Acquisition and Deposit of Unpublished Audio and Audiovisual Transmission Programs

AGENCY:

Copyright Office, Library of Congress.

ACTION:

Final rule.

SUMMARY:

This final rule amends the regulations of the Copyright Office to extend the Library of Congress' recording of unpublished transmission programs that have been fixed in a tangible medium of expression, which currently involves the recording of unpublished television programs, to include the recording of unpublished radio and other audio and audiovisual transmission programs.

EFFECTIVE DATE:

November 26, 2004.

FOR FURTHER INFORMATION CONTACT:

David Carson, General Counsel, or Charlotte Douglass, Principal Legal Advisor, Office of the Copyright General Counsel, Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, DC 20024-0400. Telephone: (202) 707-8380; Fax: (202) 707-8366.

SUPPLEMENTARY INFORMATION:

On August 5, 2004, the Copyright Office published a notice of proposed rulemaking seeking comment on a proposed amendment to its regulation codified at 37 CFR 202.22. Section 407(e)(1) of the Copyright Act provides that the Librarian of Congress may record unpublished transmission programs that have been fixed and transmitted to the public in accordance with regulations established by the Register of Copyrights. Up until now, those regulations have provided for the fixation only of unpublished television transmission programs. However, the Library now wishes to record other audio and audiovisual transmission programs as authorized by section 407(e)(1), and the proposed amendment would provide for such recording.

Specifically, the amendment would permit the Library of Congress to record fixed and unpublished audio and audiovisual transmission programs. As with the present rule for television, this regulation would enable the Library to record or demand unpublished radio transmission programs. Based on empirical and survey information, the Copyright Office's presumption is that commercial and noncommercial radio transmission programs are unpublished. In consideration of the significance of these widely disseminated forms of public communication, the regulation would also extend the Library's acquisition authority to cable, satellite and Internet transmission programs.

Copyright owners may use the recordings made or demanded by the Library of Congress under this regulation to satisfy the deposit requirements for registration of copyright claims. 17 U.S.C. 408.

In response to the notice of proposed rulemaking, the Copyright Office received two comments. The California Association of Library Trustees and Commissioners supported the Library's proposed rule, stating that increasing the Library's holdings in this way benefits the archive and research community. The National Association of Broadcasters (NAB) did not oppose the regulation, but asserted that the notice of proposed rulemaking provided no basis for presuming that all radio transmission programs have been fixed. NAB pointed out that the Library's existing practice with respect to television programs is to provide notice to commercial television stations of its intention to record specific programs, or that it has recorded such programs, at which point the station may confirm or dispute the Library's belief with respect to the fixed or unpublished status of the program. Moreover, NAB asserted that in order meaningfully to exercise the time limited option of using the Library's recording as a deposit when registering claims to copyright, its members need to receive notice of the particular programs that the Library has recorded.

In response to both of NAB's concerns, the final rule announced herein includes a new provision requiring the Library to maintain on its Web site, at http://www.loc.gov/rr/record , for audio recordings, or http://www.loc.gov/rr/mopic , for audiovisual recordings, a list of the transmission programs that it has recorded under this authority. A radio, cable, satellite, or Internet transmission program that has been recorded by the Library shall be included on the list within fourteen days of the recording by the Library. Making this information publicly available on the Web site gives the copyright owner the opportunity to challenge the Library's presumption that a particular transmission program had been fixed and unpublished, and it also gives the copyright owner notice that a recording has been made by the Library that the owner may use as a deposit in connection with registration of a copyright claim in the transmission program.

List of Subjects

• Copyright
• Sound recordings

Final Regulation

In consideration of the foregoing, the Copyright Office amends part 202 of 37 CFR to read as follows:

PART 202—REGISTRATION OF CLAIMS TO COPYRIGHT

1. The authority citation for part 202 continues to read as follows:

Authority: 17 U.S.C. 702, 407 and 408.

2. Section 202.22 is amended as follows:

a. by revising the section heading;

b. by revising paragraph (a);

c. by revising paragraph (b)(1);

d. in paragraph (b)(2), by removing “by Pub. L. 94-553”;

e. by revising the heading of paragraph (c);

f. by revising paragraph (c)(1);

g. in paragraph (c)(2), by removing “copied off-the-air” and adding “recorded” in its place;

h. in paragraph (c)(3), by removing “copy off-the-air” and adding “record” in its place, by removing “television”, and by removing “copying” and adding “recording” in its place;

i. by revising paragraph (c)(4);

j. in paragraph (c)(5) introductory text, by removing “off-the-air copying” and adding “recording” in its place;

k. in paragraph (c)(5)(iii), by removing “with notice of copyright”;

l. in paragraph (c)(6) introductory text, by removing “off-the-air” and by adding “or phonorecord” after ”copy”;

m. in paragraph (c)(7), by adding “or phonorecord” after “copy”;

n. by revising (c)(8) introductory text;

o. in the heading for paragraph (d), by removing “television”;

p. in paragraph (d)(1), by adding ”or phonorecord” after “copy”;

q. in paragraph (d)(3)(ii), by adding “or phonorecord” after “copy” each place it appears;

r. in paragraph (d)(3)(iv), by removing “copies”' and adding “of the copies or phonorecords” after “use”;

s. in paragraph (d)(3)(v), by removing “(a) and (c)”;

t. in paragraph (d)(3)(vi), by adding “, or in the case of an audio transmission program, a compliance phonorecord,” after “copy”;

u. in paragraph (d)(4), by adding “or phonorecord” after “copy” each place it appears;

v. in paragraph (d)(5), by adding “and phonorecords” after “Copies”;

w. in paragraph (d)(6)(iii), by removing “shall be granted” and adding “should be granted” in its place;

x. in the heading of paragraph (e) and paragraph (e)(1), by adding “and phonorecords” after “copies” each place it appears, and by adding “or phonorecord” after “copy”;

y. by revising paragraph (e)(2);

z. in paragraph (f)(1), by adding “and phonorecords” after “Copies”;

aa. in paragraph (f)(1)(ii), by adding “or phonorecord” after “copy”;

bb. in paragraph (f)(2), by adding “and phonorecords” after “Copies”, and by adding “or phonorecord” after “copy” each place it appears; and

cc. in paragraph (g)(1), by adding “or phonorecords” after “copies”, and by removing “television” and by adding “audio or audiovisual” in its place.

The additions and revisions to § 202.22 read as follows: