On December 17, 1979, the Copyright Office published in the Federal Register (44 FR 73123) an Advance Notice of Proposed Rulemaking in order to adopt certain technical and clarifying amenoments to its revised regulations implementing portions of section 111 of the Copyright Act of 1976. One of the issues addressed in this rulemaking was the appropriate calculation of a distant signal equivalent (DSE) value in cases where a distant signal is either added or deleted during an accounting period. At that time, the Copyright Office received comments from the NCTA and other representatives of the cable television industry which sugpested that a cable system should be properly permitted to reouse the ordinary DSE value of a station to reflect the actual carriage of the signal during the accounting period. On July 3, 1980 (45 FR 45270), the Copyright Office rejected this suggestion and issued $201.17(f)(3) to reflect this decision. The same principle is reflected in the interim regulations issued May 20, 1982 (47 FR 21786), 37 C.F.R. 201.17 (f)(3)(1982). The issue raised in your letter is whether the recent legislation compels a modification of this regulation, at least with respect to post-Malrite signals dropped before March 15, 1983. In light of the meager legislative history concerning the Joint Resolution, the Copyright Office, for several reasons, is unable to conclude that a modification of its regulation was intended or effected. In preparing this letter, however, we have noted the following: 1. Neither the House Joint Resolution not the Conference Report deals precisely with its effect on the Copyright Office Regulation cited. 2. In his letter to the Copyright Office dated December 20, 1982, Congressman Vic Fazio states: Please be advised that the intent of Congress in imposing the stay was that cable operators be free to drop signals subject to the new 3.75 percent rate at any time prior to March 15, 1983 without incurring any liability for the new rate during any part of the six month accounting period. (underscoring added) There is no reference in this letter to proration of the royalty payment where a signal is dropped prior to March 15, 1983. 3. In his remarks in the House of Representatives on December 20, 1982, Congressman Bo Ginn states: I believe that the Tribunal should look carefully at whether an operator should have to pay for a full 6-month period for a signal that he crops on or before March 15. It seems to me that Congress has changed the normal circum Although this passage demonstrates a recognition of the issue, it does not provide a basis for concluding that Congress intended that the Copyright Office modify its regulation and practices accordingly. Section 152 of House Joint Resolution 631 was enacted without any hearings and with little legislative history to guide us. The Copyright Office must interpret the legislation in light of its existing regulation. We cannot infer from this history & Congressional intent to modify that regulation. For these reasons, the Copyright Office has concluded that a cable system which carries an affected signal during any part of the January-June 1983 period must calculate its royalty as if it were carried for the entire accounting period. The Office also reiterates that, subject to an adjudication or other judicial direction or interpretation to the contrary, we intend to apply the current rates for any affected signals carried during the accounting period but discontinued prior to March 15, 1983. We hope that this letter will be helpful to you and the other interested parties, and that you will understand our relustance to go beyond the opinions here given. OPYRIGHT December 30, 1982 ་་་ 2 BRARY F ONGRESS ashington Brenda Lee Fox, Esquire General Counsel National Cable Television Association Dear Ms. FOX: This is in response to submissions made on behalf of the National Cable Television Association and Turner Broadcasting Systems, Inc. dated December 29, 1982. In your letters, you request the Copyright Office to reconsider its conclusions stated in its letter of opinion dated December 27, 1982, and/or waive 37 CFR $201.17(f) (3) for carriage of affected post-Malrite signals during the first accounting period of 1983 that are discontinued prior to March 15, 1983. As with the Office's previous correspondence, our reply is merely a letter of opinion; it is not an adjudication of a contested matter. For the reasons hereinafter given, the Copyright Office does not modify its earlier conclusions. Furthermore, the Office must deny the request for a waiver of $201.17(f)(3) of its regulations. The basis of our opinion is that nothing in the text of Section 152 of the House Joint Resolution nor in the Conference Report explicitly or implicitly overturns, or mandates a modification of, 37 C.F.R. 201.17(f) (3). The Resolution is an appropriations measure prohibiting the expenditure of funds to implement part of the October 20, 1982 Copyright Royalty Tribunal rate-making determination. The Resolution contains a phrase that "no obligation or liability for copyright royalty fees shall accrue until March 15, 1983 pursuant to the CRT determination relating to] establishment of a royalty rate of 3.75 per centum. ... The text does not legislate with respect to other issues, including copyright liability at the current royalty rates. If Congress had any intention to address issues other than the 3.75 royalty rate, it was not expressed in either the Resolution or the Conference Report. You have urged that individual members of Congress expressed views on the floor of the Congress that support your interpretation of the House Joint Resolution. However, Congressman Ginn simply said "the Tribunal should look carefully at its regulations. [128 CONG. REC. B 10448, daily ed., Dec. 20, 1982)]. Similarly, Senator D'Amato expressed the "hope that the Copyright Office of the Library of Congress will promulgate new regulations. .." [128 CONG. REC. S 15771, daily ed., Dec. 20, 1982. While Senator D'Amato also expressed the view that a change in the regulation would be "fully consistent" with Congress' intent, he did not say that the House Joint Resolution effected such a change. In any event, the views of individual members of Congress are not ordinarily given the same authoritative weight by the courts as legislative reports. The Office believes that the nature of our regulation has been misunderstood: it is an interpretive rule; it does not prescribe any conduct not already required by the terms of the Copyright Act. This point is especially important in considering your requests for "waiver" of the regulation. Since the regulation in question is an interpretation of the statute, it would be beyond the authority of the Copyright Office to issue a waiver which would, in fact, result in a waiver of the copyright liability imposed by the Act in a particular case of use. To reach a decision favorable to your requests, the Office would have to change an interpretation of the Act adopted in 1978, and confirmed by regulation in 1980, following a formal rulemaking proceeding. Contrary to the impression given in the request made on behalf of Turner Broadcasting, the rationale for this interpretation is not "currently under review by the Copyright Office"; only the further narrowing of the possible exceptions to the general principle which result from the 1980 FCC deregulation is being considered at this time. This letter of opinion addresses only the narrow issues raised in your submissions concerning the applicability of 5201.17.17(£)(3). It does not express an opinion on the issues referenced but not commented upon in our December 27, 1982, letter of opinion or raised in your submissions. These issues may be judicially decided before or after March 15, 1983. We hope that judicial guidance will be forthcoming; but because it is possible that the Copyright Office may ultimately be required to interpret some aspects of the subject legislation, it would be imprudent to go beyond what is required at this time. Finally, it should be emphasized that the deposit of Statements of Account and statutory royalty fees in the Copyright Office, and the placing of the Statements in our completed records, do not imply that the statutory requirements of section 111 of the copyright law have been met. While we believe 37 C.F.R. 201.17(f)(3) represents the correct interpretation of the Act, systems continue to have the opportunity to submit whatever Statements and royalty fees they believe are satisfactory to meet their statutory obligations under the compulsory license." We hope that this letter will be helpful to you and the other interested parties, and that you will understand our reluctance to go beyond the opinions here given. ANNOUNCEMENT from the Copyright Office, Library of Congress, Washington, D.C. 20559 STATEMENT OF VIEWS COMPULSORY LICENSE FOR CABLE SYSTEMS INQUIRY The following excerpt is taken from Volume 48, Number 62 of the Federal Register for Wednesday, March 30, 1983 (pp. 13166-7) LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. RM 83-3) Compulsory License for Cable AGENCY: Copyright Office, Library of ACTION: Statement of Views. SUMMARY: By Notice of Inquiry published in the Federal Register of February 11, 1983 (48 FR 6372-6373), the Copyright Office invited public comment on four general questions: substitution for specialty stations, expanded geographic coverage, expanded temporal carriage and ungranted waiver requests. After analyzing the comments received, the Copyright Office reached certain tentative conclusions on specific issues and communicated its views to the interested parties in a letter of opinion dated March 11, 1983. The Office is publishing this Statement of Views to inform the public of the positions taken in its letter of opinion and to address one additional point. FOR FURTHER INFORMATION CONTACT: Dorothy Schrader, General Counsel U.S. Copyright Office. Library of Congress, Washington, D.C. 20559. Telephone: (202) 287-8380. SUPPLEMENTARY INFORMATION At a public meeting on October 20, 1982, the Copyright Royalty Tribunal [Tribunal) adopted its final rule in Docket No. 81-2 Cable Television Royalty Fee Adjustment Proceeding. The Tribunal established a new schedule of royalty rates in light of the repeal by the Federal Communications Commission (FCC) of certain distant signal carriage and syndicated exclusivity restrictions. The text of the Tribunal's amendments to 37 CFR Part 308 were published in the Federal Register of Friday, November 19, 1982 (47 FR 52146-52159). Following the publication of the Tribunal's final rule in the rate adjustment proceeding, the Copyright Office received letters from several cable system operators and their representatives requesting interpretative rulings in connection with the application of the new 3.75% rate in specific instances. To assist the Copyright Office in responding to the various letters of inquiry and requests for interpretative rulings, the Office published a Notice of Inquiry in the Federal Register of February 11, 1983 (48 FR 8372-6373) inviting comment on four general issues. Twenty-one comments were submitted on behalf of cable system operators, program suppliers. sports claimants, and broadcasters. The Office analyzed these comments, the Copyright Act and its legislative history. the CRT rate determination and certain former FCC regulations to the extent possible, given the wish of cable systems for guidance before March 15. 1983, and reached the conclusion tha: only a limited response to the questions posed to the Notice of Inquiry was appropriate at this time. In its letter of opinion dated March 11. 1983, the Copyrigh: Office responded to certain urgent requests from cable system operators for guidance regarding the 3.55%% rate increase, however, the views expressed were tentative and did not represent any effort to decide any issues that may be considered by the U.S. Court of Appeals for the District of_ Columbia Circuit, to whom the Tribunal's rate adjustment decision has been appealed. The Office reiterated its hope that issues regarding interpretati of the Tribunal's new royalty rates would be brought to the attention of the Court, and that the Court would provide guidance. As stated in its Notice of Inquiry, and recalled in its opinion letter, the Copyright Office does not intend to take any steps to implement the October 20, 1982 rate adjustment pending a final decision by the Court of Appeals: the Office will bowever, accept royalty payments at the levels set by the October 20, 1982 rate determination, and will examine the Statements of Account at an appropriate time. Although the Copyright Office observed in its letter that it understands the expressed wish of cable systems for some guidance regarding the 2.75% rate adjustment, to give the guidance requested at this juncture would require the Copyright Office to interpret the rules of another governmental body at a time when those rules are under appeal in the courts, and before the Office is called upon to take any steps to carr out its responsibilities in collecting royalties due under the CRTs October 20, 1982 rate adjustment. Its response was accordingly limited and is subject to reexamination after a final decision by the Court of Appeals. At that time. the Copyright Office will again consider |