Distribution of 1995, 1996, 1997, and 1998 Digital Audio Recording Technology Royalties

AGENCY:

Copyright Office, Library of Congress.

ACTION:

Initiation of arbitration.

SUMMARY:

The Copyright Office of the Library of Congress is announcing initiation of the 180-day arbitration period for the distribution of the1995-98 digital audio recording technology (“DART”) royalties in the Musical Works Funds.

EFFECTIVE DATE:

April 10, 2000.

ADDRESSES:

All hearings and meetings for the 1995-98 DART distribution proceeding shall take place in the James Madison Memorial Building, Room LM-414, First and Independence Avenue, SE, Washington, DC 20540.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel, or Tanya M. Sandros, Senior Attorney, Copyright Arbitration Royalty Panel (“CARP”), P.O. Box 70977, Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 252-3423.

SUPPLEMENTARY INFORMATION:

Background

Section 251.72 of 37 CFR provides:

If the Librarian determines that a controversy exists among claimants to either cable, satellite carrier, or digital audio recording devices and media royalties, the Librarian shall publish in the Federal Register a declaration of controversy along with a notice of initiation of an arbitration proceeding. Such notice shall, to the extent feasible, describe the nature, general structure and schedule of the proceeding.

The notice published today fulfills the requirements of § 251.72 for the distribution of DART royalties in the Musical Works Funds for the years 1995, 1996, 1997, and 1998.

On May 4, 1999, the Copyright Office published a notice in the Federal Register requesting comment as to the existence of a controversy concerning the distribution of the 1995, 1996, 1997, and 1998 DART royalty fees in the Musical Works Funds and consolidating the consideration of the distribution of the 1995-98 Musical Works Funds into a single proceeding. 64 FR 23875 (May 4, 1999). The following parties filed comments and Notices of Intent to Participate: Carl DeMonbrun/Polyphonic Music, Inc. (“DeMonbrun”); Broadcast Music, Inc. (“BMI”), the American Society of Composers, Authors and Publishers (“ASCAP”), SESAC, Inc. (“SESAC”), the Harry Fox Agency (“HFA”), the Songwriters Guild of America (“SGA”), and Copyright Management, Inc. (“CMI”) (collectively the “Settling Parties”); James Cannings/Can Can Music (“Cannings”); Alicia Carolyn Evelyn (“Evelyn”); and Eugene “Lambchops” Curry/ TaJai Music, Inc. (“Curry”).

On September 21, 1999, the Office issued an Order announcing the precontroversy discovery schedule for the proceeding, beginning on November 15, 1999. See Order in Docket No. 99-3 CARP DD 95-98 (September 21, 1999). Prior to commencement of the 45-day precontroversy discovery period, the Office was notified that Cannings and DeMonbrun had settled their respective controversies with the Settling Parties. Thus, the parties who will appear before the CARP in the current proceeding are the Settling Parties, Evelyn, and Curry.

On November 15, 1999, the Settling Parties filed a motion requesting that the controversy be decided on the basis of written pleadings. The Office designated to the CARP the issue of whether to suspend formal hearings and decide the case on the written pleadings. See Order in Docket No. 99-3 CARP DD 95-98 (December 22, 1999).

The September 21, 1999, Order also set the initiation of the arbitration for February 28, 2000. However, the Office's duty to publish every two years a new list of arbitrators eligible to serve on a CARP rendered the February 28 initiation date unworkable. See 37 CFR 251.3. On January 14, 2000, in accordance with § 251.3(b), the Office published the list of arbitrators eligible to serve on a CARP initiated during 2000 and 2001. 65 FR 2439 (January 14, 2000). Because the time period between the publication of the arbitrator list and the February 28 initiation date was not sufficient to complete the selection of arbitrators for this proceeding, the Office reset the initiation of the arbitration to April 10, 2000. See Order in Docket No. 99-3 CARP DD 95-98 (March 14, 2000).

Selection of Arbitrators

Section 802(b) of the Copyright Act instructs the Librarian to select two arbitrators within 10 days of initiation of the proceeding. The Librarian has already completed this task, and the two arbitrators are:

The Honorable John B. Farmakides

The Honorable Harold E. Himmelman

The third arbitrator, who shall serve as Chairperson, will be selected in accordance with section 802(b).

Initiation of Proceeding

Pursuant to § 251.72 of 37 CFR, the Copyright Office of the Library of Congress is formally announcing the existence of controversies in the distribution of digital audio recording technology royalties in the Musical Works Funds for the years 1995, 1996, 1997, and 1998, and is initiating an arbitration proceeding under chapter 8 of title 17 of the United States Code to resolve distribution of these funds. The arbitration proceeding commences on April 10, 2000, and runs for a period of 180 days. The arbitrators shall file their written report with the Librarian of Congress by October 10, 2000, in accordance with § 251.53 of 37 CFR.

Scheduling of the 1995-98 DART royalty distribution proceeding is within the discretion of the CARP. The Library will publish the schedule of the proceedings, as required by 37 CFR 251.11(b), as soon as it is available.