $.0018
2010: $.0019
Considering that the average station plays 16 songs per hour, sites would have to pay almost 1.30 cents per listener per hour using the 2006 rate, and would owe this retroactively, in addition to paying licensing fees going forward. For further information, go to the Copyright Royalty Board website at http://www.loc.gov/crb/proceedings/2005-1/rates-terms2005-1.pdf.

September 8, 2005: Copyright Royalty Board Requests Comments in Existence of Controversies in Satellite Royalty Distributions for 2001, 2002, AND 2003 (70 FR 46193). The Copyright Royalty Board seeks comments on whether any controversy exists that would preclude distributing 50 percent of the satellite royalty funds to the Phase I parties for television programming years 2001, 2002, and 2003. If no controversy exists, or if no comments are received, the Board will grant the motion of the Phase I parties for the partial distribution of the 2001-2003 satellite royalty funds, subject to the protective refund conditions required for partial distributions. The Board also seeks comment on the existence and extent of any controversies to the 2001-2003 satellite royalty funds, either at Phase I or Phase II with respect to the 2001-2003 satellite royalty funds that would remain if the partial distribution is granted. To be considered, comments are due by September 8, 2005. For further information, go to the Copyright Royalty Board website at http://www.loc.gov/crb/fedreg/2005/70fr46193.html.

July 2005: Cable & Satellite Retransmission Royalty Claims Due to be Filed at Copyright Royalty Board. U.S. retransmission royalty claims for programming year 2004 are due to be filed during the month of July.  Due to the last day of the month falling on a weekend, claims will be accepted on August 1.

May 31, 2005: Copyright Royalty Board Sets Procedural Regulations.  Comments Due: June 30, 2005 (70 FR 30901)
The Interim Chief Copyright Royalty Judge, on behalf of the Copyright Royalty Board of the Library of Congress, issued new regulations governing the organization, administration, and procedures of the Board, for immediate use in proceedings that are subject to the jurisdiction of Copyright Royalty Judges. The Board replaced the Copyright Arbitration Royalty Panel ("CARP") system with
three permanent Copyright Royalty Judges.  The new regulations require a party seeking to participate in a royalty fund distribution proceeding to pay a filing fee of $150. That filing fee requirement is waived, however, if the contested amount of the claim is $10,000 or less.  For further information, go to the Copyright Office website at http://www.copyright.gov/crj/fedreg/2005/70fr30901.pdf.

January 26, 2005: Hammerman to Speak at NATPE 2005

Attorney Ted Hammerman, will speak at Media/Professional Liability Insurance's seminar, "Lights, Camera...Lawsuit!? Season III," at the National Association of Television Programming Executives' annual conference, NATPE 2005, in Las Vegas, Nevada. Hear how to keep your content out of courts and on the air. A select panel of media law experts, including Hammerman, share their tips and advice on how to avoid and limit media liability claims against producers, distributors and content buyers. This workshop will also address clearance issues for music, talent, and trademarks as well as protecting your intellectual and literary properties, copyright registration, and distribution agreements. The panel will run from 2:45-3:35 p.m. in Ballroom I of Mandalay Bay Resort, Las Vegas, Nevada.

January 10, 2005: Concluding date of voluntary negotiation period for the purpose of determining royalty fees for analog signals to be paid by satellite carriers.

The Copyright Office announced the voluntary negotiation period for the purpose of determining the royalty fees for analog signals to be paid by satellite carriers under the satellite carrier compulsory license. The voluntary negotiation period began December 30, 2004, and concludes on January 10, 2005. For further information, go to the Copyright Office website at http://www.copyright.gov/fedreg/2004/69fr78482.html.

December 2004:
Canadian Retransmission Collective Closes Royalty Distributions for 2000-2001
Canadian Retransmission Collective Releases Partial Distribution for 2003.
Copyright Collective of Canada Releases Partial Distribution for 2002.

Intellectual Property Protection and Courts Amendments Act of 2004 (P.L. 108-482) Signed

December 23, 2004: President Bush signed into law the Anti-counterfeiting Amendments of 2003. The law rewrites federal criminal code provisions regarding trafficking in counterfeit labels. The law prohibits knowingly trafficking in: (1) a counterfeit label affixed to, enclosing, or accompanying (currently, affixed to) a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, or documentation or packaging; or (2) counterfeit documentation or packaging. The law expands the definition of "counterfeit label" to include a genuine label that is: (1) distributed for a product for which it was not intended, without authorization of the copyright owner; or (2) altered to falsify the number of authorized copies, the authorized user, or the edition of the program. The law authorizes the court, when a person is convicted of violating this Act, to order the forfeiture and destruction or other disposition of any equipment, device, or material used to manufacture, reproduce, or assemble the counterfeit labels. The law authorizes a copyright owner who is injured, or threatened with injury, by a violation of this Act to bring a civil action in U.S. district court and authorizes the court: (1) to grant one or more temporary or permanent injunctions to prevent or restrain violations of the Act; (2) to order the impounding of any article in the alleged violator's custody or control that the court has reasonable cause to believe was involved in a violation; and (3) to award to the injured party reasonable attorney fees and costs, actual damages, and any additional profits of the violator or statutory damages, as specified.

Satellite Home Viewer Extension and Reauthorization Act of 2004 Signed
(contained in Consolidated Appropriations Act, 2005, P.L. 108-447)

December 7, 2004: President Bush signed the Consolidated Appropriations Act for 2005. As part of the law, satellite television companies have 18 months to phase out a two-dish solution for reception of a certain local broadcast channels, an issue that targets EchoStar Communications and its use of two dishes for receiving a select set of local TV channels for a number of markets. The law includes a provision allowing satellite TV companies to deliver "significantly viewed" stations to consumers living outside the station's market. The law dictates royalty rate language that allows the satellite operators and program suppliers involved to negotiate their business arrangements rather than going through a cable arbitration royalty panel process. The law extends for five years the compulsory license that allows digital broadcast satellite services to provide superstations and distant network signals to subscribers. The law also allows for the creation of a "digital white area," which will permits satellite TV companies to deliver distant broadcast digital and high-definition television signals to consumers who cannot receive local digital TV signals.

Copyright Royalty and Distribution Reform Act of 2004 (P.L. 108-419) Signed

November 30, 2004: President Bush signed the Copyright Royalty and Distribution Reform Act of 2004. Section 3 of the Act amends federal copyright law to repeal requirements regarding the establishment and purpose of copyright arbitration royalty panels and replaces them with requirements setting forth the appointment and functions of Copyright Royalty Judges. The law requires Copyright Royalty Judges to: (1) accept or reject certain royalty claims filed on the basis of timeliness or the failure to establish the basis for a claim; (2) accept to reject rate adjustment petitions and petitions to participate in rate negotiations; (3) determine the status of digital audio recording devices and digital audio interface devices; and (4) adopt, except under specified conditions, as the basis for statutory terms and rates or as a basis for the distribution of statutory royalty payments, an agreement concerning such matters reached among some or all of the participants in a proceeding. The law authorizes Copyright Royalty Judges to: (1) make any necessary procedural or evidentiary rulings in any proceeding; and (2) before commencing a proceeding, to make any such rulings that would apply to the proceedings; and (3) consult with the Register of Copyrights in making any rulings under the Act.

Copyright Office Proposes to amend its regulations governing the filing of claims to allow for the on-line submission of cable, satellite, and DART claims.  Comments due November 17, 2004. (69 FR 61325)

Intermediary hosts Hispanic Heritage Awards as Bronze Sponsor. September 10, 2004.

MPAA releases partial distributions for Cable Retransmission Royalties for Television Programming Year 2002. September 1, 2004.

COPYRIGHT OFFICE ANNOUNCES ALTERNATIVE METHODS FOR FILING CLAIMS TO THE 2003 CABLE AND SATELLITE ROYALTY FUNDS (69 FR 30577)
 
May 28, 2004.  The Copyright Office of the Library of Congress announced alternative methods for filing claims to the 2003 cable and satellite royalty funds. In addition to the traditional methods, the Copyright Office offers an electronic filing option and strongly encourages claimants to use this method when filing their 2003 cable and satellite claims to better ensure that claims are timely received. Cable and satellite forms, including instructions for filing the claim electronically, will be available from July 1, 2004, through August 2, 2004, on the Copyright Office website at www.copyright.gov. Claims submitted online must be received on the Office's server no later than 11:59 p.m. eastern daylight time on August 2, 2004. Claims may also be delivered by hand or mailed to the Office.

Library of Congress Accepts Royalty Determinations for 1998 and 1999

Effective January 26, 2004, upon the recommendation of the Register of Copyrights, the Librarian of Congress accepted the determination of the Copyright Arbitration Royalty Panel (CARP) in the Phase I distribution of the 1998 and 1999 cable royalty funds, and announced the final Phase I distribution of those funds. The full text of the Librarian's order and the Register's recommendation is available on the Copyright Office website at http://www.copyright.gov/fedreg/2004/69fr3606.html.

The breakdown of over $112 million for 1998 and $117 million for 1999 is as follows:

Copyright Resources

Copyright Office

Copyright Arbitration Royalty Panel

Background of Copyright Royalty Claims

On October 19, 1976, President Ford signed into law a complete revision of the copyright law of the United States (title 17 of the United States Code). Most provisions of this statute came into force on January 1, 1978, superseding the Copyright Act of 1909. These provisions made significant changes in the copyright law. Further important changes resulted from the Berne Convention Implementation Act of 1988, which took effect March 1, 1989; the Copyright Renewal Act of 1992 (P.L. 102-307) enacted June 26, 1992, which amended the renewal provisions of the copyright law; and the Sonny Bono Copyright Term Extension Act of 1998 (P.L. 105-298) enacted October 27, 1998, which extended the term of copyrights for an additional 20 years.

In 1976, the revised Copyright Act introduced retransmission rights for owners of film and television programs. Its introduction required retransmitters, such as cable system operators or satellite companies, who profited from providing broadcast signals to their customers, to pay for the programs in the signals that are "distant" (rather than local).

With input from both producers and retransmitters, the Copyright Office of the Library of Congress set forth regulations that spelled out how much the retransmitters must pay, the circumstances under which they must pay, and to whom they must pay copyright royalties.

The Copyright Office required that the retransmission royalties be paid to its own Licensing Division. The Licensing Division collects distant signal royalties for copyright holders, including independent program producers, and producers of educational television, sports programming, news, weather, movies, religious programming, infomercials and others.

When a retransmitter receives an off-air (or, free-to-air) transmission of a local television station and extends that signal beyond its good quality reception area with the boost of a satellite or microwave, and delivers that to subscribers, it is officially retransmitting the signal. At that moment the cable and satellite companies retransmitting the signal are required by law to pay for using the programs. Retransmitters make the required payments, which are set by the Copyright Office, on a semi-annual basis who in turn distributes the royalties to the owners of the programs provided that proper claims are filed in July of each year.