| CARP Recommends Rates and
Terms for Webcasting |
2/20. The Copyright
Arbitration Royalty Panel (CARP) released its report
[1 page in PDF] recommending rates, and its report
[29 pages in PDF] recommending terms, for the statutory
license for eligible nonsubscription services to perform sound
recordings publicly by means of digital audio transmissions,
also known as webcasting, pursuant to 17 U.S.C.
§ 114, and to make ephemeral recordings of sound
recordings for use of sound recordings under the statutory
license set forth in 17 U.S.C.
§ 112.
The CARP recommended that both webcasters and commercial
broadcasters pay a performance fee of 0.07˘ per performance,
and 9% of performance fees due, for simultaneous Internet
retransmissions of over the air AM or FM radio broadcasts. It
recommended that the performance fee be 0.14˘ per performance
and 9% of performance fees due for all other Internet
transmissions.
It further recommended that non commercial broadcasters pay a
performance fee of 0.02˘ per performance for simultaneous
Internet retransmissions of over the air AM or FM radio
broadcasts, and 0.05˘ for other Internet transmissions,
including up to two side channels of programming consistent
with the public broadcasting mission of the station.
Hillary Rosen, P/CEO of the Recording
Industry Association of America (RIAA), stated in a release
that "We would have preferred a higher rate. But in
setting a rate that is about 10 times that proposed by the
webcasters, the panel clearly concluded that the webcasters'
proposal was unreasonably low and not credible. It is apparent
to us, as it was to the Panel, that webcasters and
broadcasters of every size will be able to afford these rates
and build businesses on the Internet".
Jonathan Potter, Executive Director of the Digital Media Association
(DiMA), stated in a release
that "We are extremely disappointed, however, that the
Panel's proposed rate is not significantly lower, as a lower
rate would more accurately reflect the marketplace for music
performance rights and the business environment of the webcast
industry. We believe that the Digital Millennium Copyright Act
webcast sound recording statutory license reflected Congress's
effort to ensure fair compensation for creators and a
reasonable and competitive business environment for webcasters.
America deserves an equitable royalty formula so that both
creators and consumers can continue to benefit from the
advantages of Internet based broadcasting and the innovation
that continues to be developed by DiMA companies. ...
Webcasters will study the panel's decision further, and
provide analysis and recommendations to the Copyright Office
for consideration during that Office's statutory review
period."
The Copyright Office
stated that "The CARP report will be reviewed by the
Copyright Office, which will recommend to the Librarian of
Congress whether to accept, reject or modify the rates and
terms set forth in the report. The Librarian must accept or
reject the report no later than May 21, 2002." |
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| House Commerce Committee
Members Write FCC Re Wireless Number Portability |
2/14. Rep. Billy
Tauzin (R-LA), Chairman of the House Commerce Committee,
Rep. John Dingell
(D-MI), the ranking Democrat on the Committee, and others,
wrote a letter to Federal
Communications Commission (FCC) Chairman Michael Powell
regarding wireless number portability.
They wrote that "wireless carriers are in the process of
making hardware and software changes to their networks so that
these networks will be in compliance with the Commission's
rules regarding E-911 service, the Communications Assistance
for Law Enforcement Act (CALEA), and thousand block number
pooling. Implementation of these core Commission priorities
should occur as quickly as possible. The Commission is
currently faced with a decision concerning whether wireless
carriers should also be required to implement wireless number
portability by the same deadline that carriers are required to
begin thousand block pooling. We believe that it is not
prudent for the Commission to require wireless carriers to
comply with thousand block pooling and number portability
simultaneously. A requirement that pooling and local number
portability be deployed simultaneously raises significant
network reliability and integrity issues. The local number
portability mandate for wireless carriers should be delayed
while number pooling implementation occurs on schedule."
The letter was also signed by Rep. Fred Upton (R-MI),
Chairman of the Subcommittee on Telecommunications and the
Internet, and Rep.
Rick Boucher (D-VA), the ranking Democrat on the
Subcommittee, and by 28 other members of the full Committee. |
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| Rep. Goodlatte Criticizes
Russia on IPR Enforcement |
2/20. Rep. Bob
Goodlatte (R-VA), who traveled to Moscow with a
Congressional delegation, criticized Russia's record on
enforcement of intellectual property rights. He stated that
"Protecting valuable copyrighted work is vitally
important for the growth of the Internet and the global
electronic marketplace. ... In the past five years, it is
estimated that the copyright industries have lost over $5
billion due to piracy in Russia. The Internet will not reach
its full potential until creative people feel that their works
will be fully protected when they put them on the
Internet."
He continued that "Russia has made progress in adopting
laws that would protect copyrighted works, by they can't just
talk the talk. They have to walk to walk by enforcing those
laws and cracking down on the production and sale of pirated
works, both online and offline ... It is in Russia's interest
to promote respect for intellectual property rights and
strongly prosecute pirates. This is a nation with many
creative and talented people in the arts and sciences whose
value to their country's economy will grow if their creativity
is protected through enforcement of intellectual property
laws". |
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| EC Proposes Directive on
Patents of Computer Implemented Inventions |
2/20. The European Commission released a proposal for a
Directive on patents of computer implemented inventions. See, document
titled "Patents: Commission proposes rules for inventions
using software" and document
titled "Proposal for a Directive on the patentability of
computer implemented inventions -- frequently asked
questions".
The proposal states that inventions "whose operation
involves the use of a computer program and which make a
``technical contribution´´ -- in other words which
contribute to the ``state of the art´´ in the technical
field concerned -- would be eligible for patents. Computer
programs as such would not be eligible for a patent under the
proposal. Nor would business methods that employ existing
technological ideas and apply them to, for example,
e-commerce. These would continue where appropriate to be
covered by copyright law or the law of confidentiality."
The proposal elaborates that it "takes as its basis the
concept of ``technical contribution´´ as an essential
requirement of any patentable invention. ... It implies that a
computer implemented invention which makes a ``technical
contribution´´ to the state of the art, which would not be
obvious to a person of normal skill in the field concerned, is
more than just a computer program ``as such´´ and can
therefore be patented.
The proposal continues that "The requirement for a
``technical contribution´´ is fully consistent with the European
Patent Convention and the EU's wider international
obligations". It also states that "it would put
beyond doubt that creations in which the innovative element is
not technical in nature, that is to say which make no
technical contribution, cannot be patented. The proposal thus
addresses concerns that EU patent law might in future be
extended to cover fields of human endeavour which have up to
now been excluded, in particular business methods and
mathematical entities or logical constructs having no relation
to the physical world."
Internal Market Commissioner Frits
Bolkestein (Netherlands) stated that "European
industry needs a legal environment that encourages innovation
without stifling competition. We need certainty over what can,
and cannot, be patented".
He added that "The proposed Directive would provide this
certainty by making the conditions for patentability of
computer implemented inventions clear and uniform. Current law
on this question was drafted in the early 1970s when there was
no inkling of what was to come in the shape of modern
computers and networks, not to mention the emergence of a
software industry worth billions of euros. The courts have
done their best to develop the law in response to the changing
environment, but there is now no alternative to legislation at
European level to prevent potentially divergent
interpretations by the courts." |
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| CompTel Seeks Hearing on
FCC NPRM on Classification of Services |
2/20. Russell Frisby, President of CompTel, wrote a letter to Sen. Ernest Hollings
(D-SC), Chairman of the Senate Commerce
Committee, requesting a hearing on the Federal Communications Commission's
(FCC) Notice of Proposed Rulemaking (NPRM) regarding
classification of services.
The FCC held a meeting on February 14 at which it announced a
NPRM regarding classification of services. It then issued a press
release that is associated with this NPRM. This release
states that this NPRM "is poised to resolve outstanding
issues regarding the classification of telephone based
broadband Internet access services and the regulatory
implications of that classification". It further states
that the "the FCC tentatively concluded the wireline
broadband Internet access services -- whether provided over a
third party's facilities or self-provisioned facilities -- are
information services, with a telecommunications component,
rather than telecommunications services. Information services
include such services as voice mail and e-mail, which ride
over telecommunications facilities." This is CC Docket
02-33.
Frisby wrote that such a finding "will simply serve to
benefit the very largest carriers at the expense of
competition and consumers." See, CompTel
release. |
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| More News |
2/20. World Trade Organization
(WTO) Director General Mike Moore gave a speech
titled "Making Globalization Work" to the
International Confederation of Free Trade Unions (ICFTU) in
Geneva, Switzerland.
2/20. President Bush and South Korean President Kim Dae-Jung
held a joint press conference. Kim Dae-Jung stated that
"President Bush and I concurred that continued expansion
and progress of bilateral, economic and trade relations are in
the interest of both our countries. Furthermore, we also
agreed to further deepen cooperative relations at the
multilateral level, such as the WTO -- development
agenda." Bush stated that "It's also vital that we
continue to trade together. ... we also discussed ways to
make sure our trade was more open and fair to both
sides." See, transcript.
2/20. The U.S.
Court of Appeals (6thCir) issued its opinion
in USA
v. Yang, a criminal case involving attempted theft
of a trade secret and conspiracy to commit theft of a
trade secret in violation of the Economic Espionage Act of
1996 (EEA), 18
U.S.C. § 1832.
2/20. The Federal Trade
Commission (FTC) announced that it filed a civil complaint
[PDF] in U.S. District Court (SDFl) against Stock Value 1,
Inc. and its President, Deborah Jenkins, alleging violation of
the Federal Trade Commission Act in connection with the
marketing of "products that
purportedly block electromagnetic energy emitted from cellular
and cordless telephones". The FTC alleges that
defendants engaged in deceptive acts or practices in or
affecting commerce in violation of Section 5(a) of the FTC
Act, 15
U.S.C. § 45(a), and false advertising in violation of
Section 12(a) of the FTC Act, 15 U.S.C.
§ 52(a). The FTC seeks an injunction. The FTC also filed
a similar civil complaint
[PDF] in U.S. District Court (EDCal) against Comstar
Communications, Inc. and Randall Carasco. See also, FTC
release.
2/20. The U.S. Patent and
Trademark Office (USPTO) published a copy of the February
issue of USPTO Today [PDF] in its web site. |
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| Thursday, Feb 21 |
The House and Senate are in recess this week.
8:30 AM. Treasury Secretary Paul O'Neill will speak at a U.S.
Chamber's Policy Insiders breakfast regarding the
administration's economic and budget priorities. The price to
attend is $60 at the door for members and $75 for non-members.
For more information, call 202 463-5600. Location: U.S.
Chamber of Commerce, 1615 H Street, NW.
9:30 AM. The U.S.
Court of Appeals (DCCir) will hear oral argument in Unity
Broadcasting v. FCC, No. 01-1148. Judges Henderson,
Randolph and Rogers will preside. Location: 333 Constitution
Ave. NW.
12:15 PM. The Federal
Communications Bar Association's (FCBA) Young Lawyers
Committee will hold a brown bag lunch. RSVP to Yaron Dori at ydori @hhlaw.com. Location: Hogan & Hartson, 555 13th
Street, NW, Room 13E-407 (use East Tower elevators). |
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| Monday, Feb 25 |
The Senate will reconvene at 12:00 NOON following its
Presidents Day recess. The House will not be in session.
Deadline to submit oppositions and responses to the FCC's Cable Services Bureau
regarding the applications of Hughes Electronics Corporation
and EchoStar Communications Corporation to the FCC requesting
consent to the transfer of control of licenses and
authorizations involved in the EchoStar DirecTV merger. See,
FCC notice
[MS Word]. This is CS Docket No. 01-348.
4:00 PM. Deadline for Members of the House to submit to the House Rules Committee
proposed amendments to HR
1542, the Tauzin Dingell bill. See, Cong. Rec., Feb. 7,
2002, at H217.
6:30 PM. The National Press
Club will host a panel discussion on distance learning.
The topics to be discussed include copyright issues. The
speakers will be Deborah Everhart (Blackboard.com) and Martin
Irvine (Georgetown University). Coffee reception starts at
6:30 PM. The program starts at 7:15 PM, and is scheduled to
finish at 9:00 PM. Location: NPC, 529 14th St. NW, 13th Floor. |
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| Tuesday, Feb 26 |
The House will reconvene at 2:00 PM following its Presidents
Day recess.
12:15 PM. The FCBA's
Cable Practice Committee and the NCTA
will host a luncheon. The speaker will be Sarah Whitesell,
Associate Bureau Chief of the FCC's Cable Services Bureau. The
price to attend is $15. RSVP to Wendy Parish at wendy @fcba.org. Reservations
and cancellations must be received by Friday, February 22.
Location: 1724 Mass. Ave., NW.
Deadline to submit reply comments to the FCC in the
matter of Ambient's application for a determination that it is
an exempt telecommunications company. It is an electric power
company that also provides broadband Internet access and
related information services over power lines to electrical
outlets in residences. See, FCC
release [PDF]. |
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| Wednesday, Feb 27 |
Day one of a two day conference titled "Combatting
Cyber Attacks on Your Corporate Data". See, conference information
page. Location: Omni Shoreham Hotel.
10:00 AM. The Senate
Judiciary Committee will hold a hearing to examine sovereign
immunity and the protection of intellectual property. Sen. Patrick Leahy (D-VT)
will preside. Location: Room 226, Dirksen Building.
6:00 - 8:00 PM. The FCBA will
host a Continuing Legal Education (CLE) seminar titled
"Unlicensed Operation Under FCC Rules". The price to
attend is $60 for FCBA members, $50 for government and law
student members, and $80 for non-members. Registrations and
cancellations due by 12:00 NOON on Tuesday, February 26. To
register, contact Wendy Parish at wendy @fcba.org. Location:
Capital Hilton Hotel, 16th & K Streets, NW.
Extended deadline to submit reply comments to the Copyright Office in
response to its March 9, 2001, Notice
of Inquiry concerning the interpretation and application
of the copyright laws to certain kinds of digital
transmissions of prerecorded musical works in light of an
agreement between the RIAA,
the NMPA, and
The Harry Fox Agency (HFA). See, 17
U.S.C. § 115. See, notice
in Federal Register. This is Docket No. RM 2000-7B. |
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| People and Appointments |
| 2/20. The Federal Election
Commission (FEC) named Rhonda Vosdingh Associate
General Counsel for Enforcement in the FEC's Office of General
Counsel (OGC). She has been with the FEC since 1994. See, FEC release. |
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