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INTELLECTUAL PROPERTY RIGHTS
NATIONAL LEGISLATION - USA
Copyright Laws and Regulations
Regulations: Title 37, Chapters I (Subchapter C) and II, Code of Federal
37 C.F.R. § 251.4 Arbitrator lists: Objections.
(a) In the case of a rate adjustment proceeding, any party to a proceeding may, during the 45-day period specified in § 251.45(b)(2)(i), file an objection with the Librarian of Congress to one or more of the persons contained on the arbitrator list for that proceeding. Such objection shall plainly state the grounds and reasons for each person claimed to be objectionable.
(b) In the case of a royalty distribution proceeding, any party to the proceeding may, during the 45-day period specified in § 251.45(b)(2)(i), file an objection with the Librarian of Congress to one or more of the persons contained on the arbitrator list for the proceeding. Such objection shall plainly state the grounds and reasons for each person claimed to be objectionable.
[59 FR 23982, May 9, 1994; 59 FR 63040, Dec. 7, 1994]
37 C.F.R. § 251.5 Qualifications of the arbitrators.
In order to serve as an arbitrator to a Copyright Arbitration Royalty Panel, a person must, at a minimum, have the following qualifications:
(a) Admitted to the practice of law in any state, territory, trust territory, or possession of the United States.
(b) Ten or more years of legal practice.
(c) Experience in conducting arbitration proceedings and facilitating the resolution and settlement of disputes.
[59 FR 23982, May 9, 1994; 61 FR 63715, 63717, Dec. 2, 1996]
37 C.F.R. § 251.6 Composition and selection of Copyright Arbitration Royalty Panels.
(a) Within ten days after publication of a notice in the Federal Register initiating arbitration proceedings under this subchapter, the Librarian of Congress will, upon recommendation of the Register of Copyrights, select two arbitrators from the arbitrator list for that calendar year.
(b) The two arbitrators so selected shall, within ten days of their selection, choose a third arbitrator from the same arbitrator list. The third arbitrator shall serve as the chairperson of the panel during the course of the proceedings.
(c) If the two arbitrators fail to agree upon the selection of the third, the Librarian will promptly select the third arbitrator from the same arbitrator list.
(d) The third arbitrator so chosen shall serve as the chairperson of the panel during the course of the proceeding. In all matters, procedural or substantive, the chairperson shall act according to the majority wishes of the panel.
(e) Two arbitrators shall constitute a quorum necessary to the determination of any proceeding.
(f) If, before the commencement of hearings in a proceeding, one or more of the arbitrators is unable to continue service on the CARP, the Librarian will suspend the proceeding as provided by § 251.8, and will inaugurate a procedure to bring the CARP up to the full complement of three arbitrators. Where one or two vacancies exist, and either or both of the vacant seats were previously occupied by arbitrators selected by the Librarian, the Librarian will select the necessary replacements from the current arbitrator list. If there is one vacancy, and it was previously occupied by the chairperson, the two remaining arbitrators shall select the replacement from the arbitrator list, and the person chosen shall serve as chairperson. If there are two vacant seats, and one of them was previously occupied by the chairperson, the Librarian will select one replacement from the arbitrator list, and that person shall join with the remaining arbitrator to choose the replacement, who shall serve as chairperson.
(g) After hearings have commenced, the Librarian will not suspend the proceedings or inaugurate a replacement procedure unless it is necessary in order for the CARP to have a quorum. If the hearing is underway and two arbitrators are unable to continue service, or if the hearing had been proceeding with two arbitrators and one of them is no longer able to serve, the Librarian will suspend the proceedings under § 251.8 and seek the unanimous written agreement of the parties to the proceeding for the Librarian to select a replacement. In the absence of such an agreement, the Librarian will terminate the proceeding. If such agreement is obtained, the Librarian will select one arbitrator from the arbitrator list.
(h) If, after hearings have commenced, the chairperson of the CARP is no longer able to serve, the Librarian will ask the two remaining arbitrators, or the one remaining arbitrator and the newly-selected arbitrator, to agree between themselves which of them will serve as chairperson. In the absence of such an agreement, the Librarian will terminate the proceeding.
[59 FR 23982, May 9, 1994; 63 FR 30634, 30635, June 5, 1998]
37 C.F.R. § 251.7 Actions of Copyright Arbitration Royalty Panels.
Any action of a Copyright Arbitration Royalty Panel requiring publication in the Federal Register according to 17 U.S.C. or the rules and regulations of this subchapter shall be published under the authority of the Librarian of Congress and the Register of Copyrights. Under no circumstances shall a CARP engage in rulemaking designed to amend, supplement, or supersede any of the rules and regulations of this subchapter, or seek to have any such action published in the Federal Register.
[59 FR 23982, May 9, 1994]
37 C.F.R. § 251.8 Suspension of proceedings.
(a) Where it becomes necessary to replace a selected arbitrator under § 251.6 or to remove and replace a selected arbitrator under subpart D of this part, the Librarian will order a suspension of any ongoing hearing or other proceeding by notice in writing to all parties. Immediately after issuing the order of suspension, and without delay, the Librarian will take the necessary steps to replace the arbitrator or arbitrators, and upon such replacement will issue an order, by notice in writing to all parties, resuming the proceeding from the time and point at which it was suspended.
(b) Where, for any other reason, such as a serious medical or family emergency affecting an arbitrator, the Librarian considers a suspension of a proceeding necessary and fully justified, he may, with the unanimous written consent of all parties to the proceeding, order a suspension of the proceeding for a stated period not to exceed one month.
(c) Any suspension under this section shall result in a complete cessation of all aspects of the proceeding, including the running of any period provided by statute for the completion of the proceeding.
[59 FR 23982, May 9, 1994]
37 C.F.R. § 251.11 Open meetings.
(a) All meetings of a Copyright Arbitration Royalty Panel shall be open to the public, with the exception of meetings that are listed in § 251.13.
(b) At the beginning of each proceeding, the CARP shall develop the original schedule of the proceeding which shall be published in the Federal Register at least seven calendar days in advance of the first meeting. Such announcement shall state the times, dates, and place of the meetings, the testimony to be heard, whether any of the meetings, or any portion of a meeting, is to be closed, and, if so, which ones, and the name and telephone number of the person to contact for further information.
(c) If changes are made to the original schedule, they will be announced in open meeting and issued as orders to the parties participating in the proceeding, and the changes will be noted in the docket file of the proceeding.
In addition, the contact person for the proceeding shall make any additional efforts to publicize the change as are practicable.
(d) If it is decided that the publication of the original schedule must be made on shorter notice than seven days, that decision must be made by a recorded vote of the panel and included in the announcement.
[59 FR 23983, May 9, 1994; 59 FR 63040, Dec. 7, 1994]
37 C.F.R. § 251.12 Conduct of open meetings.
Meetings of a Copyright Arbitration Royalty Panel will be conducted in a manner to ensure the greatest degree of openness possible. Reasonable access for the public will be provided at all public sessions. Any person may take photographs, and make audio or video recordings of the proceedings, so long as the panel is informed in advance. The chairperson has the discretion to regulate the time, place, and manner of the taking of photographs or the audio or video recording of the proceedings to ensure the order and decorum of the proceedings. The right of the public to be present does not include the right to participate or make comments.
[59 FR 23983, May 9, 1994]
37 C.F.R. § 251.13 Closed meetings.
In the following circumstances, a Copyright Arbitration Royalty Panel may close meetings, or any portion of a meeting, or withhold information from the public:
(a) If the matter to be discussed has been specifically authorized to be kept secret by Executive Order, in the interests of national defense or foreign policy; or
(b) If the matter relates solely to the internal practices of a Copyright Arbitration Royalty Panel; or
(c) If the matter has been specifically exempted from disclosure by statute (other than 5 U.S.C. 552) and there is no discretion on the issue; or
(d) If the matter involves privileged or confidential trade secrets or financial information; or
(e) If the result might be to accuse any person of a crime or formally censure him or her; or
(f) If there would be a clearly unwarranted invasion of personal privacy; or
(g) If there would be disclosure of investigatory records compiled for law enforcement, or information that if written would be contained in such records, and to the extent disclosure would:
(1) Interfere with enforcement proceedings; or
(2) Deprive a person of the right to a fair trial or impartial adjudication; or
(3) Constitute an unwarranted invasion of personal privacy; or
(4) Disclose the identity of a confidential source or, in the case of a criminal investigation or a national security intelligence investigation, disclose confidential information furnished only by a confidential source; or
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or safety of law enforcement personnel.
(h) If premature disclosure of the information would frustrate a Copyright Arbitration Royalty Panel's action, unless the panel has already disclosed the concept or nature of the proposed action, or is required by law to make disclosure before taking final action; or
(i) If the matter concerns a CARP's participation in a civil action or proceeding or in an action in a foreign court or international tribunal, or an arbitration, or a particular case of formal agency adjudication pursuant to 5 U.S.C. 554, or otherwise involving a determination on the record after opportunity for a hearing; or
(j) If a motion or objection has been raised in an open meeting and the panel determines that it is in the best interests of the proceeding to deliberate on such motion or objection in closed session.
[59 FR 23983, May 9, 1994; 59 FR 63040, Dec. 7, 1994, as corrected at 60 FR 8197, Feb. 13, 1995]
37 C.F.R. § 251.14 Procedure for closed meetings.
(a) Meetings may be closed, or information withheld from the public, only by a recorded vote of a majority of arbitrators of a Copyright Arbitration Royalty Panel. Each question, either to close a meeting or to withhold information, must be voted on separately, unless a series of meetings is involved, in which case the CARP may vote to keep the discussions closed for 30 days, starting from the first meetings. If the CARP feels that information about a closed meeting must be withheld, the decision to do so must also be the subject of a recorded vote.
(b) Before a discussion to close a meeting or withhold information, the chairperson of a CARP must certify that such an action is permissible, and the chairperson shall cite the appropriate exemption under § 251.13. This certification shall be included in the announcement of the meeting and be maintained as part of the record of proceedings of that CARP.
(c) Following such a vote, the following information shall be published in the Federal Register as soon as possible:
(1) The vote of each arbitrator; and
(2) The appropriate exemption under § 251.13; and
(3) A list of all persons expected to attend the meeting and their affiliation.
(d) The procedure for closed meetings in this section and in § 251.15 shall not apply to the internal deliberations of arbitrators carried out in furtherance of their duties and obligations under this chapter.
[59 FR 23983, May 9, 1994; 59 FR 63040, Dec. 7, 1994]
37 C.F.R. § 251.15 Transcripts of closed meetings.
(a) All meetings closed to the public shall be subject either to a complete transcript or, in the case of § 251.13(h) and at the discretion of the Copyright Arbitration Royalty Panel, detailed minutes. Detailed minutes shall describe all matters discussed, identify all documents considered, summarize action taken as well as the reasons for it, and record all roll call votes as well as any views expressed.
(b) Such transcripts or minutes shall be kept by the Copyright Office for at least two years, or for at least one year after the conclusion of the proceedings, whichever is later. Any portion of transcripts of meetings which the chairperson of a CARP does not feel is exempt from disclosure under § 251.13 will ordinarily be available to the public within 20 working days of the meeting. Transcripts or minutes of closed meetings will be reviewed by the chairperson at the end of the proceedings of the panel and, if at that time the chairperson determines that they should be disclosed, he or she will resubmit the question to the CARP to gain authorization for their disclosure.
[59 FR 23983, May 9, 1994]
37 C.F.R. § 251.16 Requests to open or close meetings.
(a) Any person may request a Copyright Arbitration Royalty Panel to open or close a meeting or disclose or withhold information. Such request must be captioned “Request to Open” or “Request to Close” a meeting on a specified date concerning a specific subject. The person making the request must state his or her reasons, and include his or her name, address, and telephone number.
(b) In the case of a request to open a meeting that a CARP has previously voted closed, the panel must receive the request within 3 working days of the meeting's announcement. Otherwise the request will not be heeded, and the person making the request will be so notified. An original and three copies of the request must be submitted.
(c) For a CARP to act on a request to open or close a meeting, the question must be brought to a vote before the panel. If the request is granted, an amended meeting announcement will be issued and the person making the request notified. If a vote is not taken, or if after a vote the request is denied, said person will also be notified promptly.
[59 FR 23984, May 9, 1994]
37 C.F.R. § 251.21 Public records.
(a) All official determinations of a Copyright Arbitration Royalty Panel will be published in the Federal Register in accordance with § 251.7 and include the relevant facts and reasons for those determinations.
(b) All records of a CARP, and all records of the Librarian of Congress assembled and/or created under 17 U.S.C. 801 and 802, are available for inspection and copying at the address provided in § 251.1 with the exception of:
(1) Records that relate solely to the internal personnel rules and practices of the Copyright Office or the Library of Congress;
(2) Records exempted by statute from disclosure;
(3) Interoffice memoranda or correspondence not available by law except to a party in litigation with a CARP, the Copyright Office, or the Library of Congress;
(4) Personnel, medical, or similar files whose disclosure would be an invasion of personal privacy;
(5) Communications among arbitrators of a CARP concerning the drafting of decisions, opinions, reports, and findings on any CARP matter or proceeding;
(6) Communications among the Librarian of Congress and staff of the Copyright Office or Library of Congress concerning decisions, opinions, reports, selection of arbitrators, or findings on any matter or proceeding conducted under 17 U.S.C. chapter 8;
(7) Offers of settlement that have not been accepted, unless they have been made public by the offer or;
(8) Records not herein listed but which may be withheld as “exempted” if a CARP or the Librarian of Congress finds compelling reasons for such action.
[59 FR 23984, May 9, 1994]
37 C.F.R. § 251.22 Public access.
(a) Location of Records. All of the following records relating to rate adjustment and distribution proceedings under this subchapter shall be maintained at the Copyright Office:
(1) Records required to be filed with the Copyright Office; or
(2) Records submitted to or produced by the Copyright Office or Library of Congress under 17 U.S.C. 801 and 802, or
(3) Records submitted to or produced by a Copyright Arbitration Royalty Panel during the course of a concluded proceeding. In the case of records submitted to or produced by a CARP that is currently conducting a proceeding, such records shall be maintained by the chairperson of that panel at the location of the hearing or at a location specified by the panel. Upon conclusion of the proceeding, all records shall be delivered by the chairperson to the Copyright Office.
(b) Requesting information. Requests for information or access to records described in § 251.21 shall be directed to the Copyright Office at the address listed in § 251.1. No requests shall be directed to or accepted by a Copyright Arbitration Royalty Panel. In the case of records in the possession of a CARP, the Copyright Office shall make arrangements with the panel for access and copying by the person making the request.
(c) Fees. Fees for photocopies of CARP or Copyright Office records are the applicable Office charge. Fees for searching for records, certification of documents, and other costs incurred are as provided in 17 U.S.C. 705, 708.
[59 FR 23984, May 9, 1994; 59 FR 63040, Dec. 7, 1994]
37 C.F.R. § 251.23 FOIA and Privacy Act.
Freedom of Information Act and Privacy Act provisions applicable to CARP proceedings can be found in parts 203 and 204 of subchapter A of this chapter.
[59 FR 23984, May 9, 1994]
37 C.F.R. § 251.30 Basic obligations of arbitrators.
(a) Definitions. For purposes of these regulations, the following terms shall have the meanings given in this subsection:
(1) A “selected arbitrator” is a person named by the Librarian of Congress, or by other selected arbitrators, for service on a particular CARP, in accordance with § 251.6 of these regulations;
(2) A “listed arbitrator” is a person named in the “arbitration list” published in accordance with § 251.3 of these regulations.
(b) General principles applicable to arbitrators. Selected arbitrators are persons acting on behalf of the United States, and the following general principles apply to them. Where a situation is not covered by standards set forth specifically in this subpart, selected arbitrators shall apply these general principles in all cases in determining whether their conduct is proper. Listed arbitrators shall apply these principles where applicable.
(1) Arbitrators are engaged in a matter of trust that requires them to place ethical and legal principles above private gain.
(2) Arbitrators shall not hold financial interests that conflict with the conscientious performance of their service.
(3) Arbitrators shall not engage in financial transactions using nonpublic information or allow the improper use of such information to further any private interest.
(4) Selected arbitrators shall not solicit or accept any gift or other item of monetary value from any person or entity whose interests may be affected by the arbitrators' decisions. Listed arbitrators may accept gifts of nominal value or gifts from friends and family as specified in § 251.34(b).
(5) Arbitrators shall put forth their honest efforts in the performance of their service.
(6) Arbitrators shall act impartially and not give preferential treatment to any individual, organization, or entity whose interests may be affected by the arbitrators' decisions.
(7) Arbitrators shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflicts with the performance of their service.
(8) Arbitrators shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this subpart.
(9) Arbitrators shall maintain order and decorum in the proceedings, be patient, dignified, and courteous to the parties, witnesses, and their representatives, and dispose promptly the business before them.
[59 FR 23984, May 9, 1994; 63 FR 30634, 30635, June 5, 1998]
37 C.F.R. § 251.31 Financial interests.
(a) No selected arbitrator shall have a direct or indirect financial interest --
(1) in the case of a distribution proceeding, in any claimant to the proceeding whether or not in a voluntary settlement agreement, or any copyright owner who receives royalties from such claimants because of their representation;
(2) in the case of a rate adjustment proceeding, in any individual, organization or entity that would be affected by the outcome of the proceeding.
(b) “Direct or indirect financial interest” shall include: being employed by, being a consultant to, being a representative or agent for, being a member or affiliate of, being a partner of, holding any office in, owning any stocks, bonds, or other securities, or deriving any income from the prohibited entity.
(c) “Direct or indirect financial interest” shall not include-
(1) owning shares in any stock or bond mutual fund or blind trust which might have an interest in a prohibited entity but whose decisions to invest or sell is not under the control of the selected arbitrator, or
(2) receiving any post-employment benefit such as health insurance or a pension so long as the benefit would not be affected by the outcome of the proceeding.
(d) For the purposes of this section, the financial interests of the following persons will serve to disqualify the selected arbitrator to the same extent as if they were the arbitrator's own interests:
(1) The arbitrator's spouse;
(2) The arbitrator's minor child;
(3) The arbitrator's general partner, except that the personal financial holdings, including stock and bond investments, of such partner will not serve to disqualify the selected arbitrator; or
(4) An organization or entity for which the arbitrator serves as officer, director, trustee, general partner or employee.
[59 FR 23985, May 9, 1994; 59 FR 63040, Dec. 7, 1994]
37 C.F.R. § 251.32 Financial disclosure statement.
(a) Within 45 days of their nomination, each nominated arbitrator shall file with the Librarian of Congress a confidential financial disclosure statement as provided by the Library of Congress, which statement shall be reviewed by the Librarian and designated Library staff to determine what conflicts of interest, if any, exist according to § 251.31.
(b) If any conflicts do exist, the Librarian shall not choose that person for the proceeding for which he or she has the financial conflict, except --
(1) The listed arbitrator may divest himself or herself of the interest that caused the disqualification, and become qualified to serve; or
(2) The listed arbitrator may offer to disclose on the record the conflict of interest causing disqualification. In such instances:
(i) The Librarian shall publish a list detailing the conflicts of interest the listed arbitrators have offered to disclose, and any other matters which, although outside of the scope of the restrictions of § 251.31, nevertheless, in the view of the Librarian, raise sufficient concerns to warrant disclosure to the affected parties;
(ii) Such list shall be included in an order issued no later than the commencement of the 45-day precontroversy discovery period;
(iii) Such list shall contain the matters of concern, but shall not contain the names of the listed arbitrators.
(iv) Any party to the proceeding for which the listed arbitrator is being considered may interpose within the 45-day period described in § 251.45(b) an objection to that arbitrator being selected. If the objection is raised to a matter found to be within the scope of § 251.31, the objection will serve automatically to disqualify the arbitrator. If the objection is raised to a matter found to be outside the scope of § 251.31, the objection will be taken into account when the Librarian makes his or her selection, but will not serve automatically to disqualify the arbitrator.
(c) At such time as the two selected arbitrators choose a third arbitrator, they shall consult with the Librarian to determine if any conflicts of interest exist for the third arbitrator. If, in the opinion of the Librarian of Congress, any conflicts of interest do exist, the two selected arbitrators shall be asked to choose another arbitrator who has no conflict of interest.
(d) Within one week of the selection of the CARP, the three selected arbitrators shall file with the Librarian an updated confidential financial disclosure form or, if there are no changes in the arbitrator's financial interests, a statement to that effect. If any conflicts of interest are revealed on the updated form, the Librarian will suspend the proceeding and replace the selected arbitrator with another arbitrator from the arbitrator list in accordance with the provision of § 251.6.
(e) During the following periods of time, the selected arbitrators shall be obliged to inform the Librarian immediately of any change in their financial interests that would reasonably raise a conflict of interest --
(1) during the period beginning with the filing of the updated disclosure form or statement required by paragraph (d) of this section and ending with the submission of the panel's report to the Librarian, and
(2) if the same arbitrator or arbitrators are recalled to serve following a court-ordered remand, during the time the panel is reconvened.
(f) If the Librarian determines that an arbitrator has failed to give timely notice of a financial interest constituting a conflict of interest, or that the arbitrator in fact has a conflict of interest, the Librarian shall remove that arbitrator from the proceeding.
[59 FR 23985, May 9, 1994; 59 FR 63040, Dec. 7, 1994, as corrected at 60 FR 8197, Feb. 13, 1995; 61 FR 63715, 63717, Dec. 2, 1996; 63 FR 30634, 30635, June 5, 1998]
37 C.F.R. § 251.33 Ex parte communications.
(a) Communications with Librarian or Register. No person outside the Library of Congress shall engage in ex parte communication with the Librarian of Congress or the Register of Copyrights on the merit or status of any matter, procedural or substantive, relating to the distribution of royalty fees, the adjustment of royalty rates or the status of digital audio recording devices, at any time whatsoever. This prohibition shall not apply to statements concerning public policies related to royalty fee distribution and rate adjustment so long as they are unrelated to the merits of any particular proceeding.
(b) Selected arbitrators. No interested person shall engage in, or cause someone else to engage in, ex parte communications with the selected arbitrators in a proceeding for any reason whatsoever from the time of their selection to the time of the submission of their report to the Librarian, and, in the case of a remand, from the time of their reconvening to the time of their submission of their report to the Librarian. Incidental communications unrelated to any proceeding, such as an exchange of pleasantries, shall not be deemed to constitute an ex parte communication.
(c) Listed arbitrators. No interested person shall engage in, or cause someone else to engage in, ex parte communications with any person listed by the Librarian of Congress as qualified to serve as an arbitrator about the merits of any past, pending, or future proceeding relating to the distribution of royalty fees or the adjustment of royalty rates. This prohibition applies during any period when the individual appears on a current arbitrator list.
(d) Library and Copyright Office personnel. No person outside the Library of Congress (including the Copyright Office staff) shall engage in ex parte communications with any employee of the Library of Congress about the substantive merits of any past, pending, or future proceeding relating to the distribution of royalty fees or the adjustment of royalty rates. This prohibition does not apply to procedural inquiries such as scheduling, filing requirements, status requests, or requests for public information.
(e) Outside contacts. The Librarian of Congress, the Register of Copyrights, the selected arbitrators, the listed arbitrators, and the employees of the Library of Congress described in paragraphs (a) through (d) of this section, shall not initiate or continue the prohibited communications that apply to them.
(f) Responsibilities of recipients of communication.
(1) Whoever receives a prohibited communication shall immediately end it and place on the public record of the applicable proceeding: (i) all such written or recorded communications;
(ii) memoranda stating the substance of all such oral communications; and
(iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in paragraphs (f)(1) (i) and (ii) of this section.
(2) The materials described in this paragraph (f) shall not be considered part of the record for the purposes of decision unless introduced into evidence by one of the parties.
(g) Action by Librarian. When notice of a prohibited communication described in paragraphs (a) through (d) of this section has been placed in the record of a proceeding, either the Librarian of Congress or the CARP may require the party causing the prohibited communication to show cause why his or her claim or interest in the proceeding should not be dismissed, denied, or otherwise adversely affected.
[59 FR 23985, May 9, 1994; 59 FR 63040, 63041, Dec. 7, 1994, as corrected at 60 FR 8197, Feb. 13, 1995]
Continuation: 37 C.F.R.§ 251.34 Gifts and other things of monetary value.