(c) Ephemeral RecordingsSection 402 of the DMCA expands the rights under Section 112 of the copyright statute
of broadcast radio or television stations licensed by the FCC to make ephemeral recordings of
material transmitted via analog broadcasts to include recordings of a performance of a sound
recording in digital format on a non-subscription basis. This expansion of the ephemeral
recording right was made necessary by the Digital Performance Right in Sound Recordings Act
of 1995, which granted sound recording copyright owners the exclusive right to publicly perform
their works by means of digital audio transmissions.
Section 402 responds to Congress’ concern, expressed in the Conference Report, that if
use of copy protection technologies becomes widespread, a transmitting organization might be
prevented from engaging in its traditional activities of assembling transmission programs and
making ephemeral recordings permitted by Section 112 of the copyright statute. Accordingly,
Section 402 provides that where a transmitting organization entitled to make an ephemeral
recording is prevented from making such recording by the application by the copyright owner of
a technical measure that prevents reproduction of the work, the copyright owner must make
available to the transmitting organization the necessary means for making the recording, if it
technologically feasible and economically reasonable to do so. If the copyright owner fails to do
so in a timely manner, then the transmitting organization is granted an exemption from liability
under the provisions of the DMCA that would otherwise prohibit the transmitting organization
from circumventing the technical measure.
(d) Statutory Licenses With Respect to Performances of Sound
Recordings
Section 405 of the DMCA contains provisions relating to statutory compulsory licenses
with respect to performances of sound recordings, including digital audio transmissions, and sets
up procedures for voluntary negotiation proceedings to determine reasonable terms and rates of
royalty payments for public performances of sound recordings. According to the Conference
industries that rely on intellectual property; (2) Advise the President, through the Secretary of Commerce, on
national and certain international issues relating to intellectual property policy, including issues in the areas of
patents, trademarks, and copyrights; (3) Advise Federal departments and agencies on matters of intellectual
property protection in other countries; (4) Provide guidance, as appropriate, with respect to proposals by
agencies to assist foreign governments and international intergovernmental organizations on matters of
intellectual property protection; (5) Conduct programs and studies related to the effectiveness of intellectual
property protection throughout the world; (6) Advise the Secretary of Commerce on programs and studies
relating to intellectual property policy that are conducted, or authorized to be conducted, cooperatively with
foreign patent and trademark offices and international intergovernmental organizations; and (7) In coordination
with the Department of State, conduct programs and studies cooperatively with foreign intellectual property
offices and international intergovernmental organizations.
The effect of this provision would have been to vest responsibility for public policy issues relating to copyright
(as well as trademarks and patents) in the new position, relegating the Copyright Office to a largely
administrative role primarily related to registration of copyrights. The Copyright Office was obviously opposed
to this, and appears to have been the victor of the skirmish, for Section 401 makes clear that responsibility for
public policy issues relating to copyright lies with the Copyright Office, led by the Register of Copyrights.