37 C.F.R. Subpart D—Standards of Conduct
Title 37 - Patents, Trademarks, and Copyrights
(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 23981, May 9, 1994, as amended at 63 FR 30635, June 5, 1998] (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 23981, May 9, 1994, as amended at 59 FR 63040, Dec. 7, 1994] (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 23981, May 9, 1994, as amended at 59 FR 63040, Dec. 7, 1994; 60 FR 8197, Feb. 13, 1995; 61 FR 63717, Dec. 2, 1996; 63 FR 30635, June 5, 1998] (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 23981, May 9, 1994, as amended at 59 FR 63040, 63041, Dec. 7, 1994; 60 FR 8197, Feb. 13, 1995] (a) Selected arbitrators. From the time of selection to the time of the submission of the arbitration panel's report, whether during the initial proceeding or during a court-ordered remand, no selected arbitrator shall solicit or accept, directly or indirectly, any gift, gratuity, favor, travel, entertainment, service, loan, or any other thing of monetary value from a person or organization that has an interest that would be affected by the outcome of the proceeding, regardless of whether the offer was intended to affect the outcome of the proceeding. (b) Listed arbitrators. No listed arbitrator shall solicit or accept, directly or indirectly, any gift, gratuity, favor, travel, entertainment, service, loan, or any other thing of monetary value from a person or organization that has an interest in any proceeding for which the arbitrator might be selected, regardless of whether the offer was intended to affect the outcome of the proceeding, except— (1) A listed arbitrator may accept unsolicited gifts having an aggregate market value of $20 or less per occasion, as long as the aggregate market value of individual gifts received from any one source does not exceed $50 in a calendar year, or (2) A listed arbitrator may accept a gift given under circumstances in which it is clear that the gift is motivated by a family relationship or personal friendship rather than the potential of the listed arbitrator to decide a future proceeding. (c) A gift that is solicited or accepted indirectly includes a gift— (1) Given with the arbitrator's knowledge and acquiescence to the arbitrator's parent, sibling, spouse, child, or dependent relative because of that person's relationship to the arbitrator, or (2) Given to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the arbitrator. (a) From the time of selection to the time when all possibility of being selected to serve on a court-ordered remand is ended, no arbitrator shall— (1) Engage in any outside business or other activity that would cause a reasonable person to question the arbitrator's ability to render an impartial decision; (2) Accept any speaking engagement, whether paid or unpaid, related to the proceeding or sponsored by a party that would be affected by the outcome of the proceeding; or (3) Accept any honorarium, whether directly or indirectly paid, for any appearance, speech, or article related to the proceeding or offered by a party who would be affected by the outcome of the proceeding. (b) Honoraria indirectly paid include payments— (1) Given with the arbitrator's knowledge and acquiescence to the arbitrator's parent, sibling, spouse, child, or dependent relative because of that person's relationship to the arbitrator, or (2) Given to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the arbitrator. (a) The Librarian of Congress will not select any arbitrator who was employed at any time during the period of five years immediately preceding the date of that arbitrator's selection by any party to, or any person, organization or entity with a financial interest in, the proceeding for which he or she is being considered. However, a listed arbitrator may disclose on the record the past employment causing disqualification and may ask the parties to consider whether to allow him or her to serve in the proceeding, in which case any agreement by the parties to allow the listed arbitrator to serve shall be unanimous and shall be incorporated into the record of the proceeding. (b) No arbitrator may arrange for future employment with any party to, or any person, organization, or entity with a financial interest in, the proceeding in which he or she is serving. (c) For a period of three years from the date of submission of the arbitration panel's report to the Librarian, no arbitrator may enter into employment with any party to, or any person, organization, or entity with a financial interest in, the particular proceeding in which he or she served. (d) For purposes of this section, “employed” or “employment” means any business relationship involving the provision of personal services including, but not limited to, personal services as an officer, director, employee, agent, attorney, consultant, contractor, general partner or trustee, but does not include serving as an arbitrator, mediator, or neutral engaged in alternative dispute resolution. (a) Unless required by law, no arbitrator shall disclose in any manner any information contained in filings, pleadings, or evidence that the arbitration panel has ruled to be confidential in nature. (b) Unless required by law, no arbitrator shall disclose in any manner— (1) Intra-panel communications or communications between the Library of Congress and the panel intended to be confidential; (2) Draft interlocutory rulings or draft decisions; or (3) The CARP report before its submission to the Librarian of Congress. (c) No arbitrator shall engage in a financial transaction using nonpublic information, or allow the improper use of nonpublic information, to further his or her private interest or that of another, whether through advice or recommendation, or by knowing unauthorized disclosure. (a) Arbitrators are bound by the hourly or daily fee they proposed to the Librarian of Congress when their names were submitted to be listed under §251.3, and shall not bill in excess of their proposed charges. (b) Arbitrators shall not charge the parties any expense in addition to their hourly or daily charge, except, in the case of an arbitrator who resides outside the Washington, DC metropolitan area, for travel, lodging, and meals not to exceed the government rate. (c) When submitting their statement of costs to the parties under §251.54, arbitrators shall include a detailed account of their charges, including the work performed during each hour or day charged. (d) Except for support services provided by the Library of Congress, arbitrators shall perform their own work, including research, analysis of the record, and decision-writing. (e) At the time of selection, arbitrators shall sign an agreement stating that they will abide by all the terms therein, including all of the standards of conduct and billing restrictions specified in this subpart. Any arbitrator who does not sign the agreement will not be selected to serve. [59 FR 23981, May 9, 1994, as amended at 60 FR 8197, Feb. 13, 1995] In addition to those provided above, remedies for the violation of the standards of conduct of this section may include, but are not limited to, the following— (a) In the case of a selected arbitrator, (1) Removal of the arbitrator from the proceeding; (2) Permanent removal of the arbitrator's name from the current and any future list of available arbitrators published by the Librarian; (3) Referral of the matter to the bar of which the arbitrator is a member. (b) In the case of a listed but not selected arbitrator— (1) Permanent removal of the arbitrator's name from the current and any future list of available arbitrators published by the Librarian; (2) Referral of the matter to the bar of which the listed arbitrator is a member. (c) In the case of an interested party or individual who engaged in the ethical violation— (1) Referral of the matter to the bar or professional association of which the interested individual is a member; (2) Barring the offending individual from current and/or future appearances before the CARP; (3) Designation of an issue in the current or in a future proceeding as to whether the party's interest should not be dismissed, denied, or otherwise adversely affected. (d) In all applicable matters of violations of standards of conduct, the Librarian may refer the matter to the Department of Justice, or other legal authority of competent jurisdiction, for criminal prosecution.
Title 37: Patents, Trademarks, and Copyrights
PART 251—COPYRIGHT ARBITRATION ROYALTY PANEL RULES OF PROCEDURE
Subpart D—Standards of Conduct
§ 251.30 Basic obligations of arbitrators.
§ 251.31 Financial interests.
§ 251.32 Financial disclosure statement.
§ 251.33
§ 251.34 Gifts and other things of monetary value.
§ 251.35 Outside employment and other activities.
§ 251.36 Pre-arbitration and post-arbitration employment restrictions.
§ 251.37 Use of nonpublic information.
§ 251.38 Billing and commitment to standards.
§ 251.39 Remedies.
