Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being Commercially Exploited, 1661-1678 [2019-00873]

Download as PDF Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules Insurance Corporation Improvement Act of 1991, 12 U.S.C. 1828(o), prescribes standards for real estate lending to be used by FDIC-supervised institutions in adopting internal real estate lending policies. For purposes of this subpart, the term ‘‘FDIC-supervised institution’’ means any insured depository institution for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(q). ■ 3. Amend § 365.2 by revising paragraphs (a), (b)(1)(iii), (2)(iii) and (iv), and (c) to read as follows: Dated at Washington, DC, on December 18, 2018. By order of the Board of Directors. Federal Deposit Insurance Corporation. Valerie Best, Assistant Executive Secretary. § 365.2 Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being Commercially Exploited Real estate lending standards. (a) Each FDIC-supervised institution shall adopt and maintain written policies that establish appropriate limits and standards for extensions of credit that are secured by liens on or interests in real estate, or that are made for the purpose of financing permanent improvements to real estate. (b)(1) * * * (iii) Be reviewed and approved by the FDIC-supervised institution’s board of directors at least annually. (2) * * * (iii) Loan administration procedures for the FDIC-supervised institution’s real estate portfolio; and (iv) Documentation, approval, and reporting requirements to monitor compliance with the FDIC-supervised institution’s real estate lending policies. (c) Each FDIC-supervised institution must monitor conditions in the real estate market in its lending area to ensure that its real estate lending policies continue to be appropriate for current market conditions. * * * * * Subpart B—[Removed and Reserved] 4. Remove and reserve subpart B, consisting of §§ 365.101, 365.102, 365.103, 365.104, 365.105, and appendix A to subpart B. ■ PART 390—REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT SUPERVISION 5. The authority citation for part 390 continues to read as follows: ■ Authority: 12 U.S.C. 1819. Subpart P—[Removed and Reserved] 6. Remove and reserve Subpart P, consisting of §§ 390.260, 390.261, 390.262, 390.263, 390.264, 390.265, 390.266, 390.267, 390.268, 390.269, 390.270, 390.271, 390.272. ■ VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 [FR Doc. 2018–28084 Filed 2–4–19; 8:45 am] BILLING CODE 6714–01–P LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 2018–8] U.S. Copyright Office, Library of Congress. ACTION: Notice of proposed rulemaking. AGENCY: The U.S. Copyright Office (‘‘Copyright Office’’ or ‘‘Office’’) is issuing a notice of proposed rulemaking regarding the Classics Protection and Access Act, title II of the recently enacted Orrin G. Hatch-Bob Goodlatte Music Modernization Act. In connection with the establishment of federal remedies for unauthorized uses of sound recordings fixed before February 15, 1972 (‘‘Pre-1972 Sound Recordings’’), Congress also established an exception for certain noncommercial uses of Pre-1972 Sound Recordings that are not being commercially exploited. To qualify for this exemption, a user must file a notice of noncommercial use after conducting a good faith, reasonable search to determine whether the Pre1972 Sound Recording is being commercially exploited, and the rights owner of the sound recording must not object to the use within 90 days. After soliciting public comments through a notice of inquiry, the Office is proposing regulations identifying the specific steps that a user should take to demonstrate she has made a good faith, reasonable search. The proposed rule also details the filing requirements for the user to submit a notice of noncommercial use and for a rights owner to submit a notice objecting to such use. DATES: Written comments must be received no later than 11:59 p.m. Eastern Time on March 7, 2019. Meeting requests must be received no later than 11:59 p.m. Eastern Time on March 18, 2019, and all meetings must take place no later than Friday, March 22, 2019. The Office will not consider requests to hold meetings after that date. So that the Copyright Office is able to meet the SUMMARY: PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 1661 statutory deadlines set forth in the Music Modernization Act, no further extensions of time will be granted in this rulemaking. ADDRESSES: For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office’s website at https:// www.copyright.gov/rulemaking/ pre1972-soundrecordingsnoncommercial/. If electronic submission of comments is not feasible due to lack of access to a computer and/ or the internet, please contact the Office using the contact information below for special instructions. FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and Associate Register of Copyrights, by email at regans@copyright.gov or Anna Chauvet, Assistant General Counsel, by email at achau@copyright.gov. Each can be contacted by telephone by calling (202) 707–8350. SUPPLEMENTARY INFORMATION: I. Background On October 11, 2018, the president signed into law the Orrin G. Hatch-Bob Goodlatte Music Modernization Act, H.R. 1551 (‘‘MMA’’). Title II of the MMA, the Classics Protection and Access Act, created chapter 14 of the copyright law, title 17, United States Code, which, among other things, extends remedies for copyright infringement to owners of sound recordings fixed before February 15, 1972 (‘‘Pre-1972 Sound Recordings’’). Under the provision, rights owners may be eligible to recover statutory damages and/or attorneys’ fees for the unauthorized use of their Pre-1972 Sound Recordings if certain requirements are met. To be eligible for these remedies, rights owners must typically file schedules listing their Pre1972 Sound Recordings (‘‘Pre-1972 Schedules’’) with the U.S. Copyright Office, which are indexed into the Office’s public records.1 The filing requirement is ‘‘designed to operate in place of a formal registration requirement that normally applies to claims involving statutory damages.’’ 2 The MMA also creates a new mechanism for members of the public to obtain authorization to make noncommercial uses of Pre-1972 Sound 1 17 U.S.C. 1401(f)(5)(A)(i)(I)–(II). Rep. No. 115–651, at 16 (2018); see S. Rep. No. 115–339, at 18 (2018). 2 H.R. E:\FR\FM\05FEP1.SGM 05FEP1 1662 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules Recordings that are not being commercially exploited. Under section 1401, a person may file a notice with the Copyright Office and propose a specific noncommercial use after taking steps to determine whether the recording is, at that time, being commercially exploited by or under the authority of the rights owner.3 Specifically, before determining that the recording is not being commercially exploited, she must first undertake a ‘‘good faith, reasonable search’’ of both the Pre-1972 Schedules indexed by the Copyright Office and music services ‘‘offering a comprehensive set of sound recordings for sale or streaming.’’ 4 At that point, she may file a notice identifying the Pre1972 Sound Recording and nature of the intended noncommercial use with the Office (a ‘‘notice of noncommercial use’’ or ‘‘NNU’’).5 The Office will index this notice into its public records.6 In response, the rights owner of the Pre-1972 Sound Recording may file a notice with the Copyright Office ‘‘opting out’’ of (i.e., objecting to) the requested noncommercial use (‘‘Pre-1972 Opt-Out Notice’’), and if the user nonetheless engages in the noncommercial use, such use may subject the user to liability under section 1401(a) if no other limitation on liability applies.7 The rights owner of the Pre-1972 Sound Recording has 90 days from when the NNU is indexed into the Office’s public records to file a Pre-1972 Opt-Out Notice.8 If, however, the rights owner does not opt-out within 90 days, the user may engage in the noncommercial use of the Pre-1972 Sound Recording without violating section 1401(a).9 Under the Classics Protection and Access Act, the Copyright Office must issue regulations identifying the ‘‘specific, reasonable steps that, if taken by a [noncommercial user of a Pre-1972 Sound Recording], are sufficient to constitute a good faith, reasonable search’’ of the Office’s records and music services to support a conclusion that a relevant Pre-1972 Sound Recording is not being commercially exploited.10 A user following the ‘‘specific, reasonable steps’’ identified by the Office will satisfy the statutory requirement of conducting a good faith search, even if the sound recording is later discovered to be commercially exploited.11 Other searches may also 3 17 U.S.C. 1401(c)(1)(A)–(B). at 1401(c)(1)(A). 5 Id. at 1401(c)(1)(B). 6 Id. at 1401(c)(1)(C). 7 Id. at 1401(c)(1). 8 Id. at 1401(c)(1)(C). 9 Id. at 1401(c)(1). 10 Id. at 1401(c)(3)(A). 11 Id. at 1401(c)(4)(B). 4 Id. VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 satisfy this statutory requirement, but the user would need to independently demonstrate how she met the requirement if challenged.12 The Office must also issue regulations ‘‘establish[ing] the form, content, and procedures’’ for users to file NNUs and rights owners to file Pre-1972 Opt-Out Notices.13 On October 16, 2018, the Office issued a notice of inquiry (‘‘NOI’’) soliciting comments regarding the specific steps a user should take to demonstrate she has made a good faith, reasonable search.14 The Office also solicited comments regarding the filing requirements for the user to submit an NNU and for a rights owner to submit a Pre-1972 Opt-Out Notice objecting to such use.15 In response, the Office received ten initial comments and fifteen reply comments, which are discussed further below.16 Having reviewed and carefully considered the comments, the Office now issues a proposed rule and invites further public comment. II. Proposed Rule This document (the ‘‘NPRM’’) proposes regulatory language regarding three specific areas: (i) The ‘‘specific, reasonable steps that, if taken by a [noncommercial user of a Pre-1972 Sound Recording], are sufficient to constitute a good faith, reasonable search’’ to support a conclusion that a relevant Pre-1972 Sound Recording is not being commercially exploited; 17 (ii) the form, content, and procedures for a user, having made such a search, to file an NNU; and (iii) the form, content, and procedures for a rights owner to file a Pre-1972 Opt-Out Notice.18 In proposing the following regulatory language, the Office also confirms, as requested by multiple commenters, that the noncommercial use exception under section 1401(c) is supplementary, and does not negate other exceptions and limitations that may be available to a prospective user, including fair use and 12 Id. at 1401(c)(4)(A)–(B). at 1401(c)(3)(B), (5)(A). 14 83 FR 52176 (Oct. 16, 2018). 15 Id. at 52176. 16 The comments received in response to the NOI are available online at https://www.regulations.gov/ docketBrowser?rpp=25&so=DESC&sb= commentDueDate&po=0&dct=PS&D=COLC-20180008. References to these comments are by party name (abbreviated where appropriate), followed by either ‘‘Initial’’ or ‘‘Reply,’’ as appropriate. 17 17 U.S.C. 1401(c)(3)(A). 18 The proposed rule also confirms that 37 CFR 201.4 does not govern the filing of NNUs and Pre1972 Opt-Out Notices. Similarly, the proposed rule makes a technical edit to reflect that the filing of notices of use of sound recordings under statutory license (17 U.S.C. 112(e), 114) are not governed by 37 CFR 201.4. 13 Id. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 the exceptions for libraries and archives.19 Section 1401(f) separately provides that ‘‘the limitations on the exclusive rights of a copyright owner described in section 107, 108, 109, 110, and 112(f) shall apply to a claim under [section 1401(a)] with respect to a sound recording fixed before February 15, 1972,’’ as well as the section 512 limitation on liability relating to material online.20 Further, section 1401(c) states that whether ‘‘a person files notice of a noncommercial use of a sound recording’’ or ‘‘a rights holder opts out of a noncommercial use of a sound recording,’’ that ‘‘does not itself enlarge or diminish any limitation on the exclusive rights of a copyright owner described in section 107, 108, 109, 110, or 112(f) as applied to a claim under [section 1401(a)].’’ 21 These other exceptions and limitations are available to users whether or not they claim the exception for noncommercial use.22 Regarding fair use specifically, the Office notes that although certain noncommercial uses may constitute fair use, not all may be fair; instead, courts will balance the purpose and character of the use against the other fair use factors.23 Similarly, multiple stakeholders commented that the noncommercial use exception should not affect application of the section 108(h) exception available for libraries and archives performing a reasonable investigation regarding the availability of published works in the last twenty years of their copyright term.24 These commenters rightly note 19 See ARSC Reply at 1 (addressing interplay between section 1401(c) and section 107); Music Library Association Initial at 1 (same); Electronic Frontier Foundation (‘‘EFF’’) Initial at 2 (same); Future of Music Coalition (‘‘FMC’’) Reply at 2 (same); Library Copyright Alliance (‘‘LCA’’) Initial at 1–2 (addressing interplay between section 1401 and section 108). 20 17 U.S.C. 1401(f)(1)(A); (3). 21 Id. at 1401(c)(2)(C), (c)(5)(B). 22 See EFF Initial at 2 (‘‘The Copyright Office should emphasize . . . that fair use will apply (or not) regardless of whether a potential user files a notice of use, and regardless of whether a rightsholder opts out.’’). 23 See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584–85 (1994) (noting ‘‘the commercial or nonprofit educational character of a work is ‘not conclusive’ ’’ to fair use (quoting Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 448 (1984))); H.R. Rep. No. 94–1476, at 66 (1976) (same). 24 See Copyright Alliance Initial at 2 n.3 (stating that ‘‘any conclusions made in determining what constitutes a ‘good faith, reasonable search’ for commercial exploitation of a pre-72 sound recording [do] not have any bearing on the meaning or scope of the ‘reasonable investigation’ requirement within Section 108(h)’’); LCA Initial at 1–2 (stating that section 1401 procedures should not apply to libraries and archives employing section 108(h)); American Association of Independent Music (‘‘A2IM’’) & Recording Industry Association of America, Inc. (‘‘RIAA’’) Reply at 9 (‘‘[W]e agree with LCA that there is not an exact E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules that sections 1401(c) and 108(h) contain differing statutory criteria regarding the type of search or investigation that must be made before making use of the respective exceptions, and the present rulemaking is focused on administering the exception for Pre-1972 Sound Recordings under section 1401(c).25 Moreover, section 108(h) is not limited to sound recordings (much less Pre-1972 Sound Recordings); as discussed below, the proposed regulations governing a ‘‘good faith, reasonable search’’ for purposes of section 1401(c) specifically consider the various ways sound recordings are brought to market. Finally, the Copyright Office keenly appreciates that ‘‘some of the users hoping to use [Pre-1972 Sound Recordings] may not have much copyright law background.’’ 26 In connection with the Office’s overall public information and education initiatives and the promulgation of a final rule, the Office intends to prepare additional public resources regarding Pre-1972 Sound Recordings and the new noncommercial use exception, including potentially a public circular. By the same token, the Office appreciates A2IM and RIAA’s view that ‘‘the average person knows full well how to construct an effective internet search designed to uncover a very specific item or information for which they are looking,’’ and so while the proposed rule does not presume an expertise in copyright, it does presume a functional search capability on the part of a human user.27 A. Good Faith, Reasonable Search The proposed rule identifies five steps (six in the case of Alaska Native and American Indian ethnographic sound recordings) that, if taken, will support a conclusion that a relevant Pre-1972 Sound Recording is not being commercially exploited.28 Consistent with the statute’s directive to provide ‘‘specific’’ steps that are ‘‘sufficient, but not necessary’’ to demonstrate a Pre1972 Sound Recording is not being commercialized, the rule adopts a ‘‘checklist’’ 29 approach for users to match between the language in Sections 1401(c) and 108(h) regarding the nature of the search that must be conducted before the relevant provision becomes applicable.’’). 25 See, e.g., Copyright Alliance Initial at 3; LCA Initial at 2. 26 FMC Reply at 6; see also AAU Initial at 1. 27 A2IM & RIAA Reply at 10; see also internet Archive Initial at 1 (‘‘Human searchers should be able to search a couple of services quite thoroughly.’’). 28 17 U.S.C. 1401(c)(3)(A). 29 Copyright Alliance Initial at 3 (suggesting the checklist ‘‘should represent the minimum requirements of a reasonable search and recognize VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 search across categories rather than an ‘‘open-ended’’ approach to better provide certainty to users.30 The proposed rule divides various types of sources into different categories, and requires users to progressively search in each category (if and until a match is found, with a match evidencing commercial exploitation of the Pre-1972 Sound Recording).31 Categories to be searched are listed in recommended search order, to reduce the likelihood of duplicative searching.32 Because in some cases, the type of recording (e.g., classical music, jazz, or ethnographic sound recordings) may warrant searching an additional resource or more particularized search criteria, such additional criteria are included on a tailored basis, as applicable to a particular genre. In short, the rule proposes searching the following: 1. The Copyright Office’s database of Pre-1972 Schedules; 2. One of the following major search engines: Google, Yahoo!, or Bing; 3. One of the following major streaming services: Amazon Music Unlimited, Apple Music, Spotify, or TIDAL; 4. The SoundExchange ISRC database; 5. Amazon.com, and, where the prospective user reasonably believes the recording implicates a listed niche genre, an additional listed retailer of physical product; and 6. In the case of ethnographic Pre1972 Sound Recordings of Alaska Native or American Indian tribes or communities, searching through contacting the relevant tribe, association, and/or holding institution The NOI generated a wide range of helpful comments from a rich variety of perspectives, and the proposed rule represents a compromise amongst those views. While this NPRM will no doubt draw out additional thoughtful comments, the Office is optimistic that this proposed rule strikes an appropriate balance, achieving the goal of crafting a practical rule with steps that are reasonable to expect of an individual user, yet exhaustive enough to qualify that user for a safe harbor as to the search’s sufficiency from the that each individual case will be different and will likely require additional steps’’). 30 EFF Reply at 3 (suggesting that an open-ended rule ‘‘would give potential users no added certainty, making the safe harbor meaningless’’); see Wikimedia Foundation Reply at 2 (same). 31 See A2IM &RIAA Initial at 4 (describing category-based search structure). 32 See id. at 4, 7 (proposing prioritized search from ‘‘broad’’ to ‘‘narrow’’ categories and methodology that minimizes ‘‘duplicative searches’’); Public Knowledge Initial at 2 (advocating avoidance of ‘‘duplicative’’ searching). PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 1663 perspective of rights owners’ interests. Although a range of stakeholders agreed in principle with this goal,33 views differed as to how many steps should constitute a ‘‘good faith, reasonable search.’’ For example, Public Knowledge suggested that users need only search the Office’s database of Pre1972 Schedules and ‘‘no more than one to two’’ streaming services,34 while A2IM and RIAA proposed nine categories of steps to be searched.35 In synthesizing the public comments, the Copyright Office notes that the statute expressly contemplates searching on multiple services, including those offering sound recordings ‘‘for sale’’ 36 in addition to streaming services, and a congressional report characterizing the search requirement as ‘‘robust.’’ 37 In proposing this rule, the Copyright Office is also mindful of the individual and smaller-group interests from both rights owner and licensee or other user perspectives. The Office is concerned that limiting sources to be searched to only the most commercially popular services might obscure perspectives of ‘‘smaller, less mainstream creators’’ and independent services who themselves play a vital role in ensuring that a diverse array of cultural contributions are created and made available to the public.38 As FMC notes, artists may deliberately ‘‘target niche markets and collectors—sometimes with careful remastering and extensive historical information,’’ or may opt not to make their entire catalog available on mainstream streaming services.39 The proposed rule attempts to account for the diversity of practices and leave room for these competing business models to innovate and flourish. But the proposed 33 See, e.g., Public Knowledge Initial at 2 (‘‘The goal is . . . to strike a practical balance between the interests of rights owners and potential users.’’); A2IM & RIAA Reply at 2 (‘‘[T]he Office has an obligation to respect and preserve the careful balance struck by Congress in enacting Section 1401(c).’’). 34 Public Knowledge Initial at 5, App. 35 A2IM & RIAA Initial at 4–6. 36 17 U.S.C. 1401(c)(1)(A)(ii); see id. at 1401(c)(3)(A) (directing the Register to issue regulations identifying ‘‘services offering a comprehensive set of sound recordings for sale or streaming’’ to be searched). 37 Report and Section-by-Section Analysis of H.R. 1551 by the Chairmen and Ranking Members of Senate and House Judiciary Committees, at 25 (2018), https://www.copyright.gov/legislation/mma_ conference_report.pdf (‘‘Conf. Rep.’’). 38 FMC Reply at 1–2; see also Copyright Alliance Initial at 1 (discussing relationship between ‘‘existing general and niche markets’’); A2IM & RIAA Reply at 9 (listing a variety of specialized storefronts and discussing period or niche recordings ‘‘not previously available through comprehensive streaming services like Spotify and Apple Music’’); IMSLP.ORG Reply at 2 (classical music storefront). 39 FMC Reply at 3. E:\FR\FM\05FEP1.SGM 05FEP1 1664 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules rule also takes into account smaller users. It tries to prioritize services with intuitive search capabilities and minimize resources where a subscription is required to access the search function; further, the categories to be searched—with the potential exception of interactive streaming services, which all commenters agree are statutorily required to be included in a search—are all available at no cost to the user.40 As noted below, the Office has declined to include various suggestions that might be redundant or overly burdensome, and some criteria are included only as applicable to a particular genre of work. The proposed rule also does not require ‘‘consultation with an experienced music clearance professional,’’ although the Office does not discourage such consultation, which may prove helpful to a user planning a wide-scale or complex use case.41 In proposing the following search criteria, the Office agrees with various rights holders that the noncommercial use exception is not intended to displace the important role of licensed transactions to facilitate the use of Pre1972 Sound Recordings.42 Indeed, a main thrust of Title II is to ‘‘create royalties’’ for these works using the same rates and distribution system already applicable for post-72 works, particularly by music services that previously used pre-1972 works ‘‘while paying royalties for post-72 works.’’ 43 In this rulemaking, Copyright Alliance has asked the Office to require a user to directly notify a rights owner if that owner can be located.44 While the Office agrees that, practically speaking, the noncommercial use exception may be unavailable for many works where the rights owner is readily identifiable since those works are more likely to be commercially exploited,45 the statute does not require users to contact rights owners or determine that they cannot be located before relying on the section 1401(c) exception.46 Instead, the purpose of the good faith, reasonable search is ‘‘to determine whether the sound recording is being commercially exploited by or under the authority of the rights owner.’’ 47 Although the Conference Report states that the noncommercial use exception is ‘‘provided primarily to enable use of older recordings where it may not be clear to a user how to contact the rights owner to ask for permission,’’ 48 use of the word ‘‘primarily’’ indicates that Congress contemplated situations where the rights owner may be known to the user, but the owner has ceased or otherwise refrained from commercially exploiting the sound recording. In any event, comments suggest that a large array of Pre-1972 Sound Recordings do not have an identifiable owner, in which cases a prospective user making use of the section 1401(c) safe harbor and filing an NNU can expect to benefit from this additional exception.49 Similarly, multiple commenters pointed out differences between section 1401(c)’s requirement to identify whether a work is being commercially exploited with prior proposals regarding orphan works, including a 2008 bill which provided a description of a ‘‘qualifying search, in good faith, to locate and identify the owner of the infringed copyright’’ before making use of an orphan work.50 For these reasons, 40 See Public Knowledge Initial at 6 (‘‘It would be inappropriate for the Copyright Office to require that a user search the catalog of a service where a subscription is required to access the search function.’’). Public Knowledge would include Amazon Music Unlimited and Apple Music as proposed services to search, which are not free, and other services may require a paid subscription to enable more robust search features. See also A2IM & RIAA Reply at 5 (‘‘[T]he cost of any necessary subscriptions is not very high, especially when considering the availability of free trials for premium services and free basic tiers for most services.’’). 41 A2IM & RIAA Initial at 9. 42 See, e.g., id. at 1–2 (suggesting that in many cases, voluntary licensing may prove more efficient within a short timeframe than this exception); Copyright Alliance Initial at 2–3 (stating the noncommercial uses exception ‘‘should not be used to circumvent the normal licensing process or as a substitute for requesting permission from rights owners who can be contacted’’); SoundExchange Initial at 2. 43 S. Rep. No. 115–339, at 17–18 (2018); see H.R. Rep. No. 115–651, at 15 (2018); 17 U.S.C. 1401(b), (d) (addressing payment of royalties pursuant to the rates and terms adopted under sections 112(e) and 114(f) or direct licensing). 44 Copyright Alliance Initial at 2–3, 5. 45 See, e.g., A2IM & RIAA Initial at 1–2; SoundExchange Initial at 2; FMC Reply at 6 (‘‘We largely agree with RIAA’s contextualization of 1401(c), as not oriented to cases where the current rights owner is known or ‘reasonably capable of discovery.’ ’’); but see LCA Reply at 1. 46 17 U.S.C. 1401(c)(1)(A); see also EFF Initial Comments at 2. 47 17 U.S.C. 1401(c)(1)(A). 48 Conf. Rep. at 25 (emphasis added). 49 Association for Recorded Sound Collections (‘‘ARSC’’) Reply at 2 (citing data suggesting that rights owner is unidentifiable for 16% of pre-1965 recordings, and up to 26% for certain categories like 1920–1929 or popular and rock recordings); see also Public Knowledge Initial at 3 (‘‘The number of pre1972 sound recordings that are still being commercially exploited are vastly outnumbered by those that have no commercial value or interest.’’). 50 See EFF Initial at 2; Public Knowledge Reply at 7; Shawn Bentley Orphan Works Act of 2008, S. 2913, 110th Cong. sec. 514(b)(1) (as passed by Senate, Sept. 26, 2008); see also U.S. Copyright Office, Orphan Works and Mass Digitization (2015), https://www.copyright.gov/orphan/reports/orphanworks2015.pdf; A2IM & RIAA Initial at 10 (agreeing with categorical approach adopted in the 2008 bill, but ‘‘find[ing] the steps outlined there to be too generic’’ for section 1401(c)); IMSLP.ORG Reply at 1 (maintaining that the ‘‘diligent effort’’ VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 while the Office hopes that the MMA’s noncommercial use provision may well prove to yield useful insights into the broader orphan works debate, the proposed rule is necessarily tailored to the sui generis noncommercial use exception for Pre-1972 Sound Recordings and was not crafted to specifically address that ongoing debate.51 Finally, while the proposed rule is intended to take into account the current music marketplace, Congress has provided regulatory flexibility so that the Copyright Office may periodically update its list of specific steps to take into account changes in the music landscape, and the Office expects to exercise that authority as warranted by changes in the marketplace.52 i. Required Sources To Search 1. Searching the Copyright Office’s Database of Pre-1972 Schedules First, section 1401(c) requires that for a search to constitute a good faith, reasonable search, the search must include searching for the Pre-1972 Sound Recording in the Copyright Office’s database of Pre-1972 Schedules.53 The Office has issued an interim rule governing how rights owners may file Pre-1972 Schedules and how they are made publicly available through an online database.54 For each sound recording, the Pre-1972 Schedule requirement in the 2008 bill is too general, and that having a ‘‘detailed list of steps required to satisfy the search requirement for services’’ would be more helpful). To the extent commenters suggested that the 2008 bill is helpful to highlight specific aspects of a proposed search step, it is addressed further below. 51 See Conf. Rep. at 15; S. Rep. No. 115–339, at 18 (2018) (noting sui generis nature of exception). 52 See Conf. Rep. at 25 (noting search must be based on ‘‘services available in the market at the time of the search’’); A2IM & RIAA Initial at 7. 53 17 U.S.C. 1401(c)(1)(A)(i), (f)(5)(A). Public Knowledge asks the Office to ‘‘explore whether it possesses the authority to institute a limited renewal requirement, under which entries in [Pre1972 Schedules] would be subject to a periodic renewal in the same vein as DMCA agent designations.’’ Public Knowledge Reply at 17; see 37 CFR 201.38(c)(4) (requiring DMCA agent designation to be updated every three years); see also 17 U.S.C. 512(c)(2)(B) (requiring the Register to ‘‘maintain a current directory’’ of agents). Section 1401 does not explicitly reference the need for periodic renewal of Pre-1972 Schedules, although it does apply different terms of protection to Pre-1972 Sound Recordings depending upon their year of first publication. 17 U.S.C. 1401(a)(2). The Office does not propose such a requirement at this time (and notes that substantive comments in its contemporaneous rulemaking regarding Pre-1972 Schedules did not raise this issue). The Office is open, however, to exploring the need and regulatory authority for such a renewal requirement for Pre-1972 Schedules (or NNUs) at a later date, perhaps in connection with periodic review of the search requirements promulgated under this rule. 54 83 FR 52150 (Oct. 16, 2018). E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules must include the rights owner’s name, the sound recording title, and the featured artist, and rights owners may opt to include additional information, such as album title.55 For this rulemaking, the proposed rule would require users to search for the title and featured artist(s) of the Pre1972 Sound Recording. If the user knows any of the following attributes of the Pre-1972 Sound Recording, the search must also include searching: Alternate artist name(s), alternate title(s), album title, and the International Standard Recording Code (‘‘ISRC’’). The user may also optionally search any other attributes known to the user of the sound recording, such as label, version, or Universal Product Code (‘‘UPC’’). The following fields in the Office’s database of Pre-1972 Schedules will be searchable: Rights owner, sound recording title (which includes alternate titles), album, label, featured artist (which includes alternate artist name(s)), and ISRC. In response to comments, the Office is pleased to report that its database of Pre-1972 Schedules already allows for wildcard searching by using an asterisk to fill in partial words.56 A user can export and download the search results based on those fields into an Excel spreadsheet to view (and search) additional data, such as version or UPC. 2. Searching With a Major Search Engine Second, the proposed rule asks the user to search for the Pre-1972 Sound Recording using at least one major search engine, namely: Google, Yahoo!, 55 37 CFR 201.35(d). The Office expects to issue a final rule regarding the filing of Pre-1972 Schedules, which will ask rights owners to provide the International Standard Recording Code (‘‘ISRC’’) (if known), and to optionally provide the version, alternate artist name(s), and Universal Product Code (‘‘UPC’’). This expansion of fields accommodates comments in that parallel proceeding, and should ease user concerns about disambiguating data. See A2IM, RIAA & SoundExchange Comments re Filing of Schedules by Rights Owners and Contact Information by Transmitting Entities Relating to Pre-1972 Sound Recordings at 7–8 (requesting addition of ISRC number, sound recording version, and alternate artist name fields); EFF Initial at 3 (discussing searches of the Office’s database of Pre1972 Schedules). 56 See, e.g., A2IM & RIAA Initial at 6; Copyright Alliance Initial at 4; EFF Initial at 3. For example, a search for ‘‘light*’’ in the title field currently returns, among other titles, ‘‘(In The) Cold Light Of Day,’’ ‘‘Harbor Lights,’’ ‘‘White Lightnin’,’’ and ‘‘White Lightning.’’ See Schedules of Pre-1972 Sound Recordings, U.S. Copyright Office, https:// copyright.gov/music-modernization/pre1972soundrecordings/search-soundrecordings.html (last visited Jan. 28, 2019). The Office has updated the search instructions on its database web page so users are aware of this search capability. While the current technology does not permit ‘‘fuzzy’’ searching, that limitation is also noted on the web page to guide user expectations. VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 or Bing, to determine whether the sound recording is being commercially exploited.57 Users are widely accustomed to conducting internet searches, and such searching is free and may render searching on a streaming service or other service unnecessary. For example, a search on the phrase ‘‘rockin around the christmas tree’’ using Google—to locate the 1958 recording ‘‘Rockin’ Around the Christmas Tree’’ featuring artist Brenda Lee—shows, among other things, that the sound recording is available for streaming on Spotify, Google Play Music, Deezer, and Apple Music.58 Similarly, a search on the combined phrases ‘‘rockin around the christmas tree’’ and ‘‘purchase’’ using Google shows that the same sound recording is available for sale as an .mp3 file download and on a compact disc through Amazon.com. The proposed rule, as well as the Office’s form or instructions, will make clear this search is to determine whether the Pre-1972 Sound Recording is being commercially exploited (i.e., by being offered for sale in download form or as a new (not resale) physical product, or through a streaming service), and not simply whether the internet includes web pages discussing the recording, such as musicological, historical, or other commentary about the work. 3. Searching on a Digital Streaming Service Third, the proposed rule asks the user to search at least one of the following streaming services, each of which offers tens of millions of tracks: 59 Amazon Music Unlimited,60 Apple Music,61 Spotify,62 or TIDAL.63 The Office proposes these streaming services because, among the commenters who proposed specific streaming services to search, there appears to be agreement on 57 See A2IM & RIAA Initial at 5; Copyright Alliance Initial at 4; FMC Reply at 6 (each suggesting that major search engines should be searched). 58 Google, https://www.google.com/search?client= firefox-b-1-ab&q=%E2%80%9Crockin+around+ thechristmastree%E2%80%9D (last visited Jan. 28, 2019). 59 A2IM & RIAA Initial at 5. 60 Amazon, Amazon Music: What is Amazon Music Unlimited?, https://www.amazon.com/gp/ help/customer/display.html?nodeId=202059460 (last visited Jan. 28, 2019) (stating Amazon Music Unlimited offers 50+ million tracks). 61 Apple, Apple Music, https://www.apple.com/ apple-music/ (last visited Jan. 28, 2019) (stating Apple Music offers 50+ million tracks). 62 Spotify, Spotify Investors, https:// investors.spotify.com/home/default.aspx (last visited Jan. 28, 2019) (stating Spotify offers 40+ million tracks). 63 TIDAL, What is TIDAL, https:// support.tidal.com/hc/en-us/articles/202992312About-TIDAL (last visited Jan. 28, 2019) (stating TIDAL offers 57+ million tracks). PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 1665 these services in particular.64 In addition, these services currently offer some of the largest repertoires of tracks and ‘‘receive digital feeds from the major labels, large indie labels and significant distributors.’’ 65 The Office invites public comment on whether Google Play Music and/or Deezer should be included in the list of streaming services, as they also offer large repertoires of tracks but were not identified as possible sources from as many commenters. A spectrum of commenters suggested that the rule should require a user to search multiple, but not all, such streaming services.66 While it is clear that these services’ repertoires are not identical—including because some rights owners may engage in exclusive streaming arrangements 67—commenters also noted that searching multiple streaming services might be duplicative.68 For example, internet Archive, citing its own efforts to ‘‘automat[e] the process of searching for commercial availability at scale,’’ suggests that a good faith, reasonable search ‘‘should entail performing a few high quality searches on a small number of large services rather than performing a low quality search across a large number of services.’’ 69 The Office invites comment on whether users should be required to search a greater number of these services. The Office agrees that requiring repetitive searches of all these streaming services would likely be redundant. Instead, as explained further below, because Pre-1972 Sound Recordings can also be expected to be commercially exploited outside of these services, the proposed rule would limit the number of streaming services to be searched, but add qualitatively different sources to 64 A2IM & RIAA Initial at 7 (identifying Amazon Music Unlimited, Apple Music, Spotify and TIDAL as possible streaming services to search); EFF initial at 4 (identifying Amazon Music, Apple Music, Spotify, and TIDAL as possible streaming services to search); Public Knowledge Initial at 5, App. (identifying Amazon Music Unlimited, Spotify, and Apple Music as possible streaming services to search). 65 A2IM & RIAA Initial at 5. 66 Id. at 7 (proposing users search on two services including, among others, Amazon Music Unlimited, Apple Music, Spotify and TIDAL); EFF Initial at 4 (contending that ‘‘[r]easonable to include some subset’’ of services including, among others, Amazon Music, Apple Music, Spotify, and TIDAL); Public Knowledge Initial at 5, App. (proposing search of ‘‘no more than one to two’’ of the following services: Amazon Music Unlimited, Spotify, or Apple Music). 67 Recording Academy Reply at 4 (suggesting the rule should require searching of more than two services). 68 A2IM & RIAA Initial at 7; Public Knowledge Initial at 2. 69 Internet Archive Initial at 1. E:\FR\FM\05FEP1.SGM 05FEP1 1666 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules search, such as major search engines, the SoundExchange ISRC lookup tool, and, for certain niche genres, other specific resources. By requiring searches on only one of these comprehensive streaming services, the proposed rule also minimizes the potential financial burden on prospective users. To be sure, A2IM and RIAA note that the cost of these subscription services are ‘‘not very high,’’ suggesting that it is not unreasonable to ask users ‘‘to take on a handful of short-term subscription payments in order to gain a royalty-free license to valuable sound recordings.’’ 70 IMSLP.ORG contends that users conducting a good faith, reasonable search under section 1401(c) should be able to search streaming services using ‘‘Application Programming Interfaces (APIs) officially supported by the relevant service,’’ as APIs ‘‘considerably decrease the cost of performing such searches with no loss of accuracy.’’ 71 The Office invites public comment on whether the proposed rule should address whether users should be able to use officially-supported APIs to search and locate a Pre-1972 Sound Recording on a streaming service. 4. Searching With the SoundExchange ISRC Lookup Tool Fourth, the proposed rule asks the user to search for the Pre-1972 Sound Recording using the free online SoundExchange ISRC lookup tool (located at https:// isrc.soundexchange.com/#!/search) to search SoundExchange’s database, which contains information for more than 27 million sound recordings, including Pre-1972 Sound Recordings.72 An overwhelming number of stakeholders representing rights owners recommended inclusion of the SoundExchange ISRC lookup tool as an important category of search.73 For its part, SoundExchange characterizes its 70 A2IM & RIAA Reply at 5–6 (noting similar requirement in 2008 Shawn Bentley Orphan Works Bill). 71 IMSLP.ORG Reply 2. 72 SoundExchange Initial at 2–3. 73 See A2IM & RIAA Initial at 5 (rights owners provide metadata to SoundExchange ‘‘for royalty collection, which is a form of commercial exploitation’’); Copyright Alliance Initial at 5 (‘‘SoundExchange’s ISRC search tool should be searched, as it provides a vast library of information concerning sound recordings that are submitted by rights owners and their authorized representatives to SoundExchange for the purpose of collecting royalties, which is a form of commercial exploitation’’); SoundExchange Initial at 2–14; FMC Reply at 6 (stating that the SoundExchange ISRC lookup tool is ‘‘eminently useful’’ and that inclusion of a sound recording in this database ‘‘is an unambiguous indicator that a recording is being commercially exploited’’); Recording Academy Reply at 3 (‘‘SoundExchange’s ISRC Search tool is indispensable to a good faith, reasonable search.’’). VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 database as ‘‘quite possibly the most authoritative and comprehensive database of sound recordings that have otherwise been commercially exploited.’’ 74 On the other hand, Public Knowledge objects to including this lookup tool because it is not itself a ‘‘service[ ] offering a comprehensive set of sound recordings for sale or streaming.’’ 75 Because the ISRC lookup tool allows users to freely and easily search a deep trove of sound recording information that rights owners themselves have submitted in connection with commercializing those recordings, including on multiple streaming services, the proposed rule tentatively concludes it is desirable and appropriate to include this tool as a step in a sufficient good faith, reasonable search. A few considerations buttress this conclusion. First, rights owners register and provide these data regarding their sound recordings so they can be paid for their use under the statutory and direct licenses administered by SoundExchange, including the compulsory licenses applicable for internet radio, satellite radio, cable TV music services, streaming into business establishments, and other services.76 As a result, the database provides indicia of exploitation on a wide expanse of music services that the Office does not otherwise propose searching before a user may qualify for the safe harbor under section 1401(c) (e.g., Pandora, Sirius XM, iHeartRadio, MusicChoice, and over 3,100 other non-interactive digital streaming services).77 While not disputing that these types of noninteractive services are exploiting Pre1972 Sound Recordings, Public Knowledge and others propose excluding non-interactive services ‘‘because they are not usefully searchable for specific tracks.’’ 78 But 74 SoundExchange Initial at 2. Knowledge Reply at 10 (citing 17 U.S.C. 1401(c)(1)(A)(ii)). 76 SoundExchange Initial at 2–3 (‘‘[R]ights owners and their representatives made a conscious choice to register with SoundExchange and submit their repertoire metadata to allow them to be paid for uses of their works under the statutory licenses and direct licenses administered by SoundExchange.’’). 77 See SoundExchange, Who Pays SoundExchange: Q3 2018, https:// www.soundexchange.com/wp-content/uploads/ 2016/09/2018-Jan-Sept-Licensee-List.pdf. 78 Public Knowledge Initial at 6; see also EFF Initial at 4 (proposing to exclude ‘‘services like Pandora and Sirius XM’’ because they ‘‘do not offer granular searches for particular recordings’’ but supporting a potential search requirement of music distribution services that supply works to such services); cf. Recording Academy Reply at 3 (‘‘Excluding entirely non-interactive services that utilize the Section 114 statutory license would immediately render a search to determine if a track 75 Public PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 unlike other parts of the copyright law, the reference to ‘‘services’’ in section 1401(c) does not distinguish between non-interactive and ‘‘interactive services.’’ 79 Given the acknowledged commercial exploitation on noninteractive services, it seems reasonable for a good faith search to cover this broader array of services. Second, this database appears to offer user friendly and granular results available for these recordings. Using the lookup tool is free, without requiring the user to establish an account, take a subscription, or convey any personal information.80 It also apparently receives high marks regarding search confidence and ease, employing fuzzy matching and wildcard searching that a broad spectrum of commenters concur is helpful in gauging the accuracy of results.81 Third, the information in the ISRC database is populated and verified by rights owners themselves, allaying concerns that inaccurate information may lead prospective users astray.82 The uneven quality of publicly accessible music repertoire data is well-documented and indeed, an animating issue that the Music Modernization Act seeks to address in the context of the section 115 license.83 As SoundExchange attests, ‘‘even when SoundExchange learns is being commercially exploited both unreasonable and in bad faith.’’). 79 Compare 17 U.S.C. 1401(c)(1), (3) with 17 U.S.C. 114(d)(2)–(3), (e)(2) (j)(6)–(7) (various provisions distinguishing between interactive and non-interactive services). 80 See Public Knowledge Initial at 6 (advocating ‘‘free-to-search’’); EFF Initial at 4 (sources should be ‘‘searchable without a paid subscription, and without requiring users to disclose personal information’’); Wikimedia Foundation at 5 (same). 81 See, e.g., Wikimedia Foundation at 5 (discussing potential ‘‘deficiencies in the searchability of the specified databases,’’ such as errors or ‘‘the presence of absence of ‘the’ in names or titles’’); EFF Initial at 3 (search results are limited by characteristics of the software as well as search terms used); Internet Archive Initial (stressing importance of ‘‘high quality’’ searches); A2IM & RIAA at 2 (importance of fuzzy matching and wildcard searching); Copyright Alliance Initial at 4 (same regarding Office’s database). 82 See, e.g., Internet Archive Initial at 2 (expressing concern that Spotify database includes ‘‘unlicensed’’ recordings); Public Knowledge Reply at 11 (objecting to YouTube being included in search steps as unlicensed content is not ‘‘by or under the authority of the rights holder’’; expressing concerns about resale or imported physical media). 83 See U.S. Copyright Office, Copyright and the Music Marketplace 184 (2015), https:// www.copyright.gov/policy/musiclicensingstudy/ copyright-and-the-music-marketplace.pdf; H.R. Rep. No. 115–651 at 8 (‘‘Music metadata has more often been seen as a competitive advantage for the party that controls the database, rather than as a resource for building an industry on’’; noting that the database required by the legislation will include a variety of sound recording information); see also SoundExchange Initial at 43 (‘‘Many digital music services operating under the statutory licenses have (or at least report to SoundExchange) very low quality data identifying the recordings they use.’’). E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules from a service of a putative recording not represented in its repertoire database, SoundExchange will not reflect the recording in its repertoire database unless identifying information for the recording is provided by the rights owner or authorized representative of the rights owner.’’ 84 The Office does not read section 1401(c) so narrowly as to preclude searching resources—such as the SoundExchange ISRC lookup tool or major search engines—that are used ‘‘to determine whether’’ a Pre-1972 Sound Recording is being commercially exploited on services offering a comprehensive set of sound recordings for sale or streaming.85 Such crossplatform tools can quickly reveal information relevant to whether a recording is being used on a variety of services that are unequivocally involved in commercially exploiting the sound recordings, but of which the Office does not propose searching for purposes of this safe harbor, as noted further below. To exclude reliance upon these sources would hamper the Office’s ability to craft a smaller list of ‘‘specific, reasonable steps’’ that a user may take before filing a NNU.86 Requiring a prospective user to search the ISRC lookup tool is thus expected to serve as a reasonable proxy for searches on a wide array of services that offer a comprehensive set of sound recordings for sale or streaming, and specifically, to address stakeholder concerns (from both the prospective user and rights owner perspectives) that it is otherwise difficult to determine exploitation by non-interactive services that offer limited user search capability.87 5. Searching Sellers of Physical Product Fifth, the proposed rule asks the user to search for the Pre-1972 Sound Recording on at least one major seller of physical product, namely Amazon.com, and if the user reasonably believes that the sound recording is of a niche genre such as classical music (including opera) or jazz, one smaller online music store offering recordings in that niche whose repertoires are searchable online, namely: ArkivJazz, ArkivMusic (classical), Classical Archives, or Presto (classical). Users of works in other genres are encouraged but not required 84 SoundExchange Initial at 4. U.S.C. 1401(c)(1)(A) (emphasis added). 86 Cf. Public Knowledge Initial at 2, 6 (suggesting search requirements should be ‘‘proportional’’). 87 See 17 U.S.C. 1401(c)(1)(A); (3). Compare Copyright Alliance Reply at 2–3; FMC Reply at 4; and Recording Academy Reply at 3 (expressing concerns related to rights owner interests) with EFF Initial at 4 and Public Knowledge Initial at 2 (expressing concerns related to user perspectives). 85 17 VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 to search Acoustic Sounds or Smithsonian Folkways Recordings (e.g., international or ‘‘world’’ music, zydeco, folk, spoken word).88 The Office invites public comment on whether, in addition to classical music and jazz, there are specific niche genres of Pre-1972 Sound Recordings that similarly should require the user to search another online music service offering a comprehensive set of recordings in that niche—and if so, to identify the specific sources to be searched. The Office agrees that it is appropriate to limit safe harbor requirements to search for physical products to internet searches,89 but finds it important that a good faith, reasonable search be calculated to include ‘‘services offering a comprehensive set of sound recordings for sale,’’ 90 as some works may be less available on streaming services, but are nonetheless being commercialized in physical formats, including reissues.91 Although Public Knowledge and IMSLP.ORG express concern that sales of physical copies include second-hand sales, as opposed to commercial exploitation by the copyright owner,92 physical retailers typically indicate whether the products are new or used, and others note the robust market for newly reissued albums.93 For example, a search for ‘‘Faith and Grace’’ by The Staple Singers on Amazon.com allows users to purchase both new and used compact discs with that sound recording.94 88 The proposed rule thus collapses steps 8 and 9 as proposed by A2IM & RIAA, that is, searches of retailers of physical product and niche services. Compare A2IM & RIAA Initial at 6. The record and the Office’s observations suggest that the universe of niche digital-only sites is small, focused on classical music, and likely to overlap with searches of retailers of physical product. 89 EFF Initial at 4 (‘‘The Office should not require that potential users search for commercialization of physical copies of recordings unless records of such commercialization are searchable on the internet or in the Office’s pre-1972 schedules.’’). 90 17 U.S.C. 1401(c)(1)(ii) (emphasis added). 91 See, e.g., FMC Reply at 3 (providing example of recordings by The Staple Singers which are readily available as a box set via Amazon.com or Discogs.com, and easily located by a simple search engine search, but which are unavailable on Spotify or Apple Music). 92 Public Knowledge Initial at 7; Public Knowledge Reply at 11; IMSLP.ORG Reply at 1. 93 See FMC Reply at 6. FMC contends that Public Knowledge ‘‘overstates the difficulty of discerning whether physical media is made available by authorization of the rightsholder—the risk of a false positive is small when every physical retailer classifies its products as new or used.’’ Id. at 4. Indeed, although Public Knowledge raises the issue of items being offered for resale ‘‘new’’ a/k/a in original shrink wrap packaging, its own example suggests that ‘‘further inspection’’ can typically clarify whether an item is being offered for first sale, or resale. Public Knowledge Reply at 12. 94 Faith and Grace: A Family Journey 1953–1976, Amazon (last visited Jan. 28, 2019), https:// PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 1667 6. Searches for Ethnographic Pre-1972 Sound Recordings At the reply comment stage, concerns regarding the noncommercial use of ethnographic Pre-1972 Sound Recordings were raised by the National Congress of American Indians (‘‘NCAI’’), the oldest and largest national organization made up of Alaska Native and American Indian tribal government, and Professors Trevor Reed, Jane Anderson, and Robin Gray, who have worked on legal and cultural issues surrounding pre-1972 ethnographic sound recordings. NCAI asserts that ‘‘[t]he lack of complete and accurate information typically available on copyright interests in ethnographic sound recordings, and the cultural sensitivity of the contents of many ethnographic sound recording collections, merits consideration of special opt-out rules carefully tailored to the specific needs of Native American communities.’’ 95 As NCAI explains further: Often such recordings are the result of anthropological or ethnographical gatherings of sound recordings, frequently capturing ceremonial or otherwise culturally significant songs. Further, due to the circumstances of how these recordings were conducted—often without any documentation of the free and prior informed consent of the tribal practitioners/performers—tribes today are unaware of much of the content that they potentially hold valid copyright claims over.96 Similarly, Professors Reed, Anderson, and Gray explain that ‘‘scholars have extensively documented the inequalities and ethical dilemmas surrounding early ethnographic field recording,’’ claiming that ‘‘ownership interests in pre-1972 ethnographic sound recordings are presumed to have vested in and remained with the performers who recorded them under the common-law rule,’’ but that unrelated holding institutions (e.g., libraries, archives, museums, and universities) typically possess the master recordings.97 Those professors suggest that regulations governing the noncommercial use exception under section 1401(c) ‘‘must be carefully tailored to the informational disadvantages Native American tribes and tribal members face as they attempt to locate and protect their rights to www.amazon.com/gp/product/B015FWTAOO?pf_ rd_p=c2945051-950f-485c-b4df-15aac5223b10&pf_ rd_r=QFZRHA19C97VBPY81EGB; FMC Reply at 3 (noting availability of ‘‘Faith and Grace’’ on a compact disc set, but not on Spotify or Apple Music). 95 NCAI Reply at 1. 96 Id. 97 Reed, Anderson & Gray Reply at 2. E:\FR\FM\05FEP1.SGM 05FEP1 1668 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules ethnographic sound recordings.’’ 98 Specifically, they maintain that for pre1972 Native American ethnographic recordings, ‘‘a user should not qualify for the [section 1401(c)] safe harbor unless the relevant Native American tribe or tribes has certified the identity of the sound recording, its owner(s), and its current commercial uses.’’ 99 The Copyright Office is sensitive to the need to ensure that regulations governing the noncommercial use of Pre-1972 Sound Recordings do not adversely impact Alaska Native and American Indian tribes or communities. The Office has previously noted that ethnographic field recordings ‘‘are an enormous source of cultural and historical information, and come with their own unique copyright issues,’’ 100 and that ‘‘librarians and archivists who deal with ethnographic materials must abide by the cultural and religious norms of those whose voices and stories are on the recordings.’’ 101 The Office appreciates that the public ownership record for these recordings may be less developed and/or indexed into major search engines, and that as a result, searches that are otherwise reasonable for a prospective user may fail to identify that a specific ethnographic recording is being commercially exploited by the rights owner. But the Office must also be careful not to exceed its regulatory authority, by, for example, imposing a requirement that the user obtain certification of the identity of the sound recording and its owner before making use of the safe harbor.102 Accordingly, for ethnographic Pre1972 Sound Recordings of Alaska Native or American Indian tribes or communities, if the user does not locate the relevant sound recording in the Copyright Office’s database of Pre-1972 Schedules or other search categories, the proposed rule asks the user to contact the Alaska Native or Native American tribe and, if known to the user, the relevant holding institution to aid in determining whether the sound recording is being commercially exploited.103 Specifically, the rule 98 Id. at 3. at 4. 100 U.S. Copyright Office, Federal Copyright Protection For Pre-1972 Sound Recordings 52 (2011), https://www.copyright.gov/docs/sound/pre72-report.pdf (‘‘Pre-1972 Sound Recordings Report’’). 101 Id. at 61 (citing Rob Bamberger and Sam Brylawski, Nat’l Recording Preservation Board of the Library of Congress, The State of Recorded Sound Preservation in the United States: A National Legacy at Risk in the Digital Age 19 (2010)). 102 Compare Reed, Anderson & Gray Reply at 4. 103 See id. at 2 (suggesting that the marketplace lacks ‘‘inaccurate and unreliable information about these sound recordings,’’ necessitating tribal 99 Id. VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 proposes that the user make contact by using contact information known to the user if applicable, and also by using the contact information provided in NCAI’s tribal directory.104 If no information is listed or the tribe is unknown to the user, the user should contact NCAI itself. The Office believes that this search step is a reasonable burden to ask prospective users of such expressions of cultural heritage in light of the complicated history of some of these sound recordings. The Office also expects that the notification requirement will prove useful to rights owners who wish to exercise discretion to opt out of the noncommercial use by filing notice in the Copyright Office.105 The Copyright Office appreciates that these issues are nuanced and is committed to addressing them in a sensitive and thoughtful manner. The Office acknowledges that these comments were received in the reply comment stage, without opportunity for further comment. Because the Office must timely promulgate a rule for the safe harbor to be available to prospective users of all types of Pre1972 Sound Recordings,106 interested parties are encouraged to submit written comments or contact the Office for a meeting to discuss this provisional aspect of the proposed rule. ii. Sources Not Required To Be Searched The proposed rule is intended to be accurate and comprehensive, while minimizing redundancy. In proposing a list of ‘‘specific, reasonable’’ steps, the Office declines to add some additional search steps or services proposed by some commenters. Among suggestions received, the rule does not propose to include: • Additional comprehensive streaming services beyond the one the user elects to search from the proposed rule’s list of services • Terrestrial or internet radio services, including non-interactive services subject to the section 114 license 107 • The to-be-created Mechanical Licensing Collective database 108 consultation). For example, the professors’ comment suggests that making contact may be valuable to provide title, artist, or other information relevant to a particular recording. 104 See Tribal Directory, Nat’l Cong. of Am. Indians (last visited Jan. 28, 2019), http:// www.ncai.org/tribal-directory (providing searchable directory by tribe name, area, and keyword). 105 See 17 U.S.C. 1401(c)(1)(C). 106 Id. at 1401(c)(3). 107 As noted above, this conclusion is based, in part, on the proposal to include the SoundExchange ISRC lookup tool in the proposed rule. 108 Although the Office is open to revisiting the relevance of the MLC database once it is up and running, it is disinclined to ask rights owners to PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 • Dogstar Radio, which offers searchable playlists from Sirius XM • Online databases of U.S. performing rights organizations • Other comprehensive databases offered by private actors (e.g., Songfile, Rumblefish, Songdex, Cuetrak, Crunch Digital) • IMDB.com • Video streaming services • The SXWorks NOI Tools • Music distribution services (e.g., CDBaby, Tunecore) • Predominantly foreign music services 109 • SoundCloud or Bandcamp • Niche streaming services (e.g., Idagio, Primephonic) Notably, the proposed rule does not ask the user to search services based on the commercial exploitation of usergenerated content, such as YouTube. Commenters IMSLP.ORG and Public Knowledge maintain that a search should not include services permitting user-uploaded content because such services include unauthorized uses of Pre-1972 Sound Recordings, which do not constitute commercial exploitation ‘‘by or under the authority of the rights owner’’ as required by section 1401(c)(1)(A).110 By contrast, Recording Academy contends that Congress contemplated searching on services with user-uploaded streaming platforms.111 The Office agrees that a good faith, reasonable search should be targeted at locating authorized instances of commercial exploitation, and the provide ‘‘the hashes, with APIs, of all pre-72 sound recordings indexed’’ into the database. Music Library Association Initial at 1; see also A2IM & RIAA Initial at 5 (suggesting database should be searched sans hashes). Other commenters have explained in more detail the difficulty with this request, and overall the Office agrees that the Music Library Association’s proposal is opaque and beyond the scope of this rulemaking. See A2IM & RIAA Reply at 4; Copyright Alliance Reply at 2; FMC Reply at 2. 109 See Find Music Services, Pro Music, https:// pro-music.org/legal-music-services.php (last visited Jan. 28, 2019); see also A2IM & RIAA Initial at 6; IFPI Initial at 1–2; Public Knowledge Reply at 2 (all discussing same). 110 IMSLP.ORG Reply at 2 (‘‘services permitting user-uploaded content without any mandatory service-side verification of copyright ownership’’ such as YouTube ‘‘should be categorically excluded’’ from noncommercial use searches under section 1401(c)); Public Knowledge Reply at 11 (maintaining that because websites like YouTube display a combination of licensed and unlicensed media, a sound recording’s ‘‘availability on that platform may not be reliable evidence of the recording being commercially exploited ‘by or under the authority of the rights owner’ as required by § 1401(c)(1)(A)’’). 111 Recording Academy Reply at 4 & n.5 (citing Conf. Rep. at 25) (‘‘it is important that a user seeking to rely on subsection (c) make a robust search, including user-generated services and other services available in the market at the time of the search’’). E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules presumptive difficulty for online service providers to predetermine whether content is authorized by a rights owner is inherent to the section 512 safe harbor, which limits liability for such services displaying user-uploaded infringing content.112 Because a user conducting a section 1401(c) search on a service permitting user-uploaded content may have no way of knowing if the use of a Pre-1972 Sound Recording is ‘‘by or under the authority of the rights owner,’’ 113 the proposed rule does not require the user to search on a service permitting user-uploaded content. As discussed above, the proposed rule aims to strike a balance between the reasonableness and comprehensivity of the search for this particular subset of works, and can be updated as market conditions warrant. The Office believes that the proposed steps, including the requirement to search major search engines, which may index some of the information contained in the above services, will result in identifying a vast amount of the Pre-1972 Sound Recordings being commercially exploited at the time searches are conducted. If a rights owner is concerned about recordings being overlooked, the Office encourages the filing of a Pre-1972 Schedule and/or monitoring the filing of NNUs for the opportunity to opt out of a particular requested noncommercial use. Likewise, in commenting on the proposed rule, it would be helpful for user-oriented groups to acknowledge that a list of specific steps should be reasonably calculated to identify recordings being commercially exploited, even where this entails added searching steps of the prospective user.114 The Office does not believe the proposed rule to be unwieldly from the user perspective. Moreover, while the statute is very clear that following this closed-list of steps is sufficient to qualify for the safe harbor,115 the proposed rule does not intend to discourage users from taking additional steps that they believe may be fruitful in identifying commercial exploitation of a 112 See 17 U.S.C. 512. To pick but one example, a YouTube search of ragtime and early jazz pianist ‘‘Jelly Roll Morton’’ yielded a long scroll of hits featuring his sound recordings, and spot checks did not indicate whether any were authorized, without further refining the search criteria to incorporate record labels or album titles readily identifiable from searching the SoundExchange ISRC lookup tool or Amazon.com. YouTube, https:// www.youtube.com/results?search_ query=%E2%80%9CJelly+Roll+Morton %E2%80%9D+ (last visited Jan. 29, 2019). 113 Id. at 1401(c)(1)(A). 114 See id. at 1401(c)(1), (3). 115 Id. at 1401(c)(4)(B). VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 given Pre-1972 Sound Recording, or in locating the rights owner to negotiate a permissive use, including by searching these additional sources identified by commenters. iii. Search Terms and Strategy 1. General Rule In general, the proposed rule asks a user to search on the title and featured artist(s) of the Pre-1972 Sound Recording in the various search categories. If the user knows any of the following attributes of the Pre-1972 Sound Recording, and the source has the capability for the user to search any of the following attributes, the user must also search: Alternate artist name(s), alternate title(s), album title, and the International Standard Recording Code (‘‘ISRC’’). The user may also optionally search any other attributes known to the user of the sound recording, such as label, version, or Universal Product Code (‘‘UPC’’). Narrowing a search by these attributes may inform a user’s good faith, reasonable determination whether or not a Pre-1972 Sound Recording is being commercially exploited.116 Because ‘‘year’’ may refer to year of a record’s release or re-release, rather than year of recording, the proposed rule does not require searching this attribute. 2. Classical Music Sound Recordings Because classical music sound recordings require more information to sufficiently identify the sound recording, the proposed rule requires the user to search on additional attributes for those types of sound recordings. For example, the same conductor could have conducted Beethoven’s Symphony No. 9 on multiple occasions, with the same or different orchestras. Even to the trained ear (or database),117 distinguishing between sound recordings of those various performances may well be impossible without knowing the musical work’s composer and opus, the conductor, the performers (e.g., orchestra), and year of performance. Indeed, as with Beethoven’s Symphony No. 9, the composer and opus effectively function as the work’s title; the closest simile to a ‘‘featured artist’’ may be the conductor, featured performers, or ensemble, depending 116 See EFF Initial at 3. e.g., What Type of Music Can Shazam Identify, Shazam, https://support.shazam.com/hc/ en-us/articles/204462958-What-type-of-music-canShazam-identify- (last visited Jan. 28, 2019) (‘‘Classical tracks can be recorded many times over by various artists, so it can sometimes be tricky for Shazam to tell the different versions apart.’’). 117 See, PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 1669 upon the work.118 Accordingly, the proposed rule requires the user to search on these additional attributes when trying to determine whether a Pre1972 Sound Recording of classical music is being commercially exploited. The Office invites public comment on whether other, specific genres of sound recordings (e.g., jazz) similarly can be reasonably expected to require searching additional terms to identify the sound recording sufficiently—and if so, what those additional attributes should be. 3. Remastered Pre-1972 Sound Recordings As noted below, prospective users must certify that they have conducted a good faith, reasonable search when filing NNUs. While the Office will not examine for a NNU’s legal validity, it suggests that should the user find a ‘‘remastered’’ version of a Pre-1972 Sound Recording through searching in any of the categories listed in the proposed rule, such a finding likely evidences commercial exploitation of the Pre-1972 Sound Recording. The Office has previously noted that ‘‘remastering’’ a sound recording may consist of mechanical contributions or contributions that are too minimal to be copyrightable.119 For example, it would be prudent for a user to consider a 1948 track that was remastered and reissued in 2015 to qualify as a Pre-1972 Sound Recording. iv. Other Considerations 1. Searches for Foreign Pre-1972 Sound Recordings Stakeholders question whether the section 1401(c) exception applies to foreign Pre-1972 Sound Recordings (i.e., Pre-1972 Sound Recordings originating outside the United States). EFF contends that the section 1401(c) exception does apply, ‘‘as nothing in the extensive and detailed language of the MMA authorizes such a carve-out.’’ 120 A2IM and RIAA appear to agree, contending that a search under section 1401(c) should include ‘‘leading digital 118 See, e.g., Anastasia Tsioulcas, Why Can’t Streaming Services Get Classical Music Right?, NPR The Record (June 4, 2015, 10:50 a.m.), https:// www.npr.org/sections/therecord/2015/06/04/ 411963624/why-cant-streaming-services-getclassical-music-right (describing the metadata conundrum in classical music and difficulty searching streaming services); ArkivMusic, http:// www.arkivmusic.com/classical/main.jsp (last visited Jan. 28, 2019) (listing search categories of composers, conductors, performers, ensembles, labels, operas, and medium of physical product). 119 U.S. Copyright Office, Compendium of U.S. Copyright Office Practices sec. 803.9(F)(3) (3d ed. 2017) (‘‘Compendium (Third)’’). 120 EFF Reply at 5. E:\FR\FM\05FEP1.SGM 05FEP1 1670 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules services in relevant foreign countries including the country of origin or countries where the work is most popular, to the extent those services are accessible from the U.S.’’ 121 By contrast, IFPI maintains that the Office should clarify that the section 1401(c) exception applies only to foreign sound recordings that have ‘‘previously been exploited commercially in the US, thereby establishing a nexus between the US and the rightholder(s) in question.’’ 122 Prior to the enactment of the MMA, certain foreign Pre-1972 Sound Recordings were already granted copyright protection in the United States.123 In 1994, the Uruguay Round Agreements Act (‘‘URAA’’) amended section 104A to automatically restore U.S. copyright protection to certain foreign works that had been in the public domain in the United States due to lack of copyright protection for Pre1972 Sound Recordings more generally.124 While copyright is restored automatically in eligible works, the owner of a restored work must notify reliance parties if they plan to enforce those rights, including constructively by filing a notice of intent to enforce with the Copyright Office.125 The MMA revised section 301(c), which now states that ‘‘[n]otwithstanding the provisions of section 303, and in accordance with [section 1401], no sound recording fixed before February 15, 1972, shall be subject to copyright under [title 17].’’ 126 But section 1401 and the legislative history do not reference foreign recordings specifically, or refer to or revise section 104A, and there is no evidence of congressional intent to extinguish copyright protection granted to foreign Pre-1972 Sound Recordings under section 104A.127 Section 1401 provides sui generis protection running parallel to any copyright protection afforded to foreign Pre-1972 Sound Recordings under 121 A2IM & RIAA Initial at 6. 122 IFIP Initial at 2. 123 17 U.S.C. 104A(a), (h)(6)(C). 124 Id. at 104A(a), (h)(6)(C)(ii) (referencing ‘‘sound recordings fixed before February 15, 1972’’). 125 See U.S. Copyright Office, Circular 38B: Copyright Restoration Under the URAA, https:// www.copyright.gov/circs/circ38b.pdf. 126 17 U.S.C. 301(c). 127 In comparison, to minimize concerns regarding any ‘‘takings’’ of property under the Fifth Amendment under section 104A, Congress included provisions to protect the interests of parties who had relied on the loss of copyright protection for such works before enactment of the URAA (i.e., ‘‘reliance parties’’). See id. at 104A(d)(2), (h)(4). VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 section 104A.128 While section 1401(c) operates as a limitation on the protection available under that new chapter, it does not explicitly limit title 17 copyright protection for certain foreign restored works (i.e., copyright protection under section 104A). Whether the noncommercial use exception under section 1401(c) can immunize content actionable under title 17 for restored works that are foreign Pre-1972 Sound Recordings may ultimately be a matter for the courts to resolve. Because protection and enforcement for foreign restored rights is fact-intensive—implicating the specific source country, date and location of publication, duration of term in both the United States and the source country, and compliance with formalities—prospective users of foreign Pre-1972 Sound Recordings should proceed cautiously before relying on the section 1401(c) exception. 2. Reliance on Third-Party Searches Stakeholders disagree as to whether a user may rely on searches conducted by third parties to meet the good faith, reasonable search requirement under section 1401(c). ARSC and EFF contend that users should be able to rely on previous searches conducted for a Pre1972 Sound Recording when filing an NNU to avoid ‘‘duplicated effort’’ 129 and ‘‘nothing but make-work.’’ 130 By contrast, Copyright Alliance, A2IM, RIAA, and FMC maintain that users relying on searches of other users could create blanket exceptions of noncommercial use.131 The Office agrees that reliance on a third-party search, unless the third party conducted the search as the user’s agent, is not reasonable. The third party may have conducted an inadequate search and incorrectly concluded that a Pre1972 Sound Recording is not being commercially exploited. Or, as noted by A2IM and RIAA, a Pre-1972 Sound Recording may become subject to commercial exploitation after a third party has conducted a search, but before 128 See Conf. Rep. at 15 (discussing sui generis of chapter 14); see also IFPI Initial at 1–2 (discussing foreign Pre-1972 Sound Recordings). 129 ARSC Reply at 4. 130 EFF Reply at 4. 131 Copyright Alliance Initial at 3 (‘‘[A] notice of noncommercial use for a particular pre-72 sound recording should not create a blanket exception for all future noncommercial uses of that sound recording.’’); A2IM & RIAA Reply at 9 (‘‘Congress never envisioned that the index of NNUs would operate as a de facto database of recordings available for noncommercial uses pursuant to the new safe harbor.’’); FMC Reply at 2 (‘‘[W]e see no justification for the suggestion that ‘if a search has been done within a certain time frame, it does not have to be repeated’ . . . ’’ (quoting Music Library Association Initial at 2)). PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 another user desires to use the same sound recording for a noncommercial use under section 1401(c).132 As noted below, a user will be required to certify that she conducted a good faith, reasonable search when submitting an NNU, and a user cannot certify the actions of an unrelated third party. Accordingly, the proposed rule does not permit a user to rely on a search conducted by a third party, unless the third party conducted the search as the user’s agent. 3. Timing of Completing a Search Before Filing an NNU To ensure that search results are not stale, the proposed rule states that the user (or the user’s agent) must conduct a search under section 1401(c) within 90 days before submitting an NNU with the Office.133 The Music Library Association asserts that if a search has been conducted within a certain timeframe, the search should not have to be repeated.134 The Office agrees, and believes that 90 days is a reasonable timeframe for a search to remain fresh.135 Accordingly, a user may rely on a search for a Pre-1972 Sound Recording that she (or her agent) has conducted for 90 days before submitting an NNU proposing a noncommercial use of the same sound recording. B. Notices of Noncommercial Use (NNUs) i. Form and Content of NNUs 1. Overview of Proposed Rule Commenters offer various proposals on information to be required in NNUs, particularly regarding the level of detail required to describe the good faith, reasonable search and the proposed noncommercial use. Regarding the search, Copyright Alliance, A2IM, and RIAA maintain that the user should be required to describe and certify the steps taken for a search of the Pre-1972 Sound Recording in the NNU,136 whereas the Music Library Association contends that a user should just have to 132 A2IM & RIAA Reply at 9. A2IM & RIAA Initial at 21 (contending search must be conducted within 90 days of filing an NNU to be reasonable); Copyright Alliance Initial at 6 (same). Public Knowledge suggests that an even earlier period of 30 days would be reasonable. Public Knowledge Initial at App. 134 Music Library Association Initial at 2. 135 Ninety days is also the timeframe that a rights owner filing a Pre-1972 Schedule must wait before bringing an action for statutory damages or attorneys’ fees, 17 U.S.C. 1401(f)(5)(A)(i)(II), and the timeframe a rights owner has to object to a proposed noncommercial use, id. at 1401(c)(1)(C). 136 A2IM & RIAA Initial at 21 (contending that user should provide ‘‘a certified step-by-step account of all sources searched and the precise search terms used’’); Copyright Alliance Initial at 6. 133 See E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules state that she conducted a good faith search and found no commercial exploitation.137 In addition, stakeholders disagree on whether the user should be required to document her search, such as by submitting screen shots from searched websites.138 Copyright Alliance, A2IM, and RIAA also suggest that users should be required to certify their filings under penalty of perjury.139 Regarding the proposed use of a Pre1972 Sound Recording, Copyright Alliance, A2IM, and RIAA state that the user must sufficiently identify the Pre1972 Sound Recording she wishes to use and the nature of the proposed use.140 A2IM and RIAA note that without this information, ‘‘it is impossible for rights owners to exercise their opt-out right in any meaningful way.’’ 141 By contrast, EFF and Public Knowledge assert that the user should not have to provide a detailed description of the proposed use.142 EFF and Public Knowledge also suggest that the Office should allow users to combine multiple notices of noncommercial use into a single filing, as well as opt-out notices directed to the same potential user.143 After duly considering all of the public comments, the rule proposes to 137 Music Library Association Initial at 1. Copyright Alliance Initial at 6 (user should be required to document the search); IMSLP.ORG Reply at 1 (same); A2IM & RIAA Initial at 21 (same); with Public Knowledge Reply at 14 (section 1401(c) does not require documentation of the search for the safe harbor to apply); EFF Reply at 4 (same); Wikimedia Foundation Reply at 3 (any documentation only becomes relevant if the adequacy of the search comes into dispute); see also FMC Reply at 5 (requiring a user to upload screenshots is an ‘‘inelegant solution’’). 139 A2IM & RIAA Initial at 21; Copyright Alliance Initial at 6. 140 A2IM & RIAA Initial at 17–19; Copyright Alliance Initial at 6. Copyright Alliance, A2IM, and RIAA also suggest that the user should identify whether there is another work embodied within the Pre-1972 Sound Recording, and if so, whether the user has a license to use that work. See A2IM & RIAA Initial at 20 & n.26; Copyright Alliance Initial at 6 & n.8. Because the noncommercial use exception does not extend to the underlying musical, literary, or dramatic work, which may require separate clearance, users are of course not required to identify underlying works embodied within the Pre-1972 Sound Recording, but may include such information, including whether they have secured permission to use such works, to aid the rights owner in considering how to respond to a NNU. See A2IM & RIAA Initial at 20 & n.26. 141 Id. at 17. 142 EFF Initial at 5–6 (‘‘[R]equiring detailed descriptions of a use would invite future legal disputes over whether a use has exceeded the language of its description.’’); Public Knowledge Reply at 15 (user should be required to provide only the ‘‘basic facts which a non-sophisticated user can reasonably be expected to have on hand’’; rightsholders may ask for clarification of proposed uses where descriptions are vague or otherwise insufficient). 143 EFF Reply at 4; Public Knowledge Reply at 16. 138 Compare VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 include a mix of required and optional information to establish a baseline of information that will be deemed sufficient for purposes of meeting the regulatory filing requirements, while encouraging users to provide additional descriptive material that may aid in the ensuing determination whether a Pre1972 Opt-Out Notice is filed. Specifically, the proposed rule requires the user to provide: 1. The user’s full legal name, and whether the user is an individual person or corporate entity, including whether the entity is a tax-exempt organization as defined under the Internal Revenue Code; 2. The title and featured artist(s) of the Pre-1972 Sound Recording desiring to be used; 144 3. If known, the alternate artist name(s), alternate title(s), album title, and ISRC; and 4. A description of the proposed noncommercial use, including a summary of the project and its purpose, how the Pre-1972 Sound Recording will be used in the project, and when and where the proposed use will occur (i.e., the term and U.S.-based territory of the use). The prospective user should describe the proposed use clearly and accurately, with enough detail to provide the rights owner with enough information to meaningfully evaluate the use.145 The proposed categories comprise commonsense information, and the prospective user has flexibility in the description of the proposed use.146 To aid filers, the Office’s form or instructions may include exemplar descriptions of the proposed use. As discussed further below, while the proposed rule does not define ‘‘noncommercial’’ for purposes of this filing, the Office’s form, instructions, and other material will be intended to aid individuals in determining how a desired use is likely to relate to the exception for noncommercial uses. Further recognizing that some NNUs are likely to be filed by individuals or smaller noncommercial entities with limited expertise with copyright licensing, the Office’s form will also 144 As noted above, classical music metadata raises unique issues. For such proposed uses, the prospective user should include information that is similar to the attributes the user is asked to search upon for title and featured artist(s) before claiming the statutory safe harbor. 145 See, e.g., A2IM & RIAA Initial at 18–19; EFF Initial at 5 (both in general accord). 146 For example, a user may describe an ‘‘unlimited’’ term of use, throughout the United States, or a more limited use, such as a particular high school’s spring dance recital. A user may also specify whether a webinar will be live-streamed over the internet and/or archived. PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 1671 provide cues for users to provide additional optional information that is commonly helpful in licensing transactions, such as spaces for title of the project, the playing time of the Pre1972 Sound Recording to be used as well as total playing time, description of corresponding visuals in the case of audiovisual uses, and whether and how the user will credit the sound recording title, featured artist, and/or rights owner in connection with the project.147 The user may also opt to include additional information about the Pre-1972 Sound Recording as permitted by the Office’s form or instructions, such as the year of release and version. Similarly, to increase the likelihood of a user receiving timely notification of a rights owner’s decision to opt out of a proposed noncommercial use, the proposed rule allows a user to include an email address to which a rights owner may contact the user to obtain more information, or to send a copy of the Pre-1972 Opt-Out Notice in addition to filing a Pre-1972 Opt-Out Notice with the Copyright Office. In addition, the proposed rule states that an NNU may not include a proposed use for more than one Pre1972 Sound Recording unless all of the sound recordings include the same featured artist and were released on the same pre-1972 album or unit of publication.148 The Office recognizes that, for efficiency, users desiring to make noncommercial use of multiple Pre-1972 Sound Recordings from the same album would prefer to file a single NNU in all cases.149 The Office also recognizes, however, that multiple rights owners may own the various Pre1972 Sound Recordings in the NNU— and that consequently, multiple rights owners may desire to file Pre-1972 OptOut Notices in response to the same NNU. In such circumstances, it may be difficult for rights owners as well as prospective users to evaluate opt-outs to proposed noncommercial uses. Finally, the proposed rule also requires the individual submitting the NNU to certify that she has appropriate 147 See A2IM & RIAA Initial at 19 (proposing these fields, but on a required basis). 148 A ‘‘unit of publication’’ exists where multiple works are physically bundled or packaged together and first published as an integrated unit. U.S. Copyright Office, Circular 34: Multiple Works, https://www.copyright.gov/circs/. 149 Indeed, the Office permits applicants to register a claim to copyright for sound recordings on the same album in certain circumstances. See, e.g., 37 CFR 202.3(b)(4)(i)(A) (allowing applicants to register multiple sound recordings as well as accompanying text and artwork as a ‘‘unit of publication,’’ if they are owned by the same claimant, were physically packaged or bundled together, and if all of the recordings were first published together as that integrated unit). E:\FR\FM\05FEP1.SGM 05FEP1 1672 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules authority to submit the NNU, that the user desiring to make noncommercial use of the Pre-1972 Sound Recording (or the user’s agent) conducted a good faith, reasonable search within the last 90 days without finding commercial exploitation of the sound recording, and that all information submitted to the Office in the NNU is true, accurate, and complete to the best of the individual’s knowledge, information, and belief, and is made in good faith. Such requirements mimic certification requirements in a wide variety of other filings administered by the Copyright Office.150 The proposed rule does not require users to submit documentation of their searches, but the Office encourages users to keep records of their searches in case they come into dispute. 2. Determining Whether a Use Is Noncommercial The section 1401(c) exception applies only to noncommercial uses of Pre-1972 Sound Recordings.151 Although section 1401(c) does not define ‘‘noncommercial,’’ it does state that ‘‘merely recovering costs of production and distribution of a sound recording resulting from a use otherwise permitted under [section 1401(c)] does not itself necessarily constitute a commercial use,’’ 152 and ‘‘the fact that a person engaging in the use of a sound recording also engages in commercial activities does not itself necessarily render the use commercial.’’ 153 The Conference Report further states that ‘‘the concept of noncommercial use should be understood in the same way as under other provisions of title 17, such as section 107, and includes uses such as teaching, scholarship and research.’’ 154 Although other parts of title 17 refer to ‘‘commercial’’ or ‘‘non-commercial’’ uses, nowhere in the statute are they defined.155 150 See id. at § 201.4(c)(4) (recorded documents generally), § 201.10(f)(1)(i) (notices of termination of transfer and licenses), § 201.11(e)(9)(iii)(E) (satellite and cable statements of account), § 201.35(d)(2) (submission of Pre-1972 Schedules), § 201.36(d)(4) (submission of notices of contact information for transmitting entities publicly performing Pre-1972 Sound Recordings); see also 18 U.S.C. 1001 (false statements generally). 151 17 U.S.C. 1401(c)(1); Conf. Rep. at 25 (‘‘Subsection (c) applies only to noncommercial uses.’’). 152 17 U.S.C. 1401(c)(2)(A). 153 Id. at 1401(c)(2)(B). 154 Conf. Rep. at 25. 155 See, e.g., 17 U.S.C. 107; 108(a)(1), (c), (h)(2)(A); 109(a), (b)(1)(A); 110(4), (8); 506(a); see also Kernochan Center Reply at 2–3 (discussing various statutory provisions); 37 CFR 201.40(b)(1)(i)(B) (2018) (regulatory exception for certain uses of motion pictures in noncommercial videos); compare 17 U.S.C. 901(a)(5) (defining ‘‘commercially exploit’’ with respect to mask works). VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 The NOI questioned whether the Office should adopt guidelines for filers ‘‘as to what constitutes a ‘noncommercial’ use, and if so, what?’’ 156 FMC strongly urged the Office to provide such guidance to ‘‘prevent situations where less sophisticated users misunderstand the statute.’’ 157 Similarly, A2IM and RIAA suggest ‘‘it is vitally important for both users and rights owners that the Office issue guidelines to help users recognize appropriate uses of section 1401(c) and help rights owners assess the NNUs that get filed,’’ particularly for users less experienced with copyright.158 Citing an array of case law and endorsing a public survey on this topic from Creative Commons, they propose specific text for the Office’s consideration.159 On the other hand, Wikimedia Foundation cautioned the Office to avoid creating ‘‘complex presumptions’’ for specific anticipated fact patterns, suggesting that terms like ‘‘noncommercial’’ are defined in factspecific contexts that are still being explored by courts.160 The Kernochan Center provided a run-down of key court opinions with ‘‘differing conclusions as to what constitutes commercial versus noncommercial use.’’ 161 It suggested that the A2IM and RIAA proposal was insufficiently clarifying, while also acknowledging that failure to interpret the term might perpetuate conflicting interpretations by courts and advocacy groups.162 The Office agrees with the Kernochan Center that defining noncommercial in relation to section 1401 is ‘‘a complex proposition.’’ 163 In a sense, section 1401(c) requires the Office to mediate a channel for users and rights owners to engage with each other regarding potentially noncommercial uses through competing filings, and it is not the Office’s intention to constrain resolution of gray areas or edge cases through private negotiation or, if necessary, the courts. If anything, the Office hopes this new mechanism may engender 156 NOI at 52178. Reply at 6 (noting prevalence of incorrect understanding of copyright published by users in connection with user-uploaded content on YouTube). 158 A2IM & RIAA Reply at 6. 159 A2IM & RIAA Initial at 10–15 (citing Creative Commons, Defining ‘‘Noncommercial’’: A Study of How the Online Population Understands ‘‘Noncommercial Use’’ 18 (Sept. 2009), https:// mirrors.creativecommons.org/definingnoncommercial/Defining_Noncommercial_ fullreport.pdf). 160 Wikimedia Foundation Reply at 3. 161 Kernochan Center Reply at 3–4. 162 Id. at 4. 163 Id. 157 FMC PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 dialogues to further productive developments in this area. But in examining the relevant statutory and case law, as well as the comments, it is apparent that there are some touchstones in evaluating whether a use is noncommercial that may be helpful to flag for filers and other interested parties. While individual determinations may be fact-specific, inclusion of this new exception suggests a congressional intent to provide a new avenue to facilitate certain noncommercial uses.164 Moreover, many comments pointed out that individuals and smaller nonprofit entities may benefit from additional explanation regarding the content and filing of NNUs.165 The Office plans to include information directed at helping users determine whether and how to file a NNU, including considerations that may affect their own determination that a use is noncommercial. Such material may be included on the Office’s instructions, forms, or other public resources, which will also make clear that the Office does not provide legal advice regarding specific uses. Because this information is directly tailored to the Office’s promulgation of regulations establishing the content for the filing of NNUs, and is aimed at aiding prospective filers—both users and rights owners—in evaluating whether a use may fall under this noncommercial use exemption, the Office agrees that this guidance should not necessarily be presumed to directly bear upon questions related to other parts of the statute.166 While this notice is not including specific language, the Office provisionally anticipates calling attention to the following types of considerations. 1. Use v. User. The evaluation should consider the type of use of the copyrighted material and not simply the nature of the user.167 While a filer will be asked to disclose whether the user is a tax-exempt organization or other corporate entity, this information is helpful but not dispositive, as some uses 164 See also 17 U.S.C. 1401(c)(6)(A) (prescribing penalties for filing an NNU while ‘‘knowing that the use proposed is not permitted’’) (emphasis added). 165 See, e.g., EFF Initial at 1; AAU Initial at 1; FMC Reply at 6; Public Knowledge Reply at 9; A2IM & RIAA Reply at 6. 166 See SoundExchange Initial at 15–16 (re specialized licenses for noncommercial users under sections 112 or 114); Kernochan Center Reply at 5. 167 See, e.g., Cambridge Univ. Press v. Patton, 769 F.3d 1232, 1264 (11th Cir. 2014) (‘‘[W]e must consider not only the nature of the user, but the use itself.’’); Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 921–22 (2d Cir.1994) (‘‘[A] court’s focus should be on the use of the copyrighted material and not simply on the user . . . ’’). E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules by nonprofit organizations may constitute ‘‘commercial’’ use.168 Similarly, some uses by for-profit entities may constitute ‘‘noncommercial’’ use 169 and ‘‘the fact that a person engaging in the use of a sound recording also engages in commercial activities does not itself necessarily render the use commercial.’’ 170 2. Educational uses. Educational uses ‘‘such as teaching, scholarship and research’’ are often noncommercial uses that provide a public benefit.171 But some educational uses may be considered commercial, for example, when fees are charged or copies sold, or when the user gains another kind of measurable benefit (such as valuable authorship credit through plagiarism of the work), and so the educational nature of the use should be viewed as one important part of the overall evaluation whether the use is noncommercial.172 3. Covering the costs of production and distribution of the sound recording. ‘‘Merely recovering costs of production and distribution of a sound recording resulting from a use’’ that would otherwise be considered noncommercial ‘‘does not itself necessarily constitute a commercial use.’’ 173 Similarly, the fact that the user may save money on a licensing fee does not automatically make the use commercial.174 168 See, e.g., Greenberg v. Nat’l Geographic Soc’y, 244 F.3d 1267, 1275 (11th Cir. 2001), rev’d on other grounds on reh’g en banc, 533 F.3d 1244 (11th Cir. 2008). (‘‘[W]hile the [CD–ROM library] is a product that may serve educational purposes, it is marketed to the public at book stores, specialty stores, and over the internet. [Defendant] is a non-profit organization, but its subsidiary National Geographic Enterprises, which markets and distributes the [product], is not; the sale of the [product] is clearly for profit.’’). 169 See, e.g., Am. Geophysical Union, 60 F.3d at 921–22; Byrne v. British Broad. Corp., 132 F. Supp. 2d 229, 234 (S.D.N.Y. 2001). 170 17 U.S.C. 1401(c)(2)(B). 171 Conf. Rep. at 25. 172 See, e.g., Peter Letterese & Assocs. v. World Inst. of Scientology Enters. Int’l, 533 F.3d 1287, 1309–12 (11th Cir. 2008) (finding use of copyrighted material in an instructional coursepack, where defendants charged a fee, was ‘‘commercial’’); Princeton Univ. Press v. Mich. Document Servs., 99 F.3d 1381, 1385–86 (6th Cir. 1996) (finding reproduction of academic works was ‘‘commercial’’ use because copies were sold in coursepacks); Weissman v. Freeman, 868 F.2d 1313, 1324 (2d Cir. 1989) (academic researcher’s plagiarism was commercial because ‘‘what is valuable is recognition because it so often influences professional advancement’’); see also Cambridge Univ. Press, 769 F.3d at 1263–66. 173 17 U.S.C. 1401(c)(2)(A). 174 See, e.g., Cambridge Univ. Press, 769 F.3d at 1265–66 (‘‘Of course, any unlicensed use of copyrighted material profits the user in the sense that the user does not pay a potential licensing fee, allowing the user to keep his or her money. If this analysis were persuasive, no use could qualify as ‘nonprofit’ . . . .’’). VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 4. Financial gain or other profit. Beyond covering the costs of production and distribution, if the user otherwise ‘‘stands to profit from exploitation of the copyrighted material without paying the customary price,’’ it is more likely to be considered a commercial use.175 For example, some courts have stated that if the use can be expected to bring the user ‘‘conspicuous financial rewards,’’ it is more likely to be commercial.176 Some examples may include uses of a copyrighted work in an advertisement, through the sale of a newspaper or magazine (even by a non-profit organization), or other uses that directly earn users money.177 5. Private personal uses. If the use is a private home use for an individual’s personal enjoyment, it will generally be considered noncommercial.178 Posting on the open, accessible internet is not a private use, even if the user does not encourage others to access the Pre-1972 Sound Recording. 6. Other individual uses. Putting a Pre-1972 Sound Recording on YouTube or another platform that allows users to upload content may or may not be commercial; again, the user must consider the purpose of the use, including whether the user is monetizing that use for profit.179 175 Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985); see also Wall Data Inc. v. Los Angeles Cty. Sheriff’s Dep’t, 447 F.3d 769, 779 (9th Cir. 2006) (police department copying software to avoid buying additional licenses was a commercial use). 176 Cambridge Univ. Press, 769 F.3d at 1266; see Am. Geophysical Union, 60 F.3d at 922. 177 See, e.g., Davis v. The Gap, Inc., 246 F.3d 152, 175 (2d Cir. 2001) (‘‘Here the work, being an advertisement, is at the outer limit of commercialism.’’) (citing Campbell, 510 U.S. at 585); Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1152 (9th Cir. 1986) (use in fundraisers for religious organization is commercial); Sony Comput. Entm’t Am., Inc. v. Bleem, LLC, 214 F.3d 1022, 1027 (9th Cir. 2000) (finding use of screen shots of plaintiff’s video games in comparative advertising was commercial); Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044, 1049 (2d Cir. 1983) (‘‘Almost all newspapers, books and magazines are published by commercial enterprises that seek a profit.’’); see also Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 846 (C.D. Cal. 2006), aff’d in part, rev’d in part sub nom on other grounds, 508 F.3d 1146 (9th Cir. 2006). 178 See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 448–49 (1984) (‘‘timeshifting for private home use must be characterized as a noncommercial, nonprofit activity’’); Recording Indus. Ass’n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir. 1999) (addressing transfer of legitimately-acquired MP3 files from user’s hard drive to portable media player); see also A2IM & RIAA Initial at 13 (acknowledging that ‘‘use of lawfully-acquired works for an individual’s personal enjoyment clearly seems to be noncommercial’’). 179 For example, making copies to help people ‘‘get for free something they would ordinarily have to buy,’’ such as file sharing to anonymous requesters over the internet, has been found to be commercial. A&M Records. Inc. v. Napster, Inc., PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 1673 Finally, the Copyright Office also addresses a question raised regarding the scope of its regulatory authority. EFF and Public Knowledge contend the Office lacks authority to issue guidance regarding the meaning of ‘‘noncommercial use’’ as part of this rulemaking.180 Perhaps more broadly, EFF suggests that the Copyright Office requires ‘‘a statutory grant’’ ‘‘to give opinions’’ regarding copyright issues or the meaning of specific terms in the copyright law.181 In point of fact here, three relevant statutory charges reside at 17 U.S.C. 701(b), 702, and 1401(c)(3).182 It is well-established, permissible, and often necessary for the Office to construe or otherwise interpret the meaning of statutory terms as part of dutifully exercising its regulatory functions.183 Indeed, this is a basic precept of administrative law.184 As 239 F.3d 1004, 1015 (9th Cir. 2001); see also FMC Reply at 6 (expressing ‘‘acute concern’’ about uploads to ‘‘YouTube or similar commercial services’’). 180 Public Knowledge Initial at 8 (suggesting statute provides ‘‘no role’’ for the Office); EFF Initial at 5; see also Wikimedia Foundation Reply at 3. 181 EFF Initial at 5 (citation omitted). 182 17 U.S.C. 701(b) (outlining additional functions and duties), 702 (Copyright Office regulations), and 1401(c)(3) (directing promulgation of noncommercial use rulemaking). See also S. Rep. No. 115–339 at 15 (discussing Copyright Office knowledge and expertise regarding music copyright regulations, educational activities, and reports with respect to title I of the MMA); Conf. Rep. at 12 (same). The Office also provides authoritative information about the copyright law and public education regarding copyright and the administration of its functions and duties under title 17. See 17 U.S.C. 701(b); 37 CFR 203.3(f); id. at § 201.2(b)(7). 183 See, e.g., 37 CFR 201.4(c)(2) (defining a document ‘‘pertaining to a copyright’’), § 201.10(d)(2) (identifying actions that will meet statutory service requirements), § 201.10(f)(1)(ii)(C) (treating date of creation of a ‘‘gap work’’ as date of execution of a grant), § 201.11 (including interest in Section 119 royalty fee payments), § 201.13(a)(2) (defining ‘‘copyright owner’’ for purposes of Section 110(4)), § 201.17(b) (defining ‘‘gross receipts’’ and ‘‘cable system’’ for purposes of Section 111), § 201.18(a)(5) (defining ‘‘copyright owner’’ for purposes of Section 115 notices of intention), § 201.22(a)(2) (defining ‘‘copyright owner’’ for purposes of Section 411(c)), 201.26(b) (defining terms relating to shareware for purpose of Section 805 of Public Law 101–650), § 202.1 (providing examples of works not subject to copyright), § 202.10 (requirements for protection of pictorial, graphic, and sculptural works), § 201.11(b)(2) (defining ‘‘building’’ for purposes of architectural works protection); see also Mazer v. Stein, 347 U.S. 201, 211–13 (1954) (relying on Copyright Office regulations ‘‘interpreting’’ the 1909 Act with respect to copyrightable subject matter). 184 See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co., 323 U.S. 134 (1944). Relatedly, EFF’s citation of Capitol Records, LLC v. Vimeo, LLC seems misplaced in comments responsive to a statutorily-required rulemaking regarding a new federal exception to the ability of rights owners to control uses of Pre-1972 Sound E:\FR\FM\05FEP1.SGM Continued 05FEP1 1674 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules Congress has so directed, the Office will continue to interpret statutory terms as necessary to administer a wide variety of filings mandated under title 17, including NNUs, and also through documents such as circulars, its Compendium of U.S. Copyright Office Practices, or other public aids.185 While it is true that courts afford varying levels of deference to these differing types of documents (as with any agency), that fact does not bear upon the Office’s authority to issue these documents in fulfillment of its statutory functions and duties. ii. Filing of NNUs, Including Copyright Office Review Stakeholders disagree on the Office’s level of review of NNUs. Copyright Alliance, A2IM, and RIAA contend that the Office should reject NNUs that do not provide sufficient information or are ‘‘patently deficient.’’ 186 In addition, Copyright Alliance and FMC ask for guidance on how the Office plans to police bad faith or deficient notices.187 By contrast, EFF maintains that the Office cannot reject facially complete notices of use or opt-out notices,188 and Public Knowledge contends that section Recordings. See EFF Initial at 5 (citing 826 F.3d 78, 93 (2d Cir. 2016)). First, as the sentence that EFF partially quotes indicates, Vimeo actually suggests that Chevron deference is appropriate with respect to a Copyright Office rulemaking (such as this one). Vimeo, 826 F.3d at 93 (distinguishing level of deference in that case from ‘‘Chevron deference of the sort accorded to rulemaking by authorized agencies’’). Indeed, the Second Circuit has ‘‘appl[ied] Chevron’’ in adopting the Office’s interpretation of section 111 as reasoned through similar rulemaking documents concerning requirements for filing statements of account with respect to the cable license, when determining whether internet retransmission services may qualify for this license. WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 284 (2d Cir. 2012). Second, far from discounting the Office’s guidance in this area, Congress subsequently ratified the approach recommended in the policy report discussed in Vimeo of expressly amending title 17 to apply the section 512 safe harbor as well as other federal exceptions and limitations to Pre-1972 Sound Recordings. See 17 U.S.C. 1401(f)(3); (1)(B)(3); Pre1972 Sound Recordings Report at 128–29, 130–32; see also Mitch Stoltz, The New Music Modernization Act Has a Major Fix: Older Recordings Will Belong to the Public, Orphan Recordings Will Be Heard Again, EFF (Sept. 19, 2018), https://www.eff.org/deeplinks/2018/09/newmusic-modernization-act-has-major-fix-olderrecordings-will-belong-public (noting it is ‘‘important’’ that under title II, ‘‘the full set of public rights and protections’’ ‘‘will apply explicitly,’’ in contrast to state laws). 185 See, e.g., Compendium (Third) Introduction 2 (collecting cases relying on Compendium); ABS Entm’t, Inc. v. CBS Corp., 908 F.3d 405, 417 n.5 (9th Cir. 2018) (‘‘Circulars provide Copyright Office guidance on various issues. We may rely on them as persuasive but not binding authority.’’). 186 A2IM & RIAA Initial at 19; Copyright Alliance Initial at 3. 187 Copyright Alliance Initial at 3; FMC Reply at 5. 188 EFF Reply at 3. VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 1401(c) ‘‘contemplates no such role for the Office’’ to reject notices on substantive grounds.189 As with similar types of filings made with the Office, the proposed rule states that the Office does not review NNUs for legal sufficiency.190 Rather, the Office’s review is limited to whether the formal and legal procedural requirements established under the rule (including completing the required information and payment of the proper filing fee) have been met. The Office’s indexing of an NNU thus does not mean the proposed use in the NNU is, in fact, noncommercial. Users are therefore cautioned to review and scrutinize NNUs to assure their legal sufficiency before submitting them to the Office. Section 1401(c)(6)(A) contemplates civil penalties for the filing of fraudulent NNUs (e.g., fraudulently describing the use proposed).191 In connection with the Office’s exercise of the regulatory authority directed under the MMA and its general authority and responsibility to administer title 17,192 the proposed rule states that if the Register becomes aware of abuse or fraudulent NNUs from a certain filer, she shall have the discretion to reject all submissions from that filer under section 1401(c) for up to one year. iii. Indexing NNUs Into the Copyright Office’s Online Database Section 1401(c) requires NNUs to be ‘‘indexed into the public records of the Copyright Office.’’ 193 Under the proposed rule, an NNU will be considered ‘‘indexed’’ once it is made publicly available through the Office’s 189 Public Knowledge Reply at 7. The Copyright Alliance maintains that the ‘‘Copyright Office does clearly have authority to deny facially invalid notices,’’ and the discretion to reject notices which on their face are not sufficient to identify the sound recording—thus not providing notice to the owner of the sound recording—and nature of the use or do not adhere to the form, content, and procedures established by the Register through regulations.’’ Copyright Alliance Reply at 2. 190 For example, the Office accepts statements of account under the section 111 cable license after a review for ‘‘obvious errors or omissions appearing on the face of the documents’’ (see 37 CFR 201.17(c)(2)), notices of intention under the section 115 compulsory license without review for ‘‘legal sufficiency’’ or ‘‘errors or discrepancies’’ (see id. at § 201.18(g)), and agent designations made pursuant to section 512(c)(2) without any examination. 191 17 U.S.C. 1401(c)(6)(A) (‘‘Any person who willfully engages in a pattern or practice of filing a [NNU] . . . fraudulently describing the use proposed, or knowing that the use proposed is not permitted under [section 1401(c)], shall be assessed a civil penalty in an amount that is not less than $250, and not more than $1000, for each such notice, in addition to any other remedies that may be available under this title based on the actual use made.’’). 192 See id. at 1401(c)(3), (5)(A); id. at 701(a). 193 Id. at 1401(c)(1)(C); see internet Archive Initial at 2 (advocating same). PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 online database of NNUs. Similar to the Office’s database of indexed Pre-1972 Schedules, the Office intends to provide an online and searchable database of indexed NNUs. Rights owners can search on the prospective user’s name, the title of the sound recording, the featured artist(s), and the ISRC provided in NNUs.194 In addition, each NNU will be assigned a unique identifier by the Copyright Office, which will also be searchable. As noted below, rights owners will be required to include the unique identifier assigned to an NNU if the rights owner desires to file a Pre1972 Opt-Out Notice in response. Although indexed NNUs will be publicly available, the proposed rule states that users cannot rely on NNUs filed by third parties (other than the user’s agent). Similarly, a user cannot rely on her own NNU once the proposed term of use ends (i.e., she must conduct a new good faith, reasonable search for the Pre-1972 Sound Recording and file a new NNU). The proposed rule also confirms that persons may request timely notification of when NNUs are indexed into the Office’s public records by following the instructions provided by the Copyright Office on its website.195 Individuals requesting such notification can subscribe to a weekly email through a service similar to the Office’s NewsNet service, which will provide a link to the Office’s online database of indexed NNUs. The Office’s searchable database will default to listing the NNUs with the most recent index dates first, so individuals should easily be able to identify recently indexed filings.196 C. Opt-Out Notices As noted above, the rights owner of a Pre-1972 Sound Recording may file a Pre-1972 Opt-Out Notice with the Copyright Office ‘‘opting out’’ of (i.e., objecting to) the proposed use in an NNU within 90 days of the NNU being indexed into the Office’s public records.197 The proposed rule states that where a Pre-1972 Sound Recording has multiple rights owners, only one rights owner needs to file Pre-1972 Opt-Out Notice for purposes of section 194 Similar to the database of Pre-1972 Schedules discussed above, the Office’s database of NNUs will allow for wildcard searching by using an asterisk to fill in partial words. 195 See A2IM & RIAA Initial at 22 (requesting same). 196 The Office believes having an online, searchable database of indexed NNUs and a periodic email notification option addresses Author Services’ concern about how rights owners of Pre1972 Sound Recordings will receive notice of indexed NNUs. Author Services Reply #1 at 1–2. 197 17 U.S.C. 1401(c)(1)(C). E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules 1401(c)(5).198 In addition, the proposed rule requires the Pre-1972 Opt-Out Notice to include the rights owner’s name and the unique identifier assigned to the NNU by the Copyright Office. The submitter of the Pre-1972 Opt-Out Notice may opt in her discretion to comment on whether the proposed use constitutes noncommercial use. In keeping with filings of similar type, the Pre-1972 Opt-Out Notice must also include a certification that the individual submitting the notice has appropriate authority to do so and that all information submitted to the Office is true, accurate, and complete to the best of the individual’s knowledge, information, and belief, and is made in good faith. The Office intends to make Pre-1972 Opt-Out Notices publicly available through the Office’s online searchable database of NNUs. If a rights owner files a timely Pre1972 Opt-Out Notice, the proposed rule states that the user specified in the NNU use must wait one year before filing another NNU for the same or similar use of the Pre-1972 Sound Recording. As with NNUs and similar types of filings made with the Office, the proposed rule states that the Office does not review Pre-1972 Opt-Out Notices for legal sufficiency, interpret their content, or screen them for errors or discrepancies. Rather, the Office’s review is limited to whether the procedural requirements established by the Office (including payment of the proper filing fee) have been met. Rights owners are therefore cautioned to review and scrutinize Pre-1972 Opt-Out Notices to assure their legal sufficiency before submitting them to the Office. As with the Office’s handling of fraudulent NNUs, because section 1401(c)(6)(B)(ii) contemplates civil penalties for a pattern of filing of fraudulent Pre-1972 Opt-Out Notices,199 the proposed rule states that if the Register becomes aware of abuse or fraudulent Pre-1972 Opt-Out Notices from a certain filer, she shall have the discretion to reject all 198 Similarly, where a musical work has multiple copyright owners, the Office does not require each copyright owner to record a Declaration of Ownership in Musical Works to become eligible for royalties under the 17 U.S.C. 115 compulsory license. U.S. Copyright Office, Document Recordation: Completing and Submitting Declarations of Ownership in Musical Works (last visited Jan. 28, 2019), https://www.copyright.gov/ recordation/domw/#requirements. 199 17 U.S.C. 1401(c)(6)(B)(ii) (‘‘Any person who engages in a pattern or practice of [filing a Pre-1972 Opt-Out Notice, knowing that the person is not the rights owner or authorized to act on behalf of the rights owner of the sound recording to which the NNU pertains,] shall be assessed a civil penalty in an amount not less than $10,000 for each such filing.’’); see also 17 U.S.C. 1401(c)(5)(A); id. at 701(a). VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 submissions from that filer for up to one year. D. Filing Fees The Copyright Act grants the Office authority to establish, adjust, and recover fees for services provided to the public.200 The rule proposes fees to file an NNU or an Opt-Out Notice that are the same as the current fee to record a notice of intention to make and distribute phonorecords under section 115 (‘‘NOI’’).201 The Office anticipates that the processing of these documents will be analogous to that of processing electronic NOIs, and has based the proposed fee accordingly.202 Similar to the Office’s free NewsNet service, there will be no fee for individuals to request and receive timely notifications of when NNUs are indexed into the Office’s public records. III. Ex Parte Communications In the past, the Office’s communications with rulemaking participants have not generally included discussions about the substance of the proceeding apart from the noticed phases of written comments. The Office has determined that further informal communications with participants might be beneficial in limited circumstances where the Office seeks specific information or follow-up regarding the public record, such as to discuss nuances of proposed regulatory language. The primary means to communicate views in the course of the rulemaking will continue to be through the submission of written comments. In other words, this communication will supplement, not substitute for, the preexisting record. To ensure that such communications are governed by transparent and consistent procedures, the Office is issuing the following guidelines, which id. at 708. Because they do not involve services specified in section 708(a), the fees proposed in this NPRM are not subject to the adjustment of fees provision in section 708(b). 201 37 CFR 201.3(e)(1) (stating cost to record section 115 NOI for one title is $75). The Office notes that the proposed fee is lower than to record a document for a single title. See id. at § 201.3(c)(17) (stating cost to record document for single title is $105). 202 Basing the cost of a service on the cost for a similar service is appropriate. See Copyright Office Fees, 83 FR 24054, 24059 (May 24, 2018) (proposing setting new fees at the same level for ‘‘analogous’’ services). In 2017, Booz Allen Hamilton conducted a study of the Office’s most recent fee structure. When asked whether existing rates could be leveraged for new group registration options, it concluded it was appropriate if the work required was of a similar grade and compensation level. Booz Allen Hamilton, U.S. Copyright Office, Fee Study: Question and Answers 6 (Dec. 2017), https:// www.copyright.gov/rulemaking/feestudy2018/fee_ study_q&a.pdf. may be supplemented by information on the Copyright Office’s website at https:// www.copyright.gov/rulemaking/ pre1972-soundrecordingsnoncommercial/: 1. Any interested participant seeking an ex parte in-person or telephone meeting with the Office in this proceeding should submit a written request to the persons identified in the contact information section of this NPRM. The request should identify the names of all proposed attendees, and the party or parties on whose behalf each attendee is appearing. 2. Ex parte meetings with the Office are intended to provide an opportunity for participants to clarify evidence and/ or arguments made in prior written submissions, and to respond to questions from the Office on those matters. The Office will generally not consider or accept new documentary materials outside the rulemaking record. 3. Within two business days after the meeting, the attendees must email the Office (using the above email addresses) a letter detailing the information identified in paragraph 1 and summarizing the discussion at the meeting. The letter must summarize the substance of the views expressed and arguments made in such a way that a non-participating party will understand the scope of issues discussed; merely listing the subjects discussed or providing a 1–2 sentence description will not be sufficient. These letters will be made publicly available on the Copyright Office’s website. 4. To ensure compliance with the statutory deadline, all ex parte meetings in this proceeding must take place no later than Friday, March 22, 2019. The Office will not consider requests to hold meetings after that date. List of Subjects in 37 CFR Part 201 200 See PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 1675 Copyright, General provisions. Proposed Regulations In consideration of the foregoing, the U.S. Copyright Office proposes amending 37 CFR part 201 as follows: PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: ■ Authority: 17 U.S.C. 702. 2. Amend § 201.3 as follows: a. Redesignate paragraphs (c)(21) and (c)(22) as paragraphs (c)(23) and (c)(24), respectively. ■ b. Add paragraphs (c)(21) and (c)(22) to read as follows: ■ ■ E:\FR\FM\05FEP1.SGM 05FEP1 1676 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules § 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division. * * * * (c) * * * * Fees ($) Registration, recordation and related services * * * * * * (21) Notice of noncommercial use of pre-1972 sound recording .............................................................................................................. (22) Opt-out notice of noncommercial use of pre-1972 sound recording ................................................................................................. * * * * * * * * 3. Amend § 201.4 as follows: a. Revise paragraph (b)(3). b. Revise paragraph (b)(10) by removing ‘‘; and’’ and replacing with ‘‘;’’. ■ c. Revise paragraphs (b)(11), (b)(12), and (b)(13) by removing the period at the end of each paragraph and replacing with a semicolon. ■ d. Add paragraphs (b)(14) and (b)(15). The additions and revisions read as follows: ■ ■ ■ § 201.4 Recordation of transfers and other documents pertaining to copyright. * * * * * (b) * * * (3) Notices of use of sound recordings under statutory license and notices of intention to obtain a compulsory license to make and distribute phonorecords of nondramatic musical works (17 U.S.C. 112(e), 114, and 115(b); see §§ 201.18, 370.2 of this chapter); * * * * * (14) Notices of noncommercial use of pre-1972 sound recordings (17 U.S.C. 1401(c)(1)(B); see § 201.37); and (15) Opt-out notices of noncommercial use of pre-1972 sound recordings (17 U.S.C. 1401(c)(1)(C); see § 201.37). * * * * * ■ 4. Add § 201.37 to read as follows: § 201.37 Noncommercial use of pre-1972 sound recordings (a) General. This section prescribes the rules under which a user, desiring to make noncommercial use of a pre1972 sound recording pursuant to 17 U.S.C. 1401(c), conducts a good faith, reasonable search to determine whether the sound recording is being commercially exploited, and if not, files a notice of noncommercial use with the Copyright Office. This section also prescribes the rules under which a rights owner of a pre-1972 sound recording identified in a notice of noncommercial use may file an opt-out notice opposing a proposed use of the VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 * * sound recording, pursuant to 17 U.S.C. 1401(c)(1)(C). (b) Definitions. For purposes of this section: (1) Unless otherwise specified, the terms used have the meanings set forth in 17 U.S.C. 1401. (2) A pre-1972 sound recording is a sound recording fixed before February 15, 1972. (3) For pre-1972 sound recordings of classical music, including opera: (i) The title of the pre-1972 sound recording means, to the extent applicable and known by the user, any and all title(s) of the sound recording and underlying musical composition known to the user, and the composer and opus or catalogue number(s) of the underlying musical composition; and (ii) the featured artist(s) of the pre1972 sound recording means, to the extent applicable and known by the user, the featured soloist(s); featured ensemble(s); featured conductor; and any other featured performer(s). (c) Conducting a good faith, reasonable search. (1) Pursuant to 17 U.S.C. 1401(c)(3)(A), a user desiring to make noncommercial use of a pre-1972 sound recording should search for the sound recording in each of the categories below until the user finds the sound recording. If the user does not find the pre-1972 sound recording after searching the categories below, her search is sufficient for purposes of the safe harbor in 17 U.S.C. 1401(c)(4), establishing that she made a good faith, reasonable search without finding commercial exploitation of the sound recording by or under the authority of the rights owner. The categories are: (i) Searching the Copyright Office’s database of indexed schedules listing right owners’ pre-1972 sound recordings (https://www.copyright.gov/musicmodernization/pre1972soundrecordings/searchsoundrecordings.html); (ii) Searching at least one major search engine, namely Google, Yahoo!, PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 * * 75 75 * or Bing, to determine whether the pre1972 sound recording is being offered for sale in download form or as a new (not resale) physical product, or is available through a streaming service; (iii) Searching at least one of the following streaming services: Amazon Music Unlimited, Apple Music, Spotify, or TIDAL; (iv) Searching SoundExchange’s repertoire database through the SoundExchange ISRC lookup tool (https://isrc.soundexchange.com/#!/ search); (v) Searching at least one major seller of physical product, namely Amazon.com, and if the pre-1972 sound recording is of classical music or jazz, searching a smaller online music store that specializes in product relative to that niche genre, namely: ArkivJazz, ArkivMusic, Classical Archives, or Presto; in either case, to determine whether the pre-1972 sound recording is being offered for sale in download form or as a new (not resale) physical product; and (vi) For pre-1972 ethnographic sound recordings of Alaska Native or American Indian tribes or communities, searching, if such contact information is known to the user, by contacting the relevant Alaska Native or American Indian tribe and the holding institution of the sound recording (such as a library or archive) to gather information to determine whether the sound recording is being commercially exploited. If this contact information is not previously known to the prospective user, the user should use the information provided by the National Congress of American Indians (NCAI) tribal directory to contact the relevant tribe or NCAI itself (http:// www.ncai.org/tribal-directory). (2) A search under paragraph (c)(1) of this section must include searching the title of the pre-1972 sound recording and its featured artist(s). If the user knows any of the following attributes of the sound recording, and the source being searched has the capability for the user to search any of the following E:\FR\FM\05FEP1.SGM 05FEP1 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules attributes, the search must also include searching: Alternate artist name(s), alternate title(s), album title, and the International Standard Recording Code (‘‘ISRC’’). A user is encouraged, but not required, to search additional known attributes, such as the label, version, or Universal Product Code (‘‘UPC’’). (3) A search under paragraph (c)(1) of this section must be conducted within 90 days of the user (or her agent) filing a notice of noncommercial use under paragraph (d)(1) of this section to be sufficient for purposes of the safe harbor in 17 U.S.C. 1401(c)(4). (4) For purposes of the safe harbor in 17 U.S.C. 1401(c)(4)(A), a user cannot rely on: (i) A search conducted under paragraph (c)(1) of this section by a third party who is not the user’s agent; or (ii) A notice of noncommercial use filed under paragraph (d)(1) of this section by a third party (who is not the user’s agent) to which the rights owner does not file an opt-out notice. (d) Notices of noncommercial use. (1) Form and submission. A user seeking to comply with 17 U.S.C. 1401(c)(1) must submit a notice of noncommercial use identifying the pre1972 sound recording that the user intends to use and the nature of such use using an appropriate form provided by the Copyright Office on its website and following the instructions provided on the Office’s website or the form itself. The Office may reject any submission that fails to comply with the requirements of this section, or any relevant instructions or guidance provided by the Office. (2) Content. A notice of noncommercial use shall contain the following: (i) The user’s full legal name, and whether the user is an individual person or corporate entity, including whether the entity is a tax-exempt organization as defined under the Internal Revenue Code. Additional contact information, including an email address, may be optionally provided. (ii) The title and featured artist(s) of the pre-1972 sound recording desiring to be used. (iii) If any are known to the user, the alternate artist name(s), alternate title(s), album title, and International Standard Recording Code (ISRC). (iv) The user may include additional optional information about the pre-1972 sound recording as permitted by the Office’s form or instructions, such as the year of release. (v) A description of the proposed noncommercial use, including a summary of the project and its purpose, VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 how the pre-1972 sound recording will be used in the project, and when and where the proposed use will occur (i.e., the term and U.S.-based territory of the use). The user may include additional optional information detailing the proposed use, such as the tentative title of the project, the playing time of the pre-1972 sound recording to be used as well as total playing time, description of corresponding visuals in the case of audiovisual uses, and whether and how the user will credit the sound recording title, featured artist, and/or rights owner in connection with the project. (vi) A certification that the user searched but did not find the pre-1972 sound recording in a search conducted under paragraph (c) of this section. (vii) A certification that the individual submitting the notice of noncommercial use has appropriate authority to submit the notice, that the user desiring to make noncommercial use of the pre1972 sound recording (or the user’s agent) conducted a search under paragraph (c) within the last 90 days without finding commercial exploitation of the sound recording, and that all information submitted to the Office is true, accurate, and complete to the best of the individual’s knowledge, information, and belief, and is made in good faith. (3) U.S.-based territory. Noncommercial use of a pre-1972 recording under this section is limited to use within the United States. (4) Number of sound recordings. A notice of noncommercial use may not include proposed use for more than one pre-1972 sound recording unless all of the sound recordings include the same featured artist(s) and were released on the same pre-1972 album or unit of publication. (5) Unique identifier. The Copyright Office will assign each indexed notice of noncommercial use a unique identifier to identify the notice in the Office’s public records. (6) Legal sufficiency. (i) The Copyright Office does not review notices of noncommercial use submitted under paragraph (d)(1) of this section for legal sufficiency. The Office’s review is limited to whether the procedural requirements established by the Office (including payment of the proper filing fee) have been met. The fact that the Office has indexed a notice is not a determination by the Office of the notice’s validity or legal effect. Indexing by the Copyright Office is without prejudice to any party claiming that the legal or formal requirements for making a noncommercial use of a pre1972 sound recording have not been met, including before a court of PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 1677 competent jurisdiction. Users are therefore cautioned to review and scrutinize notices of noncommercial use to assure their legal sufficiency before submitting them to the Office. (ii) If a rights owner does not file an opt-out notice under paragraph (e) of this section, when the term of use specified in the notice of noncommercial use ends, the user must cease noncommercial use of the pre1972 sound recording for purposes of remaining in the safe harbor in 17 U.S.C. 1401(c)(4). Should the user desire to requalify for the safe harbor with respect to that same pre-1972 sound recording, the user must conduct a new search and file a new notice of noncommercial use under paragraphs (c) and (d) of this section, respectively. (7) Filing date. The date of filing of a notice of noncommercial use is the date when a proper submission, including the prescribed fee, is received in the Copyright Office. The filing date may not necessarily be the same date that the notice, for purposes of 17 U.S.C. 1401(c)(1)(C), is indexed into the Office’s public records. (8) Fees. The filing fee to submit a notice of noncommercial use pursuant to this section is prescribed in § 201.3(c). (9) Third-party notification. A person may request timely notification of filings made under paragraph (d)(1) of this section by following the instructions provided by the Copyright Office on its website. (e) Opt-out notices. (1) Form and submission. A rights owner seeking to comply with 17 U.S.C. 1401(c)(1)(C) must file a notice opting out of a proposed noncommercial use of a pre-1972 sound recording filed under paragraph (d)(1) of this section using an appropriate form provided by the Copyright Office on its website and following the instructions for completion and submission provided on the Office’s website or the form itself. The Office may reject any submission that fails to comply with the requirements of this section, or any relevant instructions or guidance provided by the Office. (2) Content. An opt-out notice use shall contain the following: (i) The rights owner’s name and the unique identifier assigned to the notice of noncommercial use by the Copyright Office. Additional contact information, including an email address, may be optionally provided. (ii) A certification that the individual submitting the opt-out notice has appropriate authority to submit the notice and that all information submitted to the Office is true, accurate, E:\FR\FM\05FEP1.SGM 05FEP1 1678 Federal Register / Vol. 84, No. 24 / Tuesday, February 5, 2019 / Proposed Rules and complete to the best of the individual’s knowledge, information, and belief, and is made in good faith. (iii) Submission of an opt-out notice does not constitute agreement by the rights owner or the individual submitting the opt-out notice that the proposed use is in fact noncommercial. The submitter may choose to comment upon whether the rights owner agrees that the proposed use is noncommercial use, but failure to do so does not constitute agreement that the proposed use is in fact noncommercial. (3) Multiple rights owners. Where a pre-1972 sound recording has multiple rights owners, only one rights owner needs to file an opt-out notice for purposes of 17 U.S.C. 1401(c)(5). (4) Effect of opting out. If a rights owner files a timely opt-out notice under paragraph (e)(1) of this section, the user must wait one year before filing another notice of noncommercial use proposing the same or similar use of the same pre-1972 sound recording(s). (5) Legal sufficiency. The Copyright Office does not review opt-out notices submitted under paragraph (e)(1) of this section for legal sufficiency. The Office’s review is limited to whether the procedural requirements established by the Office (including payment of the proper filing fee) have been met. Rights owners are therefore cautioned to review and scrutinize opt-out notices to assure their legal sufficiency before submitting them to the Office. (6) Filing date. The date of filing of an opt-out notice is the date when a proper submission, including the prescribed fee, is received in the Copyright Office. (7) Fee. The filing fee to submit an opt-out notice pursuant to this section is prescribed in § 201.3(c). (f) Fraudulent filings. If the Register becomes aware of abuse or fraudulent filings under this section by or from a certain filer or user, she shall have the discretion to reject all submissions from that filer or user under this section for up to one year. Dated: January 30, 2019. Regan A. Smith, General Counsel and Associate Register of Copyrights. [FR Doc. 2019–00873 Filed 2–4–19; 8:45 am] BILLING CODE 1410–30–P VerDate Sep<11>2014 16:34 Feb 04, 2019 Jkt 247001 DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 4 RIN 2900–AQ43 Schedule for Rating Disabilities: Infectious Diseases, Immune Disorders, and Nutritional Deficiencies Department of Veterans Affairs. Proposed rule. AGENCY: ACTION: The Department of Veterans Affairs (VA) proposes to amend the section of the VA Schedule for Rating Disabilities (VASRD or Rating Schedule) that addresses infectious diseases and immune disorders. The purpose of these changes is to incorporate medical advances since the last revision, update medical terminology, and clarify evaluation criteria. The proposed rule considers comments from experts and the public during a forum held from January 31 to February 1, 2011, on revising this section of the VASRD. DATES: Comments must be received by VA on or before April 8, 2019. ADDRESSES: Written comments may be submitted through www.regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. NW, Room 1063B, Washington, DC 20420; or by fax to (202) 273–9026. (This is not a toll free number.) Comments should indicate that they are submitted in response to ‘‘RIN 2900–AQ43—Schedule for Rating Disabilities: Infectious Diseases, Immune Disorders, and Nutritional Deficiencies.’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461–4902 for an appointment. (This is not a toll free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Ioulia Vvedenskaya, M.D., M.B.A., Medical Officer, Part 4 VASRD Regulations Staff (211C), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461–9700. (This is not a toll-free telephone number.) SUPPLEMENTARY INFORMATION: As part of its ongoing revision of the VASRD, VA proposes changes to 38 CFR 4.88a, SUMMARY: PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 which pertains to chronic fatigue syndrome (CFS), and 38 CFR 4.88b, which pertains to the schedule of ratings for infectious diseases and immune disorders (we note that the proposed changes for § 4.88b exclude the schedule of ratings for nutritional deficiencies—diagnostic codes (DC) 6313, 6314, and 6315). VA last updated the schedule of ratings in § 4.88b on July 31, 1996 (see 61 FR 39875) and updated § 4.88a on July 19, 1995 (see 60 FR 37012). VA proposes to: (1) Update the medical terminology and definition of certain infectious diseases and immune disorders; (2) add medical conditions not currently in the Rating Schedule; (3) refine evaluation criteria based on medical advances that have occurred since the last revision; and (4) incorporate current understanding of functional changes associated with or resulting from disease (pathophysiology). A panel of independent experts convened by the Institute of Medicine (IOM) in February 2015 proposed an updated set of diagnostic criteria for infectious disease and immune disorders. This updated revision also included changing the name of CFS to ‘‘Systemic Exertion Intolerance Disease (SEID)/Chronic fatigue Syndrome (CFS).’’ VA has clear authority to make this regulatory change because of its broad authority to ‘‘prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by [VA] and are consistent with those laws.’’ 38 U.S.C. 501(a); see also 38 U.S.C. 1155 (VA’s authority to adopt and apply schedule for rating disabilities). § 4.88a Chronic Fatigue Syndrome Currently, § 4.88a specifies older diagnostic criteria for the diagnosis of CFS and uses outdated terminology to refer to this complex disease. VA proposes to update the nomenclature for this disease, which is also known as systemic exertion intolerance disease (SEID) or myalgic encephalomyelitis (ME), by changing the diagnostic code name to ‘‘Systemic Exertion Intolerance Disease (SEID)/Chronic Fatigue Syndrome (CFS).’’ This new name captures a central characteristic of the disease that reflects negative effects of any exertion (physical, cognitive, or emotional) on patients’ many organ systems. IOM (Institute of Medicine), Beyond Myalgic Encephalomyelitis/ Chronic Fatigue Syndrome: Redefining an Illness (2015), http://www.national academies.org/hmd/∼/media/Files/ Report%20Files/2015/ E:\FR\FM\05FEP1.SGM 05FEP1

Agencies

[Federal Register Volume 84, Number 24 (Tuesday, February 5, 2019)]
[Proposed Rules]
[Pages 1661-1678]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00873]

=======================================================================
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LIBRARY OF CONGRESS

37 CFR Part 201

[Docket No. 2018-8]

Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being
Commercially Exploited

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Copyright Office (``Copyright Office'' or ``Office'')
is issuing a notice of proposed rulemaking regarding the Classics
Protection and Access Act, title II of the recently enacted Orrin G.
Hatch-Bob Goodlatte Music Modernization Act. In connection with the
establishment of federal remedies for unauthorized uses of sound
recordings fixed before February 15, 1972 (``Pre-1972 Sound
Recordings''), Congress also established an exception for certain
noncommercial uses of Pre-1972 Sound Recordings that are not being
commercially exploited. To qualify for this exemption, a user must file
a notice of noncommercial use after conducting a good faith, reasonable
search to determine whether the Pre-1972 Sound Recording is being
commercially exploited, and the rights owner of the sound recording
must not object to the use within 90 days. After soliciting public
comments through a notice of inquiry, the Office is proposing
regulations identifying the specific steps that a user should take to
demonstrate she has made a good faith, reasonable search. The proposed
rule also details the filing requirements for the user to submit a
notice of noncommercial use and for a rights owner to submit a notice
objecting to such use.

DATES: Written comments must be received no later than 11:59 p.m.
Eastern Time on March 7, 2019. Meeting requests must be received no
later than 11:59 p.m. Eastern Time on March 18, 2019, and all meetings
must take place no later than Friday, March 22, 2019. The Office will
not consider requests to hold meetings after that date. So that the
Copyright Office is able to meet the statutory deadlines set forth in
the Music Modernization Act, no further extensions of time will be
granted in this rulemaking.

ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the regulations.gov system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through regulations.gov. Specific instructions
for submitting comments are available on the Copyright Office's website
at https://www.copyright.gov/rulemaking/pre1972-soundrecordings-noncommercial/. If electronic submission of comments is not feasible
due to lack of access to a computer and/or the internet, please contact
the Office using the contact information below for special
instructions.

FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and
Associate Register of Copyrights, by email at regans@copyright.gov or
Anna Chauvet, Assistant General Counsel, by email at
achau@copyright.gov. Each can be contacted by telephone by calling
(202) 707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

On October 11, 2018, the president signed into law the Orrin G.
Hatch-Bob Goodlatte Music Modernization Act, H.R. 1551 (``MMA''). Title
II of the MMA, the Classics Protection and Access Act, created chapter
14 of the copyright law, title 17, United States Code, which, among
other things, extends remedies for copyright infringement to owners of
sound recordings fixed before February 15, 1972 (``Pre-1972 Sound
Recordings''). Under the provision, rights owners may be eligible to
recover statutory damages and/or attorneys' fees for the unauthorized
use of their Pre-1972 Sound Recordings if certain requirements are met.
To be eligible for these remedies, rights owners must typically file
schedules listing their Pre-1972 Sound Recordings (``Pre-1972
Schedules'') with the U.S. Copyright Office, which are indexed into the
Office's public records.\1\ The filing requirement is ``designed to
operate in place of a formal registration requirement that normally
applies to claims involving statutory damages.'' \2\
---------------------------------------------------------------------------

\1\ 17 U.S.C. 1401(f)(5)(A)(i)(I)-(II).
\2\ H.R. Rep. No. 115-651, at 16 (2018); see S. Rep. No. 115-
339, at 18 (2018).
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The MMA also creates a new mechanism for members of the public to
obtain authorization to make noncommercial uses of Pre-1972 Sound

[[Page 1662]]

Recordings that are not being commercially exploited. Under section
1401, a person may file a notice with the Copyright Office and propose
a specific noncommercial use after taking steps to determine whether
the recording is, at that time, being commercially exploited by or
under the authority of the rights owner.\3\ Specifically, before
determining that the recording is not being commercially exploited, she
must first undertake a ``good faith, reasonable search'' of both the
Pre-1972 Schedules indexed by the Copyright Office and music services
``offering a comprehensive set of sound recordings for sale or
streaming.'' \4\ At that point, she may file a notice identifying the
Pre-1972 Sound Recording and nature of the intended noncommercial use
with the Office (a ``notice of noncommercial use'' or ``NNU'').\5\ The
Office will index this notice into its public records.\6\
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\3\ 17 U.S.C. 1401(c)(1)(A)-(B).
\4\ Id. at 1401(c)(1)(A).
\5\ Id. at 1401(c)(1)(B).
\6\ Id. at 1401(c)(1)(C).
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In response, the rights owner of the Pre-1972 Sound Recording may
file a notice with the Copyright Office ``opting out'' of (i.e.,
objecting to) the requested noncommercial use (``Pre-1972 Opt-Out
Notice''), and if the user nonetheless engages in the noncommercial
use, such use may subject the user to liability under section 1401(a)
if no other limitation on liability applies.\7\ The rights owner of the
Pre-1972 Sound Recording has 90 days from when the NNU is indexed into
the Office's public records to file a Pre-1972 Opt-Out Notice.\8\ If,
however, the rights owner does not opt-out within 90 days, the user may
engage in the noncommercial use of the Pre-1972 Sound Recording without
violating section 1401(a).\9\
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\7\ Id. at 1401(c)(1).
\8\ Id. at 1401(c)(1)(C).
\9\ Id. at 1401(c)(1).
---------------------------------------------------------------------------

Under the Classics Protection and Access Act, the Copyright Office
must issue regulations identifying the ``specific, reasonable steps
that, if taken by a [noncommercial user of a Pre-1972 Sound Recording],
are sufficient to constitute a good faith, reasonable search'' of the
Office's records and music services to support a conclusion that a
relevant Pre-1972 Sound Recording is not being commercially
exploited.\10\ A user following the ``specific, reasonable steps''
identified by the Office will satisfy the statutory requirement of
conducting a good faith search, even if the sound recording is later
discovered to be commercially exploited.\11\ Other searches may also
satisfy this statutory requirement, but the user would need to
independently demonstrate how she met the requirement if
challenged.\12\
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\10\ Id. at 1401(c)(3)(A).
\11\ Id. at 1401(c)(4)(B).
\12\ Id. at 1401(c)(4)(A)-(B).
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The Office must also issue regulations ``establish[ing] the form,
content, and procedures'' for users to file NNUs and rights owners to
file Pre-1972 Opt-Out Notices.\13\
---------------------------------------------------------------------------

\13\ Id. at 1401(c)(3)(B), (5)(A).
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On October 16, 2018, the Office issued a notice of inquiry
(``NOI'') soliciting comments regarding the specific steps a user
should take to demonstrate she has made a good faith, reasonable
search.\14\ The Office also solicited comments regarding the filing
requirements for the user to submit an NNU and for a rights owner to
submit a Pre-1972 Opt-Out Notice objecting to such use.\15\ In
response, the Office received ten initial comments and fifteen reply
comments, which are discussed further below.\16\ Having reviewed and
carefully considered the comments, the Office now issues a proposed
rule and invites further public comment.
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\14\ 83 FR 52176 (Oct. 16, 2018).
\15\ Id. at 52176.
\16\ The comments received in response to the NOI are available
online at https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=COLC-2018-0008. References to these comments are by party name
(abbreviated where appropriate), followed by either ``Initial'' or
``Reply,'' as appropriate.
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II. Proposed Rule

This document (the ``NPRM'') proposes regulatory language regarding
three specific areas: (i) The ``specific, reasonable steps that, if
taken by a [noncommercial user of a Pre-1972 Sound Recording], are
sufficient to constitute a good faith, reasonable search'' to support a
conclusion that a relevant Pre-1972 Sound Recording is not being
commercially exploited; \17\ (ii) the form, content, and procedures for
a user, having made such a search, to file an NNU; and (iii) the form,
content, and procedures for a rights owner to file a Pre-1972 Opt-Out
Notice.\18\
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\17\ 17 U.S.C. 1401(c)(3)(A).
\18\ The proposed rule also confirms that 37 CFR 201.4 does not
govern the filing of NNUs and Pre-1972 Opt-Out Notices. Similarly,
the proposed rule makes a technical edit to reflect that the filing
of notices of use of sound recordings under statutory license (17
U.S.C. 112(e), 114) are not governed by 37 CFR 201.4.
---------------------------------------------------------------------------

In proposing the following regulatory language, the Office also
confirms, as requested by multiple commenters, that the noncommercial
use exception under section 1401(c) is supplementary, and does not
negate other exceptions and limitations that may be available to a
prospective user, including fair use and the exceptions for libraries
and archives.\19\ Section 1401(f) separately provides that ``the
limitations on the exclusive rights of a copyright owner described in
section 107, 108, 109, 110, and 112(f) shall apply to a claim under
[section 1401(a)] with respect to a sound recording fixed before
February 15, 1972,'' as well as the section 512 limitation on liability
relating to material online.\20\ Further, section 1401(c) states that
whether ``a person files notice of a noncommercial use of a sound
recording'' or ``a rights holder opts out of a noncommercial use of a
sound recording,'' that ``does not itself enlarge or diminish any
limitation on the exclusive rights of a copyright owner described in
section 107, 108, 109, 110, or 112(f) as applied to a claim under
[section 1401(a)].'' \21\ These other exceptions and limitations are
available to users whether or not they claim the exception for
noncommercial use.\22\ Regarding fair use specifically, the Office
notes that although certain noncommercial uses may constitute fair use,
not all may be fair; instead, courts will balance the purpose and
character of the use against the other fair use factors.\23\
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\19\ See ARSC Reply at 1 (addressing interplay between section
1401(c) and section 107); Music Library Association Initial at 1
(same); Electronic Frontier Foundation (``EFF'') Initial at 2
(same); Future of Music Coalition (``FMC'') Reply at 2 (same);
Library Copyright Alliance (``LCA'') Initial at 1-2 (addressing
interplay between section 1401 and section 108).
\20\ 17 U.S.C. 1401(f)(1)(A); (3).
\21\ Id. at 1401(c)(2)(C), (c)(5)(B).
\22\ See EFF Initial at 2 (``The Copyright Office should
emphasize . . . that fair use will apply (or not) regardless of
whether a potential user files a notice of use, and regardless of
whether a rightsholder opts out.'').
\23\ See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584-
85 (1994) (noting ``the commercial or nonprofit educational
character of a work is `not conclusive' '' to fair use (quoting Sony
Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 448
(1984))); H.R. Rep. No. 94-1476, at 66 (1976) (same).
---------------------------------------------------------------------------

Similarly, multiple stakeholders commented that the noncommercial
use exception should not affect application of the section 108(h)
exception available for libraries and archives performing a reasonable
investigation regarding the availability of published works in the last
twenty years of their copyright term.\24\ These commenters rightly note

[[Page 1663]]

that sections 1401(c) and 108(h) contain differing statutory criteria
regarding the type of search or investigation that must be made before
making use of the respective exceptions, and the present rulemaking is
focused on administering the exception for Pre-1972 Sound Recordings
under section 1401(c).\25\ Moreover, section 108(h) is not limited to
sound recordings (much less Pre-1972 Sound Recordings); as discussed
below, the proposed regulations governing a ``good faith, reasonable
search'' for purposes of section 1401(c) specifically consider the
various ways sound recordings are brought to market.
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\24\ See Copyright Alliance Initial at 2 n.3 (stating that ``any
conclusions made in determining what constitutes a `good faith,
reasonable search' for commercial exploitation of a pre-72 sound
recording [do] not have any bearing on the meaning or scope of the
`reasonable investigation' requirement within Section 108(h)''); LCA
Initial at 1-2 (stating that section 1401 procedures should not
apply to libraries and archives employing section 108(h)); American
Association of Independent Music (``A2IM'') & Recording Industry
Association of America, Inc. (``RIAA'') Reply at 9 (``[W]e agree
with LCA that there is not an exact match between the language in
Sections 1401(c) and 108(h) regarding the nature of the search that
must be conducted before the relevant provision becomes
applicable.'').
\25\ See, e.g., Copyright Alliance Initial at 3; LCA Initial at
2.
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Finally, the Copyright Office keenly appreciates that ``some of the
users hoping to use [Pre-1972 Sound Recordings] may not have much
copyright law background.'' \26\ In connection with the Office's
overall public information and education initiatives and the
promulgation of a final rule, the Office intends to prepare additional
public resources regarding Pre-1972 Sound Recordings and the new
noncommercial use exception, including potentially a public circular.
By the same token, the Office appreciates A2IM and RIAA's view that
``the average person knows full well how to construct an effective
internet search designed to uncover a very specific item or information
for which they are looking,'' and so while the proposed rule does not
presume an expertise in copyright, it does presume a functional search
capability on the part of a human user.\27\
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\26\ FMC Reply at 6; see also AAU Initial at 1.
\27\ A2IM & RIAA Reply at 10; see also internet Archive Initial
at 1 (``Human searchers should be able to search a couple of
services quite thoroughly.'').
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A. Good Faith, Reasonable Search

The proposed rule identifies five steps (six in the case of Alaska
Native and American Indian ethnographic sound recordings) that, if
taken, will support a conclusion that a relevant Pre-1972 Sound
Recording is not being commercially exploited.\28\ Consistent with the
statute's directive to provide ``specific'' steps that are
``sufficient, but not necessary'' to demonstrate a Pre-1972 Sound
Recording is not being commercialized, the rule adopts a ``checklist''
\29\ approach for users to search across categories rather than an
``open-ended'' approach to better provide certainty to users.\30\ The
proposed rule divides various types of sources into different
categories, and requires users to progressively search in each category
(if and until a match is found, with a match evidencing commercial
exploitation of the Pre-1972 Sound Recording).\31\ Categories to be
searched are listed in recommended search order, to reduce the
likelihood of duplicative searching.\32\ Because in some cases, the
type of recording (e.g., classical music, jazz, or ethnographic sound
recordings) may warrant searching an additional resource or more
particularized search criteria, such additional criteria are included
on a tailored basis, as applicable to a particular genre.
---------------------------------------------------------------------------

\28\ 17 U.S.C. 1401(c)(3)(A).
\29\ Copyright Alliance Initial at 3 (suggesting the checklist
``should represent the minimum requirements of a reasonable search
and recognize that each individual case will be different and will
likely require additional steps'').
\30\ EFF Reply at 3 (suggesting that an open-ended rule ``would
give potential users no added certainty, making the safe harbor
meaningless''); see Wikimedia Foundation Reply at 2 (same).
\31\ See A2IM &RIAA Initial at 4 (describing category-based
search structure).
\32\ See id. at 4, 7 (proposing prioritized search from
``broad'' to ``narrow'' categories and methodology that minimizes
``duplicative searches''); Public Knowledge Initial at 2 (advocating
avoidance of ``duplicative'' searching).
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In short, the rule proposes searching the following:
1. The Copyright Office's database of Pre-1972 Schedules;
2. One of the following major search engines: Google, Yahoo!, or
Bing;
3. One of the following major streaming services: Amazon Music
Unlimited, Apple Music, Spotify, or TIDAL;
4. The SoundExchange ISRC database;
5. Amazon.com, and, where the prospective user reasonably believes
the recording implicates a listed niche genre, an additional listed
retailer of physical product; and
6. In the case of ethnographic Pre-1972 Sound Recordings of Alaska
Native or American Indian tribes or communities, searching through
contacting the relevant tribe, association, and/or holding institution
The NOI generated a wide range of helpful comments from a rich
variety of perspectives, and the proposed rule represents a compromise
amongst those views. While this NPRM will no doubt draw out additional
thoughtful comments, the Office is optimistic that this proposed rule
strikes an appropriate balance, achieving the goal of crafting a
practical rule with steps that are reasonable to expect of an
individual user, yet exhaustive enough to qualify that user for a safe
harbor as to the search's sufficiency from the perspective of rights
owners' interests. Although a range of stakeholders agreed in principle
with this goal,\33\ views differed as to how many steps should
constitute a ``good faith, reasonable search.'' For example, Public
Knowledge suggested that users need only search the Office's database
of Pre-1972 Schedules and ``no more than one to two'' streaming
services,\34\ while A2IM and RIAA proposed nine categories of steps to
be searched.\35\ In synthesizing the public comments, the Copyright
Office notes that the statute expressly contemplates searching on
multiple services, including those offering sound recordings ``for
sale'' \36\ in addition to streaming services, and a congressional
report characterizing the search requirement as ``robust.'' \37\
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\33\ See, e.g., Public Knowledge Initial at 2 (``The goal is . .
. to strike a practical balance between the interests of rights
owners and potential users.''); A2IM & RIAA Reply at 2 (``[T]he
Office has an obligation to respect and preserve the careful balance
struck by Congress in enacting Section 1401(c).'').
\34\ Public Knowledge Initial at 5, App.
\35\ A2IM & RIAA Initial at 4-6.
\36\ 17 U.S.C. 1401(c)(1)(A)(ii); see id. at 1401(c)(3)(A)
(directing the Register to issue regulations identifying ``services
offering a comprehensive set of sound recordings for sale or
streaming'' to be searched).
\37\ Report and Section-by-Section Analysis of H.R. 1551 by the
Chairmen and Ranking Members of Senate and House Judiciary
Committees, at 25 (2018), https://www.copyright.gov/legislation/mma_conference_report.pdf (``Conf. Rep.'').
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In proposing this rule, the Copyright Office is also mindful of the
individual and smaller-group interests from both rights owner and
licensee or other user perspectives. The Office is concerned that
limiting sources to be searched to only the most commercially popular
services might obscure perspectives of ``smaller, less mainstream
creators'' and independent services who themselves play a vital role in
ensuring that a diverse array of cultural contributions are created and
made available to the public.\38\ As FMC notes, artists may
deliberately ``target niche markets and collectors--sometimes with
careful remastering and extensive historical information,'' or may opt
not to make their entire catalog available on mainstream streaming
services.\39\ The proposed rule attempts to account for the diversity
of practices and leave room for these competing business models to
innovate and flourish. But the proposed

[[Page 1664]]

rule also takes into account smaller users. It tries to prioritize
services with intuitive search capabilities and minimize resources
where a subscription is required to access the search function;
further, the categories to be searched--with the potential exception of
interactive streaming services, which all commenters agree are
statutorily required to be included in a search--are all available at
no cost to the user.\40\ As noted below, the Office has declined to
include various suggestions that might be redundant or overly
burdensome, and some criteria are included only as applicable to a
particular genre of work. The proposed rule also does not require
``consultation with an experienced music clearance professional,''
although the Office does not discourage such consultation, which may
prove helpful to a user planning a wide-scale or complex use case.\41\
---------------------------------------------------------------------------

\38\ FMC Reply at 1-2; see also Copyright Alliance Initial at 1
(discussing relationship between ``existing general and niche
markets''); A2IM & RIAA Reply at 9 (listing a variety of specialized
storefronts and discussing period or niche recordings ``not
previously available through comprehensive streaming services like
Spotify and Apple Music''); IMSLP.ORG Reply at 2 (classical music
storefront).
\39\ FMC Reply at 3.
\40\ See Public Knowledge Initial at 6 (``It would be
inappropriate for the Copyright Office to require that a user search
the catalog of a service where a subscription is required to access
the search function.''). Public Knowledge would include Amazon Music
Unlimited and Apple Music as proposed services to search, which are
not free, and other services may require a paid subscription to
enable more robust search features. See also A2IM & RIAA Reply at 5
(``[T]he cost of any necessary subscriptions is not very high,
especially when considering the availability of free trials for
premium services and free basic tiers for most services.'').
\41\ A2IM & RIAA Initial at 9.
---------------------------------------------------------------------------

In proposing the following search criteria, the Office agrees with
various rights holders that the noncommercial use exception is not
intended to displace the important role of licensed transactions to
facilitate the use of Pre-1972 Sound Recordings.\42\ Indeed, a main
thrust of Title II is to ``create royalties'' for these works using the
same rates and distribution system already applicable for post-72
works, particularly by music services that previously used pre-1972
works ``while paying royalties for post-72 works.'' \43\ In this
rulemaking, Copyright Alliance has asked the Office to require a user
to directly notify a rights owner if that owner can be located.\44\
While the Office agrees that, practically speaking, the noncommercial
use exception may be unavailable for many works where the rights owner
is readily identifiable since those works are more likely to be
commercially exploited,\45\ the statute does not require users to
contact rights owners or determine that they cannot be located before
relying on the section 1401(c) exception.\46\ Instead, the purpose of
the good faith, reasonable search is ``to determine whether the sound
recording is being commercially exploited by or under the authority of
the rights owner.'' \47\ Although the Conference Report states that the
noncommercial use exception is ``provided primarily to enable use of
older recordings where it may not be clear to a user how to contact the
rights owner to ask for permission,'' \48\ use of the word
``primarily'' indicates that Congress contemplated situations where the
rights owner may be known to the user, but the owner has ceased or
otherwise refrained from commercially exploiting the sound recording.
In any event, comments suggest that a large array of Pre-1972 Sound
Recordings do not have an identifiable owner, in which cases a
prospective user making use of the section 1401(c) safe harbor and
filing an NNU can expect to benefit from this additional exception.\49\
---------------------------------------------------------------------------

\42\ See, e.g., id. at 1-2 (suggesting that in many cases,
voluntary licensing may prove more efficient within a short
timeframe than this exception); Copyright Alliance Initial at 2-3
(stating the noncommercial uses exception ``should not be used to
circumvent the normal licensing process or as a substitute for
requesting permission from rights owners who can be contacted'');
SoundExchange Initial at 2.
\43\ S. Rep. No. 115-339, at 17-18 (2018); see H.R. Rep. No.
115-651, at 15 (2018); 17 U.S.C. 1401(b), (d) (addressing payment of
royalties pursuant to the rates and terms adopted under sections
112(e) and 114(f) or direct licensing).
\44\ Copyright Alliance Initial at 2-3, 5.
\45\ See, e.g., A2IM & RIAA Initial at 1-2; SoundExchange
Initial at 2; FMC Reply at 6 (``We largely agree with RIAA's
contextualization of 1401(c), as not oriented to cases where the
current rights owner is known or `reasonably capable of discovery.'
''); but see LCA Reply at 1.
\46\ 17 U.S.C. 1401(c)(1)(A); see also EFF Initial Comments at
2.
\47\ 17 U.S.C. 1401(c)(1)(A).
\48\ Conf. Rep. at 25 (emphasis added).
\49\ Association for Recorded Sound Collections (``ARSC'') Reply
at 2 (citing data suggesting that rights owner is unidentifiable for
16% of pre-1965 recordings, and up to 26% for certain categories
like 1920-1929 or popular and rock recordings); see also Public
Knowledge Initial at 3 (``The number of pre-1972 sound recordings
that are still being commercially exploited are vastly outnumbered
by those that have no commercial value or interest.'').
---------------------------------------------------------------------------

Similarly, multiple commenters pointed out differences between
section 1401(c)'s requirement to identify whether a work is being
commercially exploited with prior proposals regarding orphan works,
including a 2008 bill which provided a description of a ``qualifying
search, in good faith, to locate and identify the owner of the
infringed copyright'' before making use of an orphan work.\50\ For
these reasons, while the Office hopes that the MMA's noncommercial use
provision may well prove to yield useful insights into the broader
orphan works debate, the proposed rule is necessarily tailored to the
sui generis noncommercial use exception for Pre-1972 Sound Recordings
and was not crafted to specifically address that ongoing debate.\51\
---------------------------------------------------------------------------

\50\ See EFF Initial at 2; Public Knowledge Reply at 7; Shawn
Bentley Orphan Works Act of 2008, S. 2913, 110th Cong. sec.
514(b)(1) (as passed by Senate, Sept. 26, 2008); see also U.S.
Copyright Office, Orphan Works and Mass Digitization (2015), https://www.copyright.gov/orphan/reports/orphan-works2015.pdf; A2IM & RIAA
Initial at 10 (agreeing with categorical approach adopted in the
2008 bill, but ``find[ing] the steps outlined there to be too
generic'' for section 1401(c)); IMSLP.ORG Reply at 1 (maintaining
that the ``diligent effort'' requirement in the 2008 bill is too
general, and that having a ``detailed list of steps required to
satisfy the search requirement for services'' would be more
helpful). To the extent commenters suggested that the 2008 bill is
helpful to highlight specific aspects of a proposed search step, it
is addressed further below.
\51\ See Conf. Rep. at 15; S. Rep. No. 115-339, at 18 (2018)
(noting sui generis nature of exception).
---------------------------------------------------------------------------

Finally, while the proposed rule is intended to take into account
the current music marketplace, Congress has provided regulatory
flexibility so that the Copyright Office may periodically update its
list of specific steps to take into account changes in the music
landscape, and the Office expects to exercise that authority as
warranted by changes in the marketplace.\52\
---------------------------------------------------------------------------

\52\ See Conf. Rep. at 25 (noting search must be based on
``services available in the market at the time of the search'');
A2IM & RIAA Initial at 7.
---------------------------------------------------------------------------

i. Required Sources To Search
1. Searching the Copyright Office's Database of Pre-1972 Schedules
First, section 1401(c) requires that for a search to constitute a
good faith, reasonable search, the search must include searching for
the Pre-1972 Sound Recording in the Copyright Office's database of Pre-
1972 Schedules.\53\ The Office has issued an interim rule governing how
rights owners may file Pre-1972 Schedules and how they are made
publicly available through an online database.\54\ For each sound
recording, the Pre-1972 Schedule

[[Page 1665]]

must include the rights owner's name, the sound recording title, and
the featured artist, and rights owners may opt to include additional
information, such as album title.\55\
---------------------------------------------------------------------------

\53\ 17 U.S.C. 1401(c)(1)(A)(i), (f)(5)(A). Public Knowledge
asks the Office to ``explore whether it possesses the authority to
institute a limited renewal requirement, under which entries in
[Pre-1972 Schedules] would be subject to a periodic renewal in the
same vein as DMCA agent designations.'' Public Knowledge Reply at
17; see 37 CFR 201.38(c)(4) (requiring DMCA agent designation to be
updated every three years); see also 17 U.S.C. 512(c)(2)(B)
(requiring the Register to ``maintain a current directory'' of
agents). Section 1401 does not explicitly reference the need for
periodic renewal of Pre-1972 Schedules, although it does apply
different terms of protection to Pre-1972 Sound Recordings depending
upon their year of first publication. 17 U.S.C. 1401(a)(2). The
Office does not propose such a requirement at this time (and notes
that substantive comments in its contemporaneous rulemaking
regarding Pre-1972 Schedules did not raise this issue). The Office
is open, however, to exploring the need and regulatory authority for
such a renewal requirement for Pre-1972 Schedules (or NNUs) at a
later date, perhaps in connection with periodic review of the search
requirements promulgated under this rule.
\54\ 83 FR 52150 (Oct. 16, 2018).
\55\ 37 CFR 201.35(d). The Office expects to issue a final rule
regarding the filing of Pre-1972 Schedules, which will ask rights
owners to provide the International Standard Recording Code
(``ISRC'') (if known), and to optionally provide the version,
alternate artist name(s), and Universal Product Code (``UPC''). This
expansion of fields accommodates comments in that parallel
proceeding, and should ease user concerns about disambiguating data.
See A2IM, RIAA & SoundExchange Comments re Filing of Schedules by
Rights Owners and Contact Information by Transmitting Entities
Relating to Pre-1972 Sound Recordings at 7-8 (requesting addition of
ISRC number, sound recording version, and alternate artist name
fields); EFF Initial at 3 (discussing searches of the Office's
database of Pre-1972 Schedules).
---------------------------------------------------------------------------

For this rulemaking, the proposed rule would require users to
search for the title and featured artist(s) of the Pre-1972 Sound
Recording. If the user knows any of the following attributes of the
Pre-1972 Sound Recording, the search must also include searching:
Alternate artist name(s), alternate title(s), album title, and the
International Standard Recording Code (``ISRC''). The user may also
optionally search any other attributes known to the user of the sound
recording, such as label, version, or Universal Product Code (``UPC'').
The following fields in the Office's database of Pre-1972 Schedules
will be searchable: Rights owner, sound recording title (which includes
alternate titles), album, label, featured artist (which includes
alternate artist name(s)), and ISRC. In response to comments, the
Office is pleased to report that its database of Pre-1972 Schedules
already allows for wildcard searching by using an asterisk to fill in
partial words.\56\ A user can export and download the search results
based on those fields into an Excel spreadsheet to view (and search)
additional data, such as version or UPC.
---------------------------------------------------------------------------

\56\ See, e.g., A2IM & RIAA Initial at 6; Copyright Alliance
Initial at 4; EFF Initial at 3. For example, a search for ``light*''
in the title field currently returns, among other titles, ``(In The)
Cold Light Of Day,'' ``Harbor Lights,'' ``White Lightnin','' and
``White Lightning.'' See Schedules of Pre-1972 Sound Recordings,
U.S. Copyright Office, https://copyright.gov/music-modernization/pre1972-soundrecordings/search-soundrecordings.html (last visited
Jan. 28, 2019). The Office has updated the search instructions on
its database web page so users are aware of this search capability.
While the current technology does not permit ``fuzzy'' searching,
that limitation is also noted on the web page to guide user
expectations.
---------------------------------------------------------------------------

2. Searching With a Major Search Engine
Second, the proposed rule asks the user to search for the Pre-1972
Sound Recording using at least one major search engine, namely: Google,
Yahoo!, or Bing, to determine whether the sound recording is being
commercially exploited.\57\ Users are widely accustomed to conducting
internet searches, and such searching is free and may render searching
on a streaming service or other service unnecessary. For example, a
search on the phrase ``rockin around the christmas tree'' using
Google--to locate the 1958 recording ``Rockin' Around the Christmas
Tree'' featuring artist Brenda Lee--shows, among other things, that the
sound recording is available for streaming on Spotify, Google Play
Music, Deezer, and Apple Music.\58\ Similarly, a search on the combined
phrases ``rockin around the christmas tree'' and ``purchase'' using
Google shows that the same sound recording is available for sale as an
.mp3 file download and on a compact disc through Amazon.com. The
proposed rule, as well as the Office's form or instructions, will make
clear this search is to determine whether the Pre-1972 Sound Recording
is being commercially exploited (i.e., by being offered for sale in
download form or as a new (not resale) physical product, or through a
streaming service), and not simply whether the internet includes web
pages discussing the recording, such as musicological, historical, or
other commentary about the work.
---------------------------------------------------------------------------

\57\ See A2IM & RIAA Initial at 5; Copyright Alliance Initial at
4; FMC Reply at 6 (each suggesting that major search engines should
be searched).
\58\ Google, https://www.google.com/search?client=firefox-b-1-ab&q=%E2%80%9Crockin+around+thechristmastree%E2%80%9D (last visited
Jan. 28, 2019).
---------------------------------------------------------------------------

3. Searching on a Digital Streaming Service
Third, the proposed rule asks the user to search at least one of
the following streaming services, each of which offers tens of millions
of tracks: \59\ Amazon Music Unlimited,\60\ Apple Music,\61\
Spotify,\62\ or TIDAL.\63\ The Office proposes these streaming services
because, among the commenters who proposed specific streaming services
to search, there appears to be agreement on these services in
particular.\64\ In addition, these services currently offer some of the
largest repertoires of tracks and ``receive digital feeds from the
major labels, large indie labels and significant distributors.'' \65\
The Office invites public comment on whether Google Play Music and/or
Deezer should be included in the list of streaming services, as they
also offer large repertoires of tracks but were not identified as
possible sources from as many commenters.
---------------------------------------------------------------------------

\59\ A2IM & RIAA Initial at 5.
\60\ Amazon, Amazon Music: What is Amazon Music Unlimited?,
https://www.amazon.com/gp/help/customer/display.html?nodeId=202059460 (last visited Jan. 28, 2019) (stating
Amazon Music Unlimited offers 50+ million tracks).
\61\ Apple, Apple Music, https://www.apple.com/apple-music/
(last visited Jan. 28, 2019) (stating Apple Music offers 50+ million
tracks).
\62\ Spotify, Spotify Investors, https://investors.spotify.com/home/default.aspx (last visited Jan. 28, 2019) (stating Spotify
offers 40+ million tracks).
\63\ TIDAL, What is TIDAL, https://support.tidal.com/hc/en-us/articles/202992312-About-TIDAL (last visited Jan. 28, 2019) (stating
TIDAL offers 57+ million tracks).
\64\ A2IM & RIAA Initial at 7 (identifying Amazon Music
Unlimited, Apple Music, Spotify and TIDAL as possible streaming
services to search); EFF initial at 4 (identifying Amazon Music,
Apple Music, Spotify, and TIDAL as possible streaming services to
search); Public Knowledge Initial at 5, App. (identifying Amazon
Music Unlimited, Spotify, and Apple Music as possible streaming
services to search).
\65\ A2IM & RIAA Initial at 5.
---------------------------------------------------------------------------

A spectrum of commenters suggested that the rule should require a
user to search multiple, but not all, such streaming services.\66\
While it is clear that these services' repertoires are not identical--
including because some rights owners may engage in exclusive streaming
arrangements \67\--commenters also noted that searching multiple
streaming services might be duplicative.\68\ For example, internet
Archive, citing its own efforts to ``automat[e] the process of
searching for commercial availability at scale,'' suggests that a good
faith, reasonable search ``should entail performing a few high quality
searches on a small number of large services rather than performing a
low quality search across a large number of services.'' \69\ The Office
invites comment on whether users should be required to search a greater
number of these services.
---------------------------------------------------------------------------

\66\ Id. at 7 (proposing users search on two services including,
among others, Amazon Music Unlimited, Apple Music, Spotify and
TIDAL); EFF Initial at 4 (contending that ``[r]easonable to include
some subset'' of services including, among others, Amazon Music,
Apple Music, Spotify, and TIDAL); Public Knowledge Initial at 5,
App. (proposing search of ``no more than one to two'' of the
following services: Amazon Music Unlimited, Spotify, or Apple
Music).
\67\ Recording Academy Reply at 4 (suggesting the rule should
require searching of more than two services).
\68\ A2IM & RIAA Initial at 7; Public Knowledge Initial at 2.
\69\ Internet Archive Initial at 1.
---------------------------------------------------------------------------

The Office agrees that requiring repetitive searches of all these
streaming services would likely be redundant. Instead, as explained
further below, because Pre-1972 Sound Recordings can also be expected
to be commercially exploited outside of these services, the proposed
rule would limit the number of streaming services to be searched, but
add qualitatively different sources to

[[Page 1666]]

search, such as major search engines, the SoundExchange ISRC lookup
tool, and, for certain niche genres, other specific resources. By
requiring searches on only one of these comprehensive streaming
services, the proposed rule also minimizes the potential financial
burden on prospective users. To be sure, A2IM and RIAA note that the
cost of these subscription services are ``not very high,'' suggesting
that it is not unreasonable to ask users ``to take on a handful of
short-term subscription payments in order to gain a royalty-free
license to valuable sound recordings.'' \70\
---------------------------------------------------------------------------

\70\ A2IM & RIAA Reply at 5-6 (noting similar requirement in
2008 Shawn Bentley Orphan Works Bill).
---------------------------------------------------------------------------

IMSLP.ORG contends that users conducting a good faith, reasonable
search under section 1401(c) should be able to search streaming
services using ``Application Programming Interfaces (APIs) officially
supported by the relevant service,'' as APIs ``considerably decrease
the cost of performing such searches with no loss of accuracy.'' \71\
The Office invites public comment on whether the proposed rule should
address whether users should be able to use officially-supported APIs
to search and locate a Pre-1972 Sound Recording on a streaming service.
---------------------------------------------------------------------------

\71\ IMSLP.ORG Reply 2.
---------------------------------------------------------------------------

4. Searching With the SoundExchange ISRC Lookup Tool
Fourth, the proposed rule asks the user to search for the Pre-1972
Sound Recording using the free online SoundExchange ISRC lookup tool
(located at https://isrc.soundexchange.com/#!/search) to search
SoundExchange's database, which contains information for more than 27
million sound recordings, including Pre-1972 Sound Recordings.\72\ An
overwhelming number of stakeholders representing rights owners
recommended inclusion of the SoundExchange ISRC lookup tool as an
important category of search.\73\ For its part, SoundExchange
characterizes its database as ``quite possibly the most authoritative
and comprehensive database of sound recordings that have otherwise been
commercially exploited.'' \74\ On the other hand, Public Knowledge
objects to including this lookup tool because it is not itself a
``service[ ] offering a comprehensive set of sound recordings for sale
or streaming.'' \75\
---------------------------------------------------------------------------

\72\ SoundExchange Initial at 2-3.
\73\ See A2IM & RIAA Initial at 5 (rights owners provide
metadata to SoundExchange ``for royalty collection, which is a form
of commercial exploitation''); Copyright Alliance Initial at 5
(``SoundExchange's ISRC search tool should be searched, as it
provides a vast library of information concerning sound recordings
that are submitted by rights owners and their authorized
representatives to SoundExchange for the purpose of collecting
royalties, which is a form of commercial exploitation'');
SoundExchange Initial at 2-14; FMC Reply at 6 (stating that the
SoundExchange ISRC lookup tool is ``eminently useful'' and that
inclusion of a sound recording in this database ``is an unambiguous
indicator that a recording is being commercially exploited'');
Recording Academy Reply at 3 (``SoundExchange's ISRC Search tool is
indispensable to a good faith, reasonable search.'').
\74\ SoundExchange Initial at 2.
\75\ Public Knowledge Reply at 10 (citing 17 U.S.C.
1401(c)(1)(A)(ii)).
---------------------------------------------------------------------------

Because the ISRC lookup tool allows users to freely and easily
search a deep trove of sound recording information that rights owners
themselves have submitted in connection with commercializing those
recordings, including on multiple streaming services, the proposed rule
tentatively concludes it is desirable and appropriate to include this
tool as a step in a sufficient good faith, reasonable search. A few
considerations buttress this conclusion. First, rights owners register
and provide these data regarding their sound recordings so they can be
paid for their use under the statutory and direct licenses administered
by SoundExchange, including the compulsory licenses applicable for
internet radio, satellite radio, cable TV music services, streaming
into business establishments, and other services.\76\ As a result, the
database provides indicia of exploitation on a wide expanse of music
services that the Office does not otherwise propose searching before a
user may qualify for the safe harbor under section 1401(c) (e.g.,
Pandora, Sirius XM, iHeartRadio, MusicChoice, and over 3,100 other non-
interactive digital streaming services).\77\ While not disputing that
these types of non-interactive services are exploiting Pre-1972 Sound
Recordings, Public Knowledge and others propose excluding non-
interactive services ``because they are not usefully searchable for
specific tracks.'' \78\ But unlike other parts of the copyright law,
the reference to ``services'' in section 1401(c) does not distinguish
between non-interactive and ``interactive services.'' \79\ Given the
acknowledged commercial exploitation on non-interactive services, it
seems reasonable for a good faith search to cover this broader array of
services. Second, this database appears to offer user friendly and
granular results available for these recordings. Using the lookup tool
is free, without requiring the user to establish an account, take a
subscription, or convey any personal information.\80\ It also
apparently receives high marks regarding search confidence and ease,
employing fuzzy matching and wildcard searching that a broad spectrum
of commenters concur is helpful in gauging the accuracy of results.\81\
Third, the information in the ISRC database is populated and verified
by rights owners themselves, allaying concerns that inaccurate
information may lead prospective users astray.\82\ The uneven quality
of publicly accessible music repertoire data is well-documented and
indeed, an animating issue that the Music Modernization Act seeks to
address in the context of the section 115 license.\83\ As SoundExchange
attests, ``even when SoundExchange learns

[[Page 1667]]

from a service of a putative recording not represented in its
repertoire database, SoundExchange will not reflect the recording in
its repertoire database unless identifying information for the
recording is provided by the rights owner or authorized representative
of the rights owner.'' \84\
---------------------------------------------------------------------------

\76\ SoundExchange Initial at 2-3 (``[R]ights owners and their
representatives made a conscious choice to register with
SoundExchange and submit their repertoire metadata to allow them to
be paid for uses of their works under the statutory licenses and
direct licenses administered by SoundExchange.'').
\77\ See SoundExchange, Who Pays SoundExchange: Q3 2018, https://www.soundexchange.com/wp-content/uploads/2016/09/2018-Jan-Sept-Licensee-List.pdf.
\78\ Public Knowledge Initial at 6; see also EFF Initial at 4
(proposing to exclude ``services like Pandora and Sirius XM''
because they ``do not offer granular searches for particular
recordings'' but supporting a potential search requirement of music
distribution services that supply works to such services); cf.
Recording Academy Reply at 3 (``Excluding entirely non-interactive
services that utilize the Section 114 statutory license would
immediately render a search to determine if a track is being
commercially exploited both unreasonable and in bad faith.'').
\79\ Compare 17 U.S.C. 1401(c)(1), (3) with 17 U.S.C. 114(d)(2)-
(3), (e)(2) (j)(6)-(7) (various provisions distinguishing between
interactive and non-interactive services).
\80\ See Public Knowledge Initial at 6 (advocating ``free-to-
search''); EFF Initial at 4 (sources should be ``searchable without
a paid subscription, and without requiring users to disclose
personal information''); Wikimedia Foundation at 5 (same).
\81\ See, e.g., Wikimedia Foundation at 5 (discussing potential
``deficiencies in the searchability of the specified databases,''
such as errors or ``the presence of absence of `the' in names or
titles''); EFF Initial at 3 (search results are limited by
characteristics of the software as well as search terms used);
Internet Archive Initial (stressing importance of ``high quality''
searches); A2IM & RIAA at 2 (importance of fuzzy matching and
wildcard searching); Copyright Alliance Initial at 4 (same regarding
Office's database).
\82\ See, e.g., Internet Archive Initial at 2 (expressing
concern that Spotify database includes ``unlicensed'' recordings);
Public Knowledge Reply at 11 (objecting to YouTube being included in
search steps as unlicensed content is not ``by or under the
authority of the rights holder''; expressing concerns about resale
or imported physical media).
\83\ See U.S. Copyright Office, Copyright and the Music
Marketplace 184 (2015), https://www.copyright.gov/policy/musiclicensingstudy/copyright-and-the-music-marketplace.pdf; H.R.
Rep. No. 115-651 at 8 (``Music metadata has more often been seen as
a competitive advantage for the party that controls the database,
rather than as a resource for building an industry on''; noting that
the database required by the legislation will include a variety of
sound recording information); see also SoundExchange Initial at 43
(``Many digital music services operating under the statutory
licenses have (or at least report to SoundExchange) very low quality
data identifying the recordings they use.'').
\84\ SoundExchange Initial at 4.
---------------------------------------------------------------------------

The Office does not read section 1401(c) so narrowly as to preclude
searching resources--such as the SoundExchange ISRC lookup tool or
major search engines--that are used ``to determine whether'' a Pre-1972
Sound Recording is being commercially exploited on services offering a
comprehensive set of sound recordings for sale or streaming.\85\ Such
cross-platform tools can quickly reveal information relevant to whether
a recording is being used on a variety of services that are
unequivocally involved in commercially exploiting the sound recordings,
but of which the Office does not propose searching for purposes of this
safe harbor, as noted further below. To exclude reliance upon these
sources would hamper the Office's ability to craft a smaller list of
``specific, reasonable steps'' that a user may take before filing a
NNU.\86\ Requiring a prospective user to search the ISRC lookup tool is
thus expected to serve as a reasonable proxy for searches on a wide
array of services that offer a comprehensive set of sound recordings
for sale or streaming, and specifically, to address stakeholder
concerns (from both the prospective user and rights owner perspectives)
that it is otherwise difficult to determine exploitation by non-
interactive services that offer limited user search capability.\87\
---------------------------------------------------------------------------

\85\ 17 U.S.C. 1401(c)(1)(A) (emphasis added).
\86\ Cf. Public Knowledge Initial at 2, 6 (suggesting search
requirements should be ``proportional'').
\87\ See 17 U.S.C. 1401(c)(1)(A); (3). Compare Copyright
Alliance Reply at 2-3; FMC Reply at 4; and Recording Academy Reply
at 3 (expressing concerns related to rights owner interests) with
EFF Initial at 4 and Public Knowledge Initial at 2 (expressing
concerns related to user perspectives).
---------------------------------------------------------------------------

5. Searching Sellers of Physical Product
Fifth, the proposed rule asks the user to search for the Pre-1972
Sound Recording on at least one major seller of physical product,
namely Amazon.com, and if the user reasonably believes that the sound
recording is of a niche genre such as classical music (including opera)
or jazz, one smaller online music store offering recordings in that
niche whose repertoires are searchable online, namely: ArkivJazz,
ArkivMusic (classical), Classical Archives, or Presto (classical).
Users of works in other genres are encouraged but not required to
search Acoustic Sounds or Smithsonian Folkways Recordings (e.g.,
international or ``world'' music, zydeco, folk, spoken word).\88\ The
Office invites public comment on whether, in addition to classical
music and jazz, there are specific niche genres of Pre-1972 Sound
Recordings that similarly should require the user to search another
online music service offering a comprehensive set of recordings in that
niche--and if so, to identify the specific sources to be searched.
---------------------------------------------------------------------------

\88\ The proposed rule thus collapses steps 8 and 9 as proposed
by A2IM & RIAA, that is, searches of retailers of physical product
and niche services. Compare A2IM & RIAA Initial at 6. The record and
the Office's observations suggest that the universe of niche
digital-only sites is small, focused on classical music, and likely
to overlap with searches of retailers of physical product.
---------------------------------------------------------------------------

The Office agrees that it is appropriate to limit safe harbor
requirements to search for physical products to internet searches,\89\
but finds it important that a good faith, reasonable search be
calculated to include ``services offering a comprehensive set of sound
recordings for sale,'' \90\ as some works may be less available on
streaming services, but are nonetheless being commercialized in
physical formats, including reissues.\91\ Although Public Knowledge and
IMSLP.ORG express concern that sales of physical copies include second-
hand sales, as opposed to commercial exploitation by the copyright
owner,\92\ physical retailers typically indicate whether the products
are new or used, and others note the robust market for newly reissued
albums.\93\ For example, a search for ``Faith and Grace'' by The Staple
Singers on Amazon.com allows users to purchase both new and used
compact discs with that sound recording.\94\
---------------------------------------------------------------------------

\89\ EFF Initial at 4 (``The Office should not require that
potential users search for commercialization of physical copies of
recordings unless records of such commercialization are searchable
on the internet or in the Office's pre-1972 schedules.'').
\90\ 17 U.S.C. 1401(c)(1)(ii) (emphasis added).
\91\ See, e.g., FMC Reply at 3 (providing example of recordings
by The Staple Singers which are readily available as a box set via
Amazon.com or Discogs.com, and easily located by a simple search
engine search, but which are unavailable on Spotify or Apple Music).
\92\ Public Knowledge Initial at 7; Public Knowledge Reply at
11; IMSLP.ORG Reply at 1.
\93\ See FMC Reply at 6. FMC contends that Public Knowledge
``overstates the difficulty of discerning whether physical media is
made available by authorization of the rightsholder--the risk of a
false positive is small when every physical retailer classifies its
products as new or used.'' Id. at 4. Indeed, although Public
Knowledge raises the issue of items being offered for resale ``new''
a/k/a in original shrink wrap packaging, its own example suggests
that ``further inspection'' can typically clarify whether an item is
being offered for first sale, or resale. Public Knowledge Reply at
12.
\94\ Faith and Grace: A Family Journey 1953-1976, Amazon (last
visited Jan. 28, 2019), https://www.amazon.com/gp/product/B015FWTAOO?pf_rd_p=c2945051-950f-485c-b4df-15aac5223b10&pf_rd_r=QFZRHA19C97VBPY81EGB; FMC Reply at 3 (noting
availability of ``Faith and Grace'' on a compact disc set, but not
on Spotify or Apple Music).
---------------------------------------------------------------------------

6. Searches for Ethnographic Pre-1972 Sound Recordings
At the reply comment stage, concerns regarding the noncommercial
use of ethnographic Pre-1972 Sound Recordings were raised by the
National Congress of American Indians (``NCAI''), the oldest and
largest national organization made up of Alaska Native and American
Indian tribal government, and Professors Trevor Reed, Jane Anderson,
and Robin Gray, who have worked on legal and cultural issues
surrounding pre-1972 ethnographic sound recordings. NCAI asserts that
``[t]he lack of complete and accurate information typically available
on copyright interests in ethnographic sound recordings, and the
cultural sensitivity of the contents of many ethnographic sound
recording collections, merits consideration of special opt-out rules
carefully tailored to the specific needs of Native American
communities.'' \95\ As NCAI explains further:
---------------------------------------------------------------------------

\95\ NCAI Reply at 1.

Often such recordings are the result of anthropological or
ethnographical gatherings of sound recordings, frequently capturing
ceremonial or otherwise culturally significant songs. Further, due
to the circumstances of how these recordings were conducted--often
without any documentation of the free and prior informed consent of
the tribal practitioners/performers--tribes today are unaware of
much of the content that they potentially hold valid copyright
claims over.\96\
---------------------------------------------------------------------------

\96\ Id.

Similarly, Professors Reed, Anderson, and Gray explain that
``scholars have extensively documented the inequalities and ethical
dilemmas surrounding early ethnographic field recording,'' claiming
that ``ownership interests in pre-1972 ethnographic sound recordings
are presumed to have vested in and remained with the performers who
recorded them under the common-law rule,'' but that unrelated holding
institutions (e.g., libraries, archives, museums, and universities)
typically possess the master recordings.\97\ Those professors suggest
that regulations governing the noncommercial use exception under
section 1401(c) ``must be carefully tailored to the informational
disadvantages Native American tribes and tribal members face as they
attempt to locate and protect their rights to

[[Page 1668]]

ethnographic sound recordings.'' \98\ Specifically, they maintain that
for pre-1972 Native American ethnographic recordings, ``a user should
not qualify for the [section 1401(c)] safe harbor unless the relevant
Native American tribe or tribes has certified the identity of the sound
recording, its owner(s), and its current commercial uses.'' \99\
---------------------------------------------------------------------------

\97\ Reed, Anderson & Gray Reply at 2.
\98\ Id. at 3.
\99\ Id. at 4.
---------------------------------------------------------------------------

The Copyright Office is sensitive to the need to ensure that
regulations governing the noncommercial use of Pre-1972 Sound
Recordings do not adversely impact Alaska Native and American Indian
tribes or communities. The Office has previously noted that
ethnographic field recordings ``are an enormous source of cultural and
historical information, and come with their own unique copyright
issues,'' \100\ and that ``librarians and archivists who deal with
ethnographic materials must abide by the cultural and religious norms
of those whose voices and stories are on the recordings.'' \101\ The
Office appreciates that the public ownership record for these
recordings may be less developed and/or indexed into major search
engines, and that as a result, searches that are otherwise reasonable
for a prospective user may fail to identify that a specific
ethnographic recording is being commercially exploited by the rights
owner. But the Office must also be careful not to exceed its regulatory
authority, by, for example, imposing a requirement that the user obtain
certification of the identity of the sound recording and its owner
before making use of the safe harbor.\102\
---------------------------------------------------------------------------

\100\ U.S. Copyright Office, Federal Copyright Protection For
Pre-1972 Sound Recordings 52 (2011), https://www.copyright.gov/docs/sound/pre-72-report.pdf (``Pre-1972 Sound Recordings Report'').
\101\ Id. at 61 (citing Rob Bamberger and Sam Brylawski, Nat'l
Recording Preservation Board of the Library of Congress, The State
of Recorded Sound Preservation in the United States: A National
Legacy at Risk in the Digital Age 19 (2010)).
\102\ Compare Reed, Anderson & Gray Reply at 4.
---------------------------------------------------------------------------

Accordingly, for ethnographic Pre-1972 Sound Recordings of Alaska
Native or American Indian tribes or communities, if the user does not
locate the relevant sound recording in the Copyright Office's database
of Pre-1972 Schedules or other search categories, the proposed rule
asks the user to contact the Alaska Native or Native American tribe
and, if known to the user, the relevant holding institution to aid in
determining whether the sound recording is being commercially
exploited.\103\ Specifically, the rule proposes that the user make
contact by using contact information known to the user if applicable,
and also by using the contact information provided in NCAI's tribal
directory.\104\ If no information is listed or the tribe is unknown to
the user, the user should contact NCAI itself. The Office believes that
this search step is a reasonable burden to ask prospective users of
such expressions of cultural heritage in light of the complicated
history of some of these sound recordings. The Office also expects that
the notification requirement will prove useful to rights owners who
wish to exercise discretion to opt out of the noncommercial use by
filing notice in the Copyright Office.\105\
---------------------------------------------------------------------------

\103\ See id. at 2 (suggesting that the marketplace lacks
``inaccurate and unreliable information about these sound
recordings,'' necessitating tribal consultation). For example, the
professors' comment suggests that making contact may be valuable to
provide title, artist, or other information relevant to a particular
recording.
\104\ See Tribal Directory, Nat'l Cong. of Am. Indians (last
visited Jan. 28, 2019), http://www.ncai.org/tribal-directory
(providing searchable directory by tribe name, area, and keyword).
\105\ See 17 U.S.C. 1401(c)(1)(C).
---------------------------------------------------------------------------

The Copyright Office appreciates that these issues are nuanced and
is committed to addressing them in a sensitive and thoughtful manner.
The Office acknowledges that these comments were received in the reply
comment stage, without opportunity for further comment. Because the
Office must timely promulgate a rule for the safe harbor to be
available to prospective users of all types of Pre-1972 Sound
Recordings,\106\ interested parties are encouraged to submit written
comments or contact the Office for a meeting to discuss this
provisional aspect of the proposed rule.
---------------------------------------------------------------------------

\106\ Id. at 1401(c)(3).
---------------------------------------------------------------------------

ii. Sources Not Required To Be Searched
The proposed rule is intended to be accurate and comprehensive,
while minimizing redundancy. In proposing a list of ``specific,
reasonable'' steps, the Office declines to add some additional search
steps or services proposed by some commenters. Among suggestions
received, the rule does not propose to include:

Additional comprehensive streaming services beyond the one the
user elects to search from the proposed rule's list of services
Terrestrial or internet radio services, including non-
interactive services subject to the section 114 license \107\
---------------------------------------------------------------------------

\107\ As noted above, this conclusion is based, in part, on the
proposal to include the SoundExchange ISRC lookup tool in the
proposed rule.
---------------------------------------------------------------------------

The to-be-created Mechanical Licensing Collective database
\108\
---------------------------------------------------------------------------

\108\ Although the Office is open to revisiting the relevance of
the MLC database once it is up and running, it is disinclined to ask
rights owners to provide ``the hashes, with APIs, of all pre-72
sound recordings indexed'' into the database. Music Library
Association Initial at 1; see also A2IM & RIAA Initial at 5
(suggesting database should be searched sans hashes). Other
commenters have explained in more detail the difficulty with this
request, and overall the Office agrees that the Music Library
Association's proposal is opaque and beyond the scope of this
rulemaking. See A2IM & RIAA Reply at 4; Copyright Alliance Reply at
2; FMC Reply at 2.
---------------------------------------------------------------------------

Dogstar Radio, which offers searchable playlists from Sirius
XM
Online databases of U.S. performing rights organizations
Other comprehensive databases offered by private actors (e.g.,
Songfile, Rumblefish, Songdex, Cuetrak, Crunch Digital)
IMDB.com
Video streaming services
The SXWorks NOI Tools
Music distribution services (e.g., CDBaby, Tunecore)
Predominantly foreign music services \109\
---------------------------------------------------------------------------

\109\ See Find Music Services, Pro Music, https://pro-music.org/legal-music-services.php (last visited Jan. 28, 2019); see also A2IM
& RIAA Initial at 6; IFPI Initial at 1-2; Public Knowledge Reply at
2 (all discussing same).
---------------------------------------------------------------------------

SoundCloud or Bandcamp
Niche streaming services (e.g., Idagio, Primephonic)

Notably, the proposed rule does not ask the user to search services
based on the commercial exploitation of user-generated content, such as
YouTube. Commenters IMSLP.ORG and Public Knowledge maintain that a
search should not include services permitting user-uploaded content
because such services include unauthorized uses of Pre-1972 Sound
Recordings, which do not constitute commercial exploitation ``by or
under the authority of the rights owner'' as required by section
1401(c)(1)(A).\110\ By contrast, Recording Academy contends that
Congress contemplated searching on services with user-uploaded
streaming platforms.\111\ The Office agrees that a good faith,
reasonable search should be targeted at locating authorized instances
of commercial exploitation, and the

[[Page 1669]]

presumptive difficulty for online service providers to predetermine
whether content is authorized by a rights owner is inherent to the
section 512 safe harbor, which limits liability for such services
displaying user-uploaded infringing content.\112\ Because a user
conducting a section 1401(c) search on a service permitting user-
uploaded content may have no way of knowing if the use of a Pre-1972
Sound Recording is ``by or under the authority of the rights owner,''
\113\ the proposed rule does not require the user to search on a
service permitting user-uploaded content.
---------------------------------------------------------------------------

\110\ IMSLP.ORG Reply at 2 (``services permitting user-uploaded
content without any mandatory service-side verification of copyright
ownership'' such as YouTube ``should be categorically excluded''
from noncommercial use searches under section 1401(c)); Public
Knowledge Reply at 11 (maintaining that because websites like
YouTube display a combination of licensed and unlicensed media, a
sound recording's ``availability on that platform may not be
reliable evidence of the recording being commercially exploited `by
or under the authority of the rights owner' as required by Sec.
1401(c)(1)(A)'').
\111\ Recording Academy Reply at 4 & n.5 (citing Conf. Rep. at
25) (``it is important that a user seeking to rely on subsection (c)
make a robust search, including user-generated services and other
services available in the market at the time of the search'').
\112\ See 17 U.S.C. 512. To pick but one example, a YouTube
search of ragtime and early jazz pianist ``Jelly Roll Morton''
yielded a long scroll of hits featuring his sound recordings, and
spot checks did not indicate whether any were authorized, without
further refining the search criteria to incorporate record labels or
album titles readily identifiable from searching the SoundExchange
ISRC lookup tool or Amazon.com. YouTube, https://www.youtube.com/results?search_query=%E2%80%9CJelly+Roll+Morton%E2%80%9D+ (last
visited Jan. 29, 2019).
\113\ Id. at 1401(c)(1)(A).
---------------------------------------------------------------------------

As discussed above, the proposed rule aims to strike a balance
between the reasonableness and comprehensivity of the search for this
particular subset of works, and can be updated as market conditions
warrant. The Office believes that the proposed steps, including the
requirement to search major search engines, which may index some of the
information contained in the above services, will result in identifying
a vast amount of the Pre-1972 Sound Recordings being commercially
exploited at the time searches are conducted. If a rights owner is
concerned about recordings being overlooked, the Office encourages the
filing of a Pre-1972 Schedule and/or monitoring the filing of NNUs for
the opportunity to opt out of a particular requested noncommercial use.
Likewise, in commenting on the proposed rule, it would be helpful
for user-oriented groups to acknowledge that a list of specific steps
should be reasonably calculated to identify recordings being
commercially exploited, even where this entails added searching steps
of the prospective user.\114\ The Office does not believe the proposed
rule to be unwieldly from the user perspective. Moreover, while the
statute is very clear that following this closed-list of steps is
sufficient to qualify for the safe harbor,\115\ the proposed rule does
not intend to discourage users from taking additional steps that they
believe may be fruitful in identifying commercial exploitation of a
given Pre-1972 Sound Recording, or in locating the rights owner to
negotiate a permissive use, including by searching these additional
sources identified by commenters.
---------------------------------------------------------------------------

\114\ See id. at 1401(c)(1), (3).
\115\ Id. at 1401(c)(4)(B).
---------------------------------------------------------------------------

iii. Search Terms and Strategy
1. General Rule
In general, the proposed rule asks a user to search on the title
and featured artist(s) of the Pre-1972 Sound Recording in the various
search categories. If the user knows any of the following attributes of
the Pre-1972 Sound Recording, and the source has the capability for the
user to search any of the following attributes, the user must also
search: Alternate artist name(s), alternate title(s), album title, and
the International Standard Recording Code (``ISRC''). The user may also
optionally search any other attributes known to the user of the sound
recording, such as label, version, or Universal Product Code (``UPC'').
Narrowing a search by these attributes may inform a user's good faith,
reasonable determination whether or not a Pre-1972 Sound Recording is
being commercially exploited.\116\ Because ``year'' may refer to year
of a record's release or re-release, rather than year of recording, the
proposed rule does not require searching this attribute.
---------------------------------------------------------------------------

\116\ See EFF Initial at 3.
---------------------------------------------------------------------------

2. Classical Music Sound Recordings
Because classical music sound recordings require more information
to sufficiently identify the sound recording, the proposed rule
requires the user to search on additional attributes for those types of
sound recordings. For example, the same conductor could have conducted
Beethoven's Symphony No. 9 on multiple occasions, with the same or
different orchestras. Even to the trained ear (or database),\117\
distinguishing between sound recordings of those various performances
may well be impossible without knowing the musical work's composer and
opus, the conductor, the performers (e.g., orchestra), and year of
performance. Indeed, as with Beethoven's Symphony No. 9, the composer
and opus effectively function as the work's title; the closest simile
to a ``featured artist'' may be the conductor, featured performers, or
ensemble, depending upon the work.\118\ Accordingly, the proposed rule
requires the user to search on these additional attributes when trying
to determine whether a Pre-1972 Sound Recording of classical music is
being commercially exploited.
---------------------------------------------------------------------------

\117\ See, e.g., What Type of Music Can Shazam Identify, Shazam,
https://support.shazam.com/hc/en-us/articles/204462958-What-type-of-music-can-Shazam-identify- (last visited Jan. 28, 2019) (``Classical
tracks can be recorded many times over by various artists, so it can
sometimes be tricky for Shazam to tell the different versions
apart.'').
\118\ See, e.g., Anastasia Tsioulcas, Why Can't Streaming
Services Get Classical Music Right?, NPR The Record (June 4, 2015,
10:50 a.m.), https://www.npr.org/sections/therecord/2015/06/04/411963624/why-cant-streaming-services-get-classical-music-right
(describing the metadata conundrum in classical music and difficulty
searching streaming services); ArkivMusic, http://www.arkivmusic.com/classical/main.jsp (last visited Jan. 28, 2019)
(listing search categories of composers, conductors, performers,
ensembles, labels, operas, and medium of physical product).
---------------------------------------------------------------------------

The Office invites public comment on whether other, specific genres
of sound recordings (e.g., jazz) similarly can be reasonably expected
to require searching additional terms to identify the sound recording
sufficiently--and if so, what those additional attributes should be.
3. Remastered Pre-1972 Sound Recordings
As noted below, prospective users must certify that they have
conducted a good faith, reasonable search when filing NNUs. While the
Office will not examine for a NNU's legal validity, it suggests that
should the user find a ``remastered'' version of a Pre-1972 Sound
Recording through searching in any of the categories listed in the
proposed rule, such a finding likely evidences commercial exploitation
of the Pre-1972 Sound Recording. The Office has previously noted that
``remastering'' a sound recording may consist of mechanical
contributions or contributions that are too minimal to be
copyrightable.\119\ For example, it would be prudent for a user to
consider a 1948 track that was remastered and reissued in 2015 to
qualify as a Pre-1972 Sound Recording.
---------------------------------------------------------------------------

\119\ U.S. Copyright Office, Compendium of U.S. Copyright Office
Practices sec. 803.9(F)(3) (3d ed. 2017) (``Compendium (Third)'').
---------------------------------------------------------------------------

iv. Other Considerations
1. Searches for Foreign Pre-1972 Sound Recordings
Stakeholders question whether the section 1401(c) exception applies
to foreign Pre-1972 Sound Recordings (i.e., Pre-1972 Sound Recordings
originating outside the United States). EFF contends that the section
1401(c) exception does apply, ``as nothing in the extensive and
detailed language of the MMA authorizes such a carve-out.'' \120\ A2IM
and RIAA appear to agree, contending that a search under section
1401(c) should include ``leading digital

[[Page 1670]]

services in relevant foreign countries including the country of origin
or countries where the work is most popular, to the extent those
services are accessible from the U.S.'' \121\ By contrast, IFPI
maintains that the Office should clarify that the section 1401(c)
exception applies only to foreign sound recordings that have
``previously been exploited commercially in the US, thereby
establishing a nexus between the US and the rightholder(s) in
question.'' \122\
---------------------------------------------------------------------------

\120\ EFF Reply at 5.
\121\ A2IM & RIAA Initial at 6.
\122\ IFIP Initial at 2.
---------------------------------------------------------------------------

Prior to the enactment of the MMA, certain foreign Pre-1972 Sound
Recordings were already granted copyright protection in the United
States.\123\ In 1994, the Uruguay Round Agreements Act (``URAA'')
amended section 104A to automatically restore U.S. copyright protection
to certain foreign works that had been in the public domain in the
United States due to lack of copyright protection for Pre-1972 Sound
Recordings more generally.\124\ While copyright is restored
automatically in eligible works, the owner of a restored work must
notify reliance parties if they plan to enforce those rights, including
constructively by filing a notice of intent to enforce with the
Copyright Office.\125\
---------------------------------------------------------------------------

\123\ 17 U.S.C. 104A(a), (h)(6)(C).
\124\ Id. at 104A(a), (h)(6)(C)(ii) (referencing ``sound
recordings fixed before February 15, 1972'').
\125\ See U.S. Copyright Office, Circular 38B: Copyright
Restoration Under the URAA, https://www.copyright.gov/circs/circ38b.pdf.
---------------------------------------------------------------------------

The MMA revised section 301(c), which now states that
``[n]otwithstanding the provisions of section 303, and in accordance
with [section 1401], no sound recording fixed before February 15, 1972,
shall be subject to copyright under [title 17].'' \126\ But section
1401 and the legislative history do not reference foreign recordings
specifically, or refer to or revise section 104A, and there is no
evidence of congressional intent to extinguish copyright protection
granted to foreign Pre-1972 Sound Recordings under section 104A.\127\
---------------------------------------------------------------------------

\126\ 17 U.S.C. 301(c).
\127\ In comparison, to minimize concerns regarding any
``takings'' of property under the Fifth Amendment under section
104A, Congress included provisions to protect the interests of
parties who had relied on the loss of copyright protection for such
works before enactment of the URAA (i.e., ``reliance parties''). See
id. at 104A(d)(2), (h)(4).
---------------------------------------------------------------------------

Section 1401 provides sui generis protection running parallel to
any copyright protection afforded to foreign Pre-1972 Sound Recordings
under section 104A.\128\ While section 1401(c) operates as a limitation
on the protection available under that new chapter, it does not
explicitly limit title 17 copyright protection for certain foreign
restored works (i.e., copyright protection under section 104A). Whether
the noncommercial use exception under section 1401(c) can immunize
content actionable under title 17 for restored works that are foreign
Pre-1972 Sound Recordings may ultimately be a matter for the courts to
resolve. Because protection and enforcement for foreign restored rights
is fact-intensive--implicating the specific source country, date and
location of publication, duration of term in both the United States and
the source country, and compliance with formalities--prospective users
of foreign Pre-1972 Sound Recordings should proceed cautiously before
relying on the section 1401(c) exception.
---------------------------------------------------------------------------

\128\ See Conf. Rep. at 15 (discussing sui generis of chapter
14); see also IFPI Initial at 1-2 (discussing foreign Pre-1972 Sound
Recordings).
---------------------------------------------------------------------------

2. Reliance on Third-Party Searches
Stakeholders disagree as to whether a user may rely on searches
conducted by third parties to meet the good faith, reasonable search
requirement under section 1401(c). ARSC and EFF contend that users
should be able to rely on previous searches conducted for a Pre-1972
Sound Recording when filing an NNU to avoid ``duplicated effort'' \129\
and ``nothing but make-work.'' \130\ By contrast, Copyright Alliance,
A2IM, RIAA, and FMC maintain that users relying on searches of other
users could create blanket exceptions of noncommercial use.\131\
---------------------------------------------------------------------------

\129\ ARSC Reply at 4.
\130\ EFF Reply at 4.
\131\ Copyright Alliance Initial at 3 (``[A] notice of
noncommercial use for a particular pre-72 sound recording should not
create a blanket exception for all future noncommercial uses of that
sound recording.''); A2IM & RIAA Reply at 9 (``Congress never
envisioned that the index of NNUs would operate as a de facto
database of recordings available for noncommercial uses pursuant to
the new safe harbor.''); FMC Reply at 2 (``[W]e see no justification
for the suggestion that `if a search has been done within a certain
time frame, it does not have to be repeated' . . . '' (quoting Music
Library Association Initial at 2)).
---------------------------------------------------------------------------

The Office agrees that reliance on a third-party search, unless the
third party conducted the search as the user's agent, is not
reasonable. The third party may have conducted an inadequate search and
incorrectly concluded that a Pre-1972 Sound Recording is not being
commercially exploited. Or, as noted by A2IM and RIAA, a Pre-1972 Sound
Recording may become subject to commercial exploitation after a third
party has conducted a search, but before another user desires to use
the same sound recording for a noncommercial use under section
1401(c).\132\ As noted below, a user will be required to certify that
she conducted a good faith, reasonable search when submitting an NNU,
and a user cannot certify the actions of an unrelated third party.
Accordingly, the proposed rule does not permit a user to rely on a
search conducted by a third party, unless the third party conducted the
search as the user's agent.
---------------------------------------------------------------------------

\132\ A2IM & RIAA Reply at 9.
---------------------------------------------------------------------------

3. Timing of Completing a Search Before Filing an NNU
To ensure that search results are not stale, the proposed rule
states that the user (or the user's agent) must conduct a search under
section 1401(c) within 90 days before submitting an NNU with the
Office.\133\ The Music Library Association asserts that if a search has
been conducted within a certain timeframe, the search should not have
to be repeated.\134\ The Office agrees, and believes that 90 days is a
reasonable timeframe for a search to remain fresh.\135\ Accordingly, a
user may rely on a search for a Pre-1972 Sound Recording that she (or
her agent) has conducted for 90 days before submitting an NNU proposing
a noncommercial use of the same sound recording.
---------------------------------------------------------------------------

\133\ See A2IM & RIAA Initial at 21 (contending search must be
conducted within 90 days of filing an NNU to be reasonable);
Copyright Alliance Initial at 6 (same). Public Knowledge suggests
that an even earlier period of 30 days would be reasonable. Public
Knowledge Initial at App.
\134\ Music Library Association Initial at 2.
\135\ Ninety days is also the timeframe that a rights owner
filing a Pre-1972 Schedule must wait before bringing an action for
statutory damages or attorneys' fees, 17 U.S.C.
1401(f)(5)(A)(i)(II), and the timeframe a rights owner has to object
to a proposed noncommercial use, id. at 1401(c)(1)(C).
---------------------------------------------------------------------------

B. Notices of Noncommercial Use (NNUs)

i. Form and Content of NNUs
1. Overview of Proposed Rule
Commenters offer various proposals on information to be required in
NNUs, particularly regarding the level of detail required to describe
the good faith, reasonable search and the proposed noncommercial use.
Regarding the search, Copyright Alliance, A2IM, and RIAA maintain that
the user should be required to describe and certify the steps taken for
a search of the Pre-1972 Sound Recording in the NNU,\136\ whereas the
Music Library Association contends that a user should just have to

[[Page 1671]]

state that she conducted a good faith search and found no commercial
exploitation.\137\ In addition, stakeholders disagree on whether the
user should be required to document her search, such as by submitting
screen shots from searched websites.\138\ Copyright Alliance, A2IM, and
RIAA also suggest that users should be required to certify their
filings under penalty of perjury.\139\
---------------------------------------------------------------------------

\136\ A2IM & RIAA Initial at 21 (contending that user should
provide ``a certified step-by-step account of all sources searched
and the precise search terms used''); Copyright Alliance Initial at
6.
\137\ Music Library Association Initial at 1.
\138\ Compare Copyright Alliance Initial at 6 (user should be
required to document the search); IMSLP.ORG Reply at 1 (same); A2IM
& RIAA Initial at 21 (same); with Public Knowledge Reply at 14
(section 1401(c) does not require documentation of the search for
the safe harbor to apply); EFF Reply at 4 (same); Wikimedia
Foundation Reply at 3 (any documentation only becomes relevant if
the adequacy of the search comes into dispute); see also FMC Reply
at 5 (requiring a user to upload screenshots is an ``inelegant
solution'').
\139\ A2IM & RIAA Initial at 21; Copyright Alliance Initial at
6.
---------------------------------------------------------------------------

Regarding the proposed use of a Pre-1972 Sound Recording, Copyright
Alliance, A2IM, and RIAA state that the user must sufficiently identify
the Pre-1972 Sound Recording she wishes to use and the nature of the
proposed use.\140\ A2IM and RIAA note that without this information,
``it is impossible for rights owners to exercise their opt-out right in
any meaningful way.'' \141\ By contrast, EFF and Public Knowledge
assert that the user should not have to provide a detailed description
of the proposed use.\142\ EFF and Public Knowledge also suggest that
the Office should allow users to combine multiple notices of
noncommercial use into a single filing, as well as opt-out notices
directed to the same potential user.\143\
---------------------------------------------------------------------------

\140\ A2IM & RIAA Initial at 17-19; Copyright Alliance Initial
at 6. Copyright Alliance, A2IM, and RIAA also suggest that the user
should identify whether there is another work embodied within the
Pre-1972 Sound Recording, and if so, whether the user has a license
to use that work. See A2IM & RIAA Initial at 20 & n.26; Copyright
Alliance Initial at 6 & n.8. Because the noncommercial use exception
does not extend to the underlying musical, literary, or dramatic
work, which may require separate clearance, users are of course not
required to identify underlying works embodied within the Pre-1972
Sound Recording, but may include such information, including whether
they have secured permission to use such works, to aid the rights
owner in considering how to respond to a NNU. See A2IM & RIAA
Initial at 20 & n.26.
\141\ Id. at 17.
\142\ EFF Initial at 5-6 (``[R]equiring detailed descriptions of
a use would invite future legal disputes over whether a use has
exceeded the language of its description.''); Public Knowledge Reply
at 15 (user should be required to provide only the ``basic facts
which a non-sophisticated user can reasonably be expected to have on
hand''; rightsholders may ask for clarification of proposed uses
where descriptions are vague or otherwise insufficient).
\143\ EFF Reply at 4; Public Knowledge Reply at 16.
---------------------------------------------------------------------------

After duly considering all of the public comments, the rule
proposes to include a mix of required and optional information to
establish a baseline of information that will be deemed sufficient for
purposes of meeting the regulatory filing requirements, while
encouraging users to provide additional descriptive material that may
aid in the ensuing determination whether a Pre-1972 Opt-Out Notice is
filed. Specifically, the proposed rule requires the user to provide:
1. The user's full legal name, and whether the user is an
individual person or corporate entity, including whether the entity is
a tax-exempt organization as defined under the Internal Revenue Code;
2. The title and featured artist(s) of the Pre-1972 Sound Recording
desiring to be used; \144\
---------------------------------------------------------------------------

\144\ As noted above, classical music metadata raises unique
issues. For such proposed uses, the prospective user should include
information that is similar to the attributes the user is asked to
search upon for title and featured artist(s) before claiming the
statutory safe harbor.
---------------------------------------------------------------------------

3. If known, the alternate artist name(s), alternate title(s),
album title, and ISRC; and
4. A description of the proposed noncommercial use, including a
summary of the project and its purpose, how the Pre-1972 Sound
Recording will be used in the project, and when and where the proposed
use will occur (i.e., the term and U.S.-based territory of the use).
The prospective user should describe the proposed use clearly and
accurately, with enough detail to provide the rights owner with enough
information to meaningfully evaluate the use.\145\ The proposed
categories comprise commonsense information, and the prospective user
has flexibility in the description of the proposed use.\146\ To aid
filers, the Office's form or instructions may include exemplar
descriptions of the proposed use. As discussed further below, while the
proposed rule does not define ``noncommercial'' for purposes of this
filing, the Office's form, instructions, and other material will be
intended to aid individuals in determining how a desired use is likely
to relate to the exception for noncommercial uses.
---------------------------------------------------------------------------

\145\ See, e.g., A2IM & RIAA Initial at 18-19; EFF Initial at 5
(both in general accord).
\146\ For example, a user may describe an ``unlimited'' term of
use, throughout the United States, or a more limited use, such as a
particular high school's spring dance recital. A user may also
specify whether a webinar will be live-streamed over the internet
and/or archived.
---------------------------------------------------------------------------

Further recognizing that some NNUs are likely to be filed by
individuals or smaller noncommercial entities with limited expertise
with copyright licensing, the Office's form will also provide cues for
users to provide additional optional information that is commonly
helpful in licensing transactions, such as spaces for title of the
project, the playing time of the Pre-1972 Sound Recording to be used as
well as total playing time, description of corresponding visuals in the
case of audiovisual uses, and whether and how the user will credit the
sound recording title, featured artist, and/or rights owner in
connection with the project.\147\ The user may also opt to include
additional information about the Pre-1972 Sound Recording as permitted
by the Office's form or instructions, such as the year of release and
version. Similarly, to increase the likelihood of a user receiving
timely notification of a rights owner's decision to opt out of a
proposed noncommercial use, the proposed rule allows a user to include
an email address to which a rights owner may contact the user to obtain
more information, or to send a copy of the Pre-1972 Opt-Out Notice in
addition to filing a Pre-1972 Opt-Out Notice with the Copyright Office.
---------------------------------------------------------------------------

\147\ See A2IM & RIAA Initial at 19 (proposing these fields, but
on a required basis).
---------------------------------------------------------------------------

In addition, the proposed rule states that an NNU may not include a
proposed use for more than one Pre-1972 Sound Recording unless all of
the sound recordings include the same featured artist and were released
on the same pre-1972 album or unit of publication.\148\ The Office
recognizes that, for efficiency, users desiring to make noncommercial
use of multiple Pre-1972 Sound Recordings from the same album would
prefer to file a single NNU in all cases.\149\ The Office also
recognizes, however, that multiple rights owners may own the various
Pre-1972 Sound Recordings in the NNU--and that consequently, multiple
rights owners may desire to file Pre-1972 Opt-Out Notices in response
to the same NNU. In such circumstances, it may be difficult for rights
owners as well as prospective users to evaluate opt-outs to proposed
noncommercial uses.
---------------------------------------------------------------------------

\148\ A ``unit of publication'' exists where multiple works are
physically bundled or packaged together and first published as an
integrated unit. U.S. Copyright Office, Circular 34: Multiple Works,
https://www.copyright.gov/circs/.
\149\ Indeed, the Office permits applicants to register a claim
to copyright for sound recordings on the same album in certain
circumstances. See, e.g., 37 CFR 202.3(b)(4)(i)(A) (allowing
applicants to register multiple sound recordings as well as
accompanying text and artwork as a ``unit of publication,'' if they
are owned by the same claimant, were physically packaged or bundled
together, and if all of the recordings were first published together
as that integrated unit).
---------------------------------------------------------------------------

Finally, the proposed rule also requires the individual submitting
the NNU to certify that she has appropriate

[[Page 1672]]

authority to submit the NNU, that the user desiring to make
noncommercial use of the Pre-1972 Sound Recording (or the user's agent)
conducted a good faith, reasonable search within the last 90 days
without finding commercial exploitation of the sound recording, and
that all information submitted to the Office in the NNU is true,
accurate, and complete to the best of the individual's knowledge,
information, and belief, and is made in good faith. Such requirements
mimic certification requirements in a wide variety of other filings
administered by the Copyright Office.\150\ The proposed rule does not
require users to submit documentation of their searches, but the Office
encourages users to keep records of their searches in case they come
into dispute.
---------------------------------------------------------------------------

\150\ See id. at Sec. 201.4(c)(4) (recorded documents
generally), Sec. 201.10(f)(1)(i) (notices of termination of
transfer and licenses), Sec. 201.11(e)(9)(iii)(E) (satellite and
cable statements of account), Sec. 201.35(d)(2) (submission of Pre-
1972 Schedules), Sec. 201.36(d)(4) (submission of notices of
contact information for transmitting entities publicly performing
Pre-1972 Sound Recordings); see also 18 U.S.C. 1001 (false
statements generally).
---------------------------------------------------------------------------

2. Determining Whether a Use Is Noncommercial
The section 1401(c) exception applies only to noncommercial uses of
Pre-1972 Sound Recordings.\151\ Although section 1401(c) does not
define ``noncommercial,'' it does state that ``merely recovering costs
of production and distribution of a sound recording resulting from a
use otherwise permitted under [section 1401(c)] does not itself
necessarily constitute a commercial use,'' \152\ and ``the fact that a
person engaging in the use of a sound recording also engages in
commercial activities does not itself necessarily render the use
commercial.'' \153\ The Conference Report further states that ``the
concept of noncommercial use should be understood in the same way as
under other provisions of title 17, such as section 107, and includes
uses such as teaching, scholarship and research.'' \154\ Although other
parts of title 17 refer to ``commercial'' or ``non-commercial'' uses,
nowhere in the statute are they defined.\155\
---------------------------------------------------------------------------

\151\ 17 U.S.C. 1401(c)(1); Conf. Rep. at 25 (``Subsection (c)
applies only to noncommercial uses.'').
\152\ 17 U.S.C. 1401(c)(2)(A).
\153\ Id. at 1401(c)(2)(B).
\154\ Conf. Rep. at 25.
\155\ See, e.g., 17 U.S.C. 107; 108(a)(1), (c), (h)(2)(A);
109(a), (b)(1)(A); 110(4), (8); 506(a); see also Kernochan Center
Reply at 2-3 (discussing various statutory provisions); 37 CFR
201.40(b)(1)(i)(B) (2018) (regulatory exception for certain uses of
motion pictures in noncommercial videos); compare 17 U.S.C.
901(a)(5) (defining ``commercially exploit'' with respect to mask
works).
---------------------------------------------------------------------------

The NOI questioned whether the Office should adopt guidelines for
filers ``as to what constitutes a `noncommercial' use, and if so,
what?'' \156\ FMC strongly urged the Office to provide such guidance to
``prevent situations where less sophisticated users misunderstand the
statute.'' \157\ Similarly, A2IM and RIAA suggest ``it is vitally
important for both users and rights owners that the Office issue
guidelines to help users recognize appropriate uses of section 1401(c)
and help rights owners assess the NNUs that get filed,'' particularly
for users less experienced with copyright.\158\ Citing an array of case
law and endorsing a public survey on this topic from Creative Commons,
they propose specific text for the Office's consideration.\159\
---------------------------------------------------------------------------

\156\ NOI at 52178.
\157\ FMC Reply at 6 (noting prevalence of incorrect
understanding of copyright published by users in connection with
user-uploaded content on YouTube).
\158\ A2IM & RIAA Reply at 6.
\159\ A2IM & RIAA Initial at 10-15 (citing Creative Commons,
Defining ``Noncommercial'': A Study of How the Online Population
Understands ``Noncommercial Use'' 18 (Sept. 2009), https://mirrors.creativecommons.org/defining-noncommercial/Defining_Noncommercial_fullreport.pdf).
---------------------------------------------------------------------------

On the other hand, Wikimedia Foundation cautioned the Office to
avoid creating ``complex presumptions'' for specific anticipated fact
patterns, suggesting that terms like ``noncommercial'' are defined in
fact-specific contexts that are still being explored by courts.\160\
The Kernochan Center provided a run-down of key court opinions with
``differing conclusions as to what constitutes commercial versus
noncommercial use.'' \161\ It suggested that the A2IM and RIAA proposal
was insufficiently clarifying, while also acknowledging that failure to
interpret the term might perpetuate conflicting interpretations by
courts and advocacy groups.\162\
---------------------------------------------------------------------------

\160\ Wikimedia Foundation Reply at 3.
\161\ Kernochan Center Reply at 3-4.
\162\ Id. at 4.
---------------------------------------------------------------------------

The Office agrees with the Kernochan Center that defining
noncommercial in relation to section 1401 is ``a complex proposition.''
\163\ In a sense, section 1401(c) requires the Office to mediate a
channel for users and rights owners to engage with each other regarding
potentially noncommercial uses through competing filings, and it is not
the Office's intention to constrain resolution of gray areas or edge
cases through private negotiation or, if necessary, the courts. If
anything, the Office hopes this new mechanism may engender dialogues to
further productive developments in this area.
---------------------------------------------------------------------------

\163\ Id.
---------------------------------------------------------------------------

But in examining the relevant statutory and case law, as well as
the comments, it is apparent that there are some touchstones in
evaluating whether a use is noncommercial that may be helpful to flag
for filers and other interested parties. While individual
determinations may be fact-specific, inclusion of this new exception
suggests a congressional intent to provide a new avenue to facilitate
certain noncommercial uses.\164\ Moreover, many comments pointed out
that individuals and smaller nonprofit entities may benefit from
additional explanation regarding the content and filing of NNUs.\165\
The Office plans to include information directed at helping users
determine whether and how to file a NNU, including considerations that
may affect their own determination that a use is noncommercial. Such
material may be included on the Office's instructions, forms, or other
public resources, which will also make clear that the Office does not
provide legal advice regarding specific uses. Because this information
is directly tailored to the Office's promulgation of regulations
establishing the content for the filing of NNUs, and is aimed at aiding
prospective filers--both users and rights owners--in evaluating whether
a use may fall under this noncommercial use exemption, the Office
agrees that this guidance should not necessarily be presumed to
directly bear upon questions related to other parts of the
statute.\166\
---------------------------------------------------------------------------

\164\ See also 17 U.S.C. 1401(c)(6)(A) (prescribing penalties
for filing an NNU while ``knowing that the use proposed is not
permitted'') (emphasis added).
\165\ See, e.g., EFF Initial at 1; AAU Initial at 1; FMC Reply
at 6; Public Knowledge Reply at 9; A2IM & RIAA Reply at 6.
\166\ See SoundExchange Initial at 15-16 (re specialized
licenses for noncommercial users under sections 112 or 114);
Kernochan Center Reply at 5.
---------------------------------------------------------------------------

While this notice is not including specific language, the Office
provisionally anticipates calling attention to the following types of
considerations.
1. Use v. User. The evaluation should consider the type of use of
the copyrighted material and not simply the nature of the user.\167\
While a filer will be asked to disclose whether the user is a tax-
exempt organization or other corporate entity, this information is
helpful but not dispositive, as some uses

[[Page 1673]]

by nonprofit organizations may constitute ``commercial'' use.\168\
Similarly, some uses by for-profit entities may constitute
``noncommercial'' use \169\ and ``the fact that a person engaging in
the use of a sound recording also engages in commercial activities does
not itself necessarily render the use commercial.'' \170\
---------------------------------------------------------------------------

\167\ See, e.g., Cambridge Univ. Press v. Patton, 769 F.3d 1232,
1264 (11th Cir. 2014) (``[W]e must consider not only the nature of
the user, but the use itself.''); Am. Geophysical Union v. Texaco
Inc., 60 F.3d 913, 921-22 (2d Cir.1994) (``[A] court's focus should
be on the use of the copyrighted material and not simply on the user
. . . '').
\168\ See, e.g., Greenberg v. Nat'l Geographic Soc'y, 244 F.3d
1267, 1275 (11th Cir. 2001), rev'd on other grounds on reh'g en
banc, 533 F.3d 1244 (11th Cir. 2008). (``[W]hile the [CD-ROM
library] is a product that may serve educational purposes, it is
marketed to the public at book stores, specialty stores, and over
the internet. [Defendant] is a non-profit organization, but its
subsidiary National Geographic Enterprises, which markets and
distributes the [product], is not; the sale of the [product] is
clearly for profit.'').
\169\ See, e.g., Am. Geophysical Union, 60 F.3d at 921-22; Byrne
v. British Broad. Corp., 132 F. Supp. 2d 229, 234 (S.D.N.Y. 2001).
\170\ 17 U.S.C. 1401(c)(2)(B).
---------------------------------------------------------------------------

2. Educational uses. Educational uses ``such as teaching,
scholarship and research'' are often noncommercial uses that provide a
public benefit.\171\ But some educational uses may be considered
commercial, for example, when fees are charged or copies sold, or when
the user gains another kind of measurable benefit (such as valuable
authorship credit through plagiarism of the work), and so the
educational nature of the use should be viewed as one important part of
the overall evaluation whether the use is noncommercial.\172\
---------------------------------------------------------------------------

\171\ Conf. Rep. at 25.
\172\ See, e.g., Peter Letterese & Assocs. v. World Inst. of
Scientology Enters. Int'l, 533 F.3d 1287, 1309-12 (11th Cir. 2008)
(finding use of copyrighted material in an instructional coursepack,
where defendants charged a fee, was ``commercial''); Princeton Univ.
Press v. Mich. Document Servs., 99 F.3d 1381, 1385-86 (6th Cir.
1996) (finding reproduction of academic works was ``commercial'' use
because copies were sold in coursepacks); Weissman v. Freeman, 868
F.2d 1313, 1324 (2d Cir. 1989) (academic researcher's plagiarism was
commercial because ``what is valuable is recognition because it so
often influences professional advancement''); see also Cambridge
Univ. Press, 769 F.3d at 1263-66.
---------------------------------------------------------------------------

3. Covering the costs of production and distribution of the sound
recording. ``Merely recovering costs of production and distribution of
a sound recording resulting from a use'' that would otherwise be
considered noncommercial ``does not itself necessarily constitute a
commercial use.'' \173\ Similarly, the fact that the user may save
money on a licensing fee does not automatically make the use
commercial.\174\
---------------------------------------------------------------------------

\173\ 17 U.S.C. 1401(c)(2)(A).
\174\ See, e.g., Cambridge Univ. Press, 769 F.3d at 1265-66
(``Of course, any unlicensed use of copyrighted material profits the
user in the sense that the user does not pay a potential licensing
fee, allowing the user to keep his or her money. If this analysis
were persuasive, no use could qualify as `nonprofit' . . . .'').
---------------------------------------------------------------------------

4. Financial gain or other profit. Beyond covering the costs of
production and distribution, if the user otherwise ``stands to profit
from exploitation of the copyrighted material without paying the
customary price,'' it is more likely to be considered a commercial
use.\175\ For example, some courts have stated that if the use can be
expected to bring the user ``conspicuous financial rewards,'' it is
more likely to be commercial.\176\ Some examples may include uses of a
copyrighted work in an advertisement, through the sale of a newspaper
or magazine (even by a non-profit organization), or other uses that
directly earn users money.\177\
---------------------------------------------------------------------------

\175\ Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S.
539, 562 (1985); see also Wall Data Inc. v. Los Angeles Cty.
Sheriff's Dep't, 447 F.3d 769, 779 (9th Cir. 2006) (police
department copying software to avoid buying additional licenses was
a commercial use).
\176\ Cambridge Univ. Press, 769 F.3d at 1266; see Am.
Geophysical Union, 60 F.3d at 922.
\177\ See, e.g., Davis v. The Gap, Inc., 246 F.3d 152, 175 (2d
Cir. 2001) (``Here the work, being an advertisement, is at the outer
limit of commercialism.'') (citing Campbell, 510 U.S. at 585);
Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1152
(9th Cir. 1986) (use in fundraisers for religious organization is
commercial); Sony Comput. Entm't Am., Inc. v. Bleem, LLC, 214 F.3d
1022, 1027 (9th Cir. 2000) (finding use of screen shots of
plaintiff's video games in comparative advertising was commercial);
Consumers Union of U.S., Inc. v. Gen. Signal Corp., 724 F.2d 1044,
1049 (2d Cir. 1983) (``Almost all newspapers, books and magazines
are published by commercial enterprises that seek a profit.''); see
also Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828, 846 (C.D. Cal.
2006), aff'd in part, rev'd in part sub nom on other grounds, 508
F.3d 1146 (9th Cir. 2006).
---------------------------------------------------------------------------

5. Private personal uses. If the use is a private home use for an
individual's personal enjoyment, it will generally be considered
noncommercial.\178\ Posting on the open, accessible internet is not a
private use, even if the user does not encourage others to access the
Pre-1972 Sound Recording.
---------------------------------------------------------------------------

\178\ See Sony Corp. of Am. v. Universal City Studios, Inc., 464
U.S. 417, 448-49 (1984) (``time-shifting for private home use must
be characterized as a noncommercial, nonprofit activity'');
Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180
F.3d 1072, 1079 (9th Cir. 1999) (addressing transfer of
legitimately-acquired MP3 files from user's hard drive to portable
media player); see also A2IM & RIAA Initial at 13 (acknowledging
that ``use of lawfully-acquired works for an individual's personal
enjoyment clearly seems to be noncommercial'').
---------------------------------------------------------------------------

6. Other individual uses. Putting a Pre-1972 Sound Recording on
YouTube or another platform that allows users to upload content may or
may not be commercial; again, the user must consider the purpose of the
use, including whether the user is monetizing that use for profit.\179\
---------------------------------------------------------------------------

\179\ For example, making copies to help people ``get for free
something they would ordinarily have to buy,'' such as file sharing
to anonymous requesters over the internet, has been found to be
commercial. A&M Records. Inc. v. Napster, Inc., 239 F.3d 1004, 1015
(9th Cir. 2001); see also FMC Reply at 6 (expressing ``acute
concern'' about uploads to ``YouTube or similar commercial
services'').
---------------------------------------------------------------------------

Finally, the Copyright Office also addresses a question raised
regarding the scope of its regulatory authority. EFF and Public
Knowledge contend the Office lacks authority to issue guidance
regarding the meaning of ``noncommercial use'' as part of this
rulemaking.\180\ Perhaps more broadly, EFF suggests that the Copyright
Office requires ``a statutory grant'' ``to give opinions'' regarding
copyright issues or the meaning of specific terms in the copyright
law.\181\ In point of fact here, three relevant statutory charges
reside at 17 U.S.C. 701(b), 702, and 1401(c)(3).\182\ It is well-
established, permissible, and often necessary for the Office to
construe or otherwise interpret the meaning of statutory terms as part
of dutifully exercising its regulatory functions.\183\ Indeed, this is
a basic precept of administrative law.\184\ As

[[Page 1674]]

Congress has so directed, the Office will continue to interpret
statutory terms as necessary to administer a wide variety of filings
mandated under title 17, including NNUs, and also through documents
such as circulars, its Compendium of U.S. Copyright Office Practices,
or other public aids.\185\ While it is true that courts afford varying
levels of deference to these differing types of documents (as with any
agency), that fact does not bear upon the Office's authority to issue
these documents in fulfillment of its statutory functions and duties.
---------------------------------------------------------------------------

\180\ Public Knowledge Initial at 8 (suggesting statute provides
``no role'' for the Office); EFF Initial at 5; see also Wikimedia
Foundation Reply at 3.
\181\ EFF Initial at 5 (citation omitted).
\182\ 17 U.S.C. 701(b) (outlining additional functions and
duties), 702 (Copyright Office regulations), and 1401(c)(3)
(directing promulgation of noncommercial use rulemaking). See also
S. Rep. No. 115-339 at 15 (discussing Copyright Office knowledge and
expertise regarding music copyright regulations, educational
activities, and reports with respect to title I of the MMA); Conf.
Rep. at 12 (same). The Office also provides authoritative
information about the copyright law and public education regarding
copyright and the administration of its functions and duties under
title 17. See 17 U.S.C. 701(b); 37 CFR 203.3(f); id. at Sec.
201.2(b)(7).
\183\ See, e.g., 37 CFR 201.4(c)(2) (defining a document
``pertaining to a copyright''), Sec. 201.10(d)(2) (identifying
actions that will meet statutory service requirements), Sec.
201.10(f)(1)(ii)(C) (treating date of creation of a ``gap work'' as
date of execution of a grant), Sec. 201.11 (including interest in
Section 119 royalty fee payments), Sec. 201.13(a)(2) (defining
``copyright owner'' for purposes of Section 110(4)), Sec. 201.17(b)
(defining ``gross receipts'' and ``cable system'' for purposes of
Section 111), Sec. 201.18(a)(5) (defining ``copyright owner'' for
purposes of Section 115 notices of intention), Sec. 201.22(a)(2)
(defining ``copyright owner'' for purposes of Section 411(c)),
201.26(b) (defining terms relating to shareware for purpose of
Section 805 of Public Law 101-650), Sec. 202.1 (providing examples
of works not subject to copyright), Sec. 202.10 (requirements for
protection of pictorial, graphic, and sculptural works), Sec.
201.11(b)(2) (defining ``building'' for purposes of architectural
works protection); see also Mazer v. Stein, 347 U.S. 201, 211-13
(1954) (relying on Copyright Office regulations ``interpreting'' the
1909 Act with respect to copyrightable subject matter).
\184\ See, e.g., Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984); Skidmore v. Swift & Co.,
323 U.S. 134 (1944). Relatedly, EFF's citation of Capitol Records,
LLC v. Vimeo, LLC seems misplaced in comments responsive to a
statutorily-required rulemaking regarding a new federal exception to
the ability of rights owners to control uses of Pre-1972 Sound
Recordings. See EFF Initial at 5 (citing 826 F.3d 78, 93 (2d Cir.
2016)). First, as the sentence that EFF partially quotes indicates,
Vimeo actually suggests that Chevron deference is appropriate with
respect to a Copyright Office rulemaking (such as this one). Vimeo,
826 F.3d at 93 (distinguishing level of deference in that case from
``Chevron deference of the sort accorded to rulemaking by authorized
agencies''). Indeed, the Second Circuit has ``appl[ied] Chevron'' in
adopting the Office's interpretation of section 111 as reasoned
through similar rulemaking documents concerning requirements for
filing statements of account with respect to the cable license, when
determining whether internet retransmission services may qualify for
this license. WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 284 (2d Cir.
2012). Second, far from discounting the Office's guidance in this
area, Congress subsequently ratified the approach recommended in the
policy report discussed in Vimeo of expressly amending title 17 to
apply the section 512 safe harbor as well as other federal
exceptions and limitations to Pre-1972 Sound Recordings. See 17
U.S.C. 1401(f)(3); (1)(B)(3); Pre-1972 Sound Recordings Report at
128-29, 130-32; see also Mitch Stoltz, The New Music Modernization
Act Has a Major Fix: Older Recordings Will Belong to the Public,
Orphan Recordings Will Be Heard Again, EFF (Sept. 19, 2018), https://www.eff.org/deeplinks/2018/09/new-music-modernization-act-has-major-fix-older-recordings-will-belong-public (noting it is
``important'' that under title II, ``the full set of public rights
and protections'' ``will apply explicitly,'' in contrast to state
laws).
\185\ See, e.g., Compendium (Third) Introduction 2 (collecting
cases relying on Compendium); ABS Entm't, Inc. v. CBS Corp., 908
F.3d 405, 417 n.5 (9th Cir. 2018) (``Circulars provide Copyright
Office guidance on various issues. We may rely on them as persuasive
but not binding authority.'').
---------------------------------------------------------------------------

ii. Filing of NNUs, Including Copyright Office Review
Stakeholders disagree on the Office's level of review of NNUs.
Copyright Alliance, A2IM, and RIAA contend that the Office should
reject NNUs that do not provide sufficient information or are
``patently deficient.'' \186\ In addition, Copyright Alliance and FMC
ask for guidance on how the Office plans to police bad faith or
deficient notices.\187\ By contrast, EFF maintains that the Office
cannot reject facially complete notices of use or opt-out notices,\188\
and Public Knowledge contends that section 1401(c) ``contemplates no
such role for the Office'' to reject notices on substantive
grounds.\189\
---------------------------------------------------------------------------

\186\ A2IM & RIAA Initial at 19; Copyright Alliance Initial at
3.
\187\ Copyright Alliance Initial at 3; FMC Reply at 5.
\188\ EFF Reply at 3.
\189\ Public Knowledge Reply at 7. The Copyright Alliance
maintains that the ``Copyright Office does clearly have authority to
deny facially invalid notices,'' and the discretion to reject
notices which on their face are not sufficient to identify the sound
recording--thus not providing notice to the owner of the sound
recording--and nature of the use or do not adhere to the form,
content, and procedures established by the Register through
regulations.'' Copyright Alliance Reply at 2.
---------------------------------------------------------------------------

As with similar types of filings made with the Office, the proposed
rule states that the Office does not review NNUs for legal
sufficiency.\190\ Rather, the Office's review is limited to whether the
formal and legal procedural requirements established under the rule
(including completing the required information and payment of the
proper filing fee) have been met. The Office's indexing of an NNU thus
does not mean the proposed use in the NNU is, in fact, noncommercial.
Users are therefore cautioned to review and scrutinize NNUs to assure
their legal sufficiency before submitting them to the Office.
---------------------------------------------------------------------------

\190\ For example, the Office accepts statements of account
under the section 111 cable license after a review for ``obvious
errors or omissions appearing on the face of the documents'' (see 37
CFR 201.17(c)(2)), notices of intention under the section 115
compulsory license without review for ``legal sufficiency'' or
``errors or discrepancies'' (see id. at Sec. 201.18(g)), and agent
designations made pursuant to section 512(c)(2) without any
examination.
---------------------------------------------------------------------------

Section 1401(c)(6)(A) contemplates civil penalties for the filing
of fraudulent NNUs (e.g., fraudulently describing the use
proposed).\191\ In connection with the Office's exercise of the
regulatory authority directed under the MMA and its general authority
and responsibility to administer title 17,\192\ the proposed rule
states that if the Register becomes aware of abuse or fraudulent NNUs
from a certain filer, she shall have the discretion to reject all
submissions from that filer under section 1401(c) for up to one year.
---------------------------------------------------------------------------

\191\ 17 U.S.C. 1401(c)(6)(A) (``Any person who willfully
engages in a pattern or practice of filing a [NNU] . . .
fraudulently describing the use proposed, or knowing that the use
proposed is not permitted under [section 1401(c)], shall be assessed
a civil penalty in an amount that is not less than $250, and not
more than $1000, for each such notice, in addition to any other
remedies that may be available under this title based on the actual
use made.'').
\192\ See id. at 1401(c)(3), (5)(A); id. at 701(a).
---------------------------------------------------------------------------

iii. Indexing NNUs Into the Copyright Office's Online Database
Section 1401(c) requires NNUs to be ``indexed into the public
records of the Copyright Office.'' \193\ Under the proposed rule, an
NNU will be considered ``indexed'' once it is made publicly available
through the Office's online database of NNUs. Similar to the Office's
database of indexed Pre-1972 Schedules, the Office intends to provide
an online and searchable database of indexed NNUs. Rights owners can
search on the prospective user's name, the title of the sound
recording, the featured artist(s), and the ISRC provided in NNUs.\194\
In addition, each NNU will be assigned a unique identifier by the
Copyright Office, which will also be searchable. As noted below, rights
owners will be required to include the unique identifier assigned to an
NNU if the rights owner desires to file a Pre-1972 Opt-Out Notice in
response. Although indexed NNUs will be publicly available, the
proposed rule states that users cannot rely on NNUs filed by third
parties (other than the user's agent). Similarly, a user cannot rely on
her own NNU once the proposed term of use ends (i.e., she must conduct
a new good faith, reasonable search for the Pre-1972 Sound Recording
and file a new NNU).
---------------------------------------------------------------------------

\193\ Id. at 1401(c)(1)(C); see internet Archive Initial at 2
(advocating same).
\194\ Similar to the database of Pre-1972 Schedules discussed
above, the Office's database of NNUs will allow for wildcard
searching by using an asterisk to fill in partial words.
---------------------------------------------------------------------------

The proposed rule also confirms that persons may request timely
notification of when NNUs are indexed into the Office's public records
by following the instructions provided by the Copyright Office on its
website.\195\ Individuals requesting such notification can subscribe to
a weekly email through a service similar to the Office's NewsNet
service, which will provide a link to the Office's online database of
indexed NNUs. The Office's searchable database will default to listing
the NNUs with the most recent index dates first, so individuals should
easily be able to identify recently indexed filings.\196\
---------------------------------------------------------------------------

\195\ See A2IM & RIAA Initial at 22 (requesting same).
\196\ The Office believes having an online, searchable database
of indexed NNUs and a periodic email notification option addresses
Author Services' concern about how rights owners of Pre-1972 Sound
Recordings will receive notice of indexed NNUs. Author Services
Reply #1 at 1-2.
---------------------------------------------------------------------------

C. Opt-Out Notices

As noted above, the rights owner of a Pre-1972 Sound Recording may
file a Pre-1972 Opt-Out Notice with the Copyright Office ``opting out''
of (i.e., objecting to) the proposed use in an NNU within 90 days of
the NNU being indexed into the Office's public records.\197\ The
proposed rule states that where a Pre-1972 Sound Recording has multiple
rights owners, only one rights owner needs to file Pre-1972 Opt-Out
Notice for purposes of section

[[Page 1675]]

1401(c)(5).\198\ In addition, the proposed rule requires the Pre-1972
Opt-Out Notice to include the rights owner's name and the unique
identifier assigned to the NNU by the Copyright Office. The submitter
of the Pre-1972 Opt-Out Notice may opt in her discretion to comment on
whether the proposed use constitutes noncommercial use. In keeping with
filings of similar type, the Pre-1972 Opt-Out Notice must also include
a certification that the individual submitting the notice has
appropriate authority to do so and that all information submitted to
the Office is true, accurate, and complete to the best of the
individual's knowledge, information, and belief, and is made in good
faith. The Office intends to make Pre-1972 Opt-Out Notices publicly
available through the Office's online searchable database of NNUs.
---------------------------------------------------------------------------

\197\ 17 U.S.C. 1401(c)(1)(C).
\198\ Similarly, where a musical work has multiple copyright
owners, the Office does not require each copyright owner to record a
Declaration of Ownership in Musical Works to become eligible for
royalties under the 17 U.S.C. 115 compulsory license. U.S. Copyright
Office, Document Recordation: Completing and Submitting Declarations
of Ownership in Musical Works (last visited Jan. 28, 2019), https://www.copyright.gov/recordation/domw/#requirements.
---------------------------------------------------------------------------

If a rights owner files a timely Pre-1972 Opt-Out Notice, the
proposed rule states that the user specified in the NNU use must wait
one year before filing another NNU for the same or similar use of the
Pre-1972 Sound Recording.
As with NNUs and similar types of filings made with the Office, the
proposed rule states that the Office does not review Pre-1972 Opt-Out
Notices for legal sufficiency, interpret their content, or screen them
for errors or discrepancies. Rather, the Office's review is limited to
whether the procedural requirements established by the Office
(including payment of the proper filing fee) have been met. Rights
owners are therefore cautioned to review and scrutinize Pre-1972 Opt-
Out Notices to assure their legal sufficiency before submitting them to
the Office. As with the Office's handling of fraudulent NNUs, because
section 1401(c)(6)(B)(ii) contemplates civil penalties for a pattern of
filing of fraudulent Pre-1972 Opt-Out Notices,\199\ the proposed rule
states that if the Register becomes aware of abuse or fraudulent Pre-
1972 Opt-Out Notices from a certain filer, she shall have the
discretion to reject all submissions from that filer for up to one
year.
---------------------------------------------------------------------------

\199\ 17 U.S.C. 1401(c)(6)(B)(ii) (``Any person who engages in a
pattern or practice of [filing a Pre-1972 Opt-Out Notice, knowing
that the person is not the rights owner or authorized to act on
behalf of the rights owner of the sound recording to which the NNU
pertains,] shall be assessed a civil penalty in an amount not less
than $10,000 for each such filing.''); see also 17 U.S.C.
1401(c)(5)(A); id. at 701(a).
---------------------------------------------------------------------------

D. Filing Fees

The Copyright Act grants the Office authority to establish, adjust,
and recover fees for services provided to the public.\200\ The rule
proposes fees to file an NNU or an Opt-Out Notice that are the same as
the current fee to record a notice of intention to make and distribute
phonorecords under section 115 (``NOI'').\201\ The Office anticipates
that the processing of these documents will be analogous to that of
processing electronic NOIs, and has based the proposed fee
accordingly.\202\ Similar to the Office's free NewsNet service, there
will be no fee for individuals to request and receive timely
notifications of when NNUs are indexed into the Office's public
records.
---------------------------------------------------------------------------

\200\ See id. at 708. Because they do not involve services
specified in section 708(a), the fees proposed in this NPRM are not
subject to the adjustment of fees provision in section 708(b).
\201\ 37 CFR 201.3(e)(1) (stating cost to record section 115 NOI
for one title is $75). The Office notes that the proposed fee is
lower than to record a document for a single title. See id. at Sec.
201.3(c)(17) (stating cost to record document for single title is
$105).
\202\ Basing the cost of a service on the cost for a similar
service is appropriate. See Copyright Office Fees, 83 FR 24054,
24059 (May 24, 2018) (proposing setting new fees at the same level
for ``analogous'' services). In 2017, Booz Allen Hamilton conducted
a study of the Office's most recent fee structure. When asked
whether existing rates could be leveraged for new group registration
options, it concluded it was appropriate if the work required was of
a similar grade and compensation level. Booz Allen Hamilton, U.S.
Copyright Office, Fee Study: Question and Answers 6 (Dec. 2017),
https://www.copyright.gov/rulemaking/feestudy2018/fee_study_q&a.pdf.
---------------------------------------------------------------------------

III. Ex Parte Communications

In the past, the Office's communications with rulemaking
participants have not generally included discussions about the
substance of the proceeding apart from the noticed phases of written
comments. The Office has determined that further informal
communications with participants might be beneficial in limited
circumstances where the Office seeks specific information or follow-up
regarding the public record, such as to discuss nuances of proposed
regulatory language. The primary means to communicate views in the
course of the rulemaking will continue to be through the submission of
written comments. In other words, this communication will supplement,
not substitute for, the preexisting record.
To ensure that such communications are governed by transparent and
consistent procedures, the Office is issuing the following guidelines,
which may be supplemented by information on the Copyright Office's
website at https://www.copyright.gov/rulemaking/pre1972-soundrecordings-noncommercial/:
1. Any interested participant seeking an ex parte in-person or
telephone meeting with the Office in this proceeding should submit a
written request to the persons identified in the contact information
section of this NPRM. The request should identify the names of all
proposed attendees, and the party or parties on whose behalf each
attendee is appearing.
2. Ex parte meetings with the Office are intended to provide an
opportunity for participants to clarify evidence and/or arguments made
in prior written submissions, and to respond to questions from the
Office on those matters. The Office will generally not consider or
accept new documentary materials outside the rulemaking record.
3. Within two business days after the meeting, the attendees must
email the Office (using the above email addresses) a letter detailing
the information identified in paragraph 1 and summarizing the
discussion at the meeting. The letter must summarize the substance of
the views expressed and arguments made in such a way that a non-
participating party will understand the scope of issues discussed;
merely listing the subjects discussed or providing a 1-2 sentence
description will not be sufficient. These letters will be made publicly
available on the Copyright Office's website.
4. To ensure compliance with the statutory deadline, all ex parte
meetings in this proceeding must take place no later than Friday, March
22, 2019. The Office will not consider requests to hold meetings after
that date.

List of Subjects in 37 CFR Part 201

Proposed Regulations

In consideration of the foregoing, the U.S. Copyright Office
proposes amending 37 CFR part 201 as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

Authority: 17 U.S.C. 702.

0
2. Amend Sec. 201.3 as follows:
0
a. Redesignate paragraphs (c)(21) and (c)(22) as paragraphs (c)(23) and
(c)(24), respectively.
0
b. Add paragraphs (c)(21) and (c)(22) to read as follows:

[[Page 1676]]

Sec. 201.3 Fees for registration, recordation, and related services,
special services, and services performed by the Licensing Division.

* * * * *
(c) * * *

------------------------------------------------------------------------
Registration, recordation and related services Fees ($)
------------------------------------------------------------------------

* * * * * * *
(21) Notice of noncommercial use of pre-1972 sound recording 75
(22) Opt-out notice of noncommercial use of pre-1972 sound 75
recording..................................................

* * * * * * *
------------------------------------------------------------------------

* * * * *
0
3. Amend Sec. 201.4 as follows:
0
a. Revise paragraph (b)(3).
0
b. Revise paragraph (b)(10) by removing ``; and'' and replacing with
``;''.
0
c. Revise paragraphs (b)(11), (b)(12), and (b)(13) by removing the
period at the end of each paragraph and replacing with a semicolon.
0
d. Add paragraphs (b)(14) and (b)(15).
The additions and revisions read as follows:

Sec. 201.4 Recordation of transfers and other documents pertaining
to copyright.

* * * * *
(b) * * *
(3) Notices of use of sound recordings under statutory license and
notices of intention to obtain a compulsory license to make and
distribute phonorecords of nondramatic musical works (17 U.S.C. 112(e),
114, and 115(b); see Sec. Sec. 201.18, 370.2 of this chapter);
* * * * *
(14) Notices of noncommercial use of pre-1972 sound recordings (17
U.S.C. 1401(c)(1)(B); see Sec. 201.37); and
(15) Opt-out notices of noncommercial use of pre-1972 sound
recordings (17 U.S.C. 1401(c)(1)(C); see Sec. 201.37).
* * * * *
0
4. Add Sec. 201.37 to read as follows:

Sec. 201.37 Noncommercial use of pre-1972 sound recordings

(a) General. This section prescribes the rules under which a user,
desiring to make noncommercial use of a pre-1972 sound recording
pursuant to 17 U.S.C. 1401(c), conducts a good faith, reasonable search
to determine whether the sound recording is being commercially
exploited, and if not, files a notice of noncommercial use with the
Copyright Office. This section also prescribes the rules under which a
rights owner of a pre-1972 sound recording identified in a notice of
noncommercial use may file an opt-out notice opposing a proposed use of
the sound recording, pursuant to 17 U.S.C. 1401(c)(1)(C).
(b) Definitions. For purposes of this section:
(1) Unless otherwise specified, the terms used have the meanings
set forth in 17 U.S.C. 1401.
(2) A pre-1972 sound recording is a sound recording fixed before
February 15, 1972.
(3) For pre-1972 sound recordings of classical music, including
opera:
(i) The title of the pre-1972 sound recording means, to the extent
applicable and known by the user, any and all title(s) of the sound
recording and underlying musical composition known to the user, and the
composer and opus or catalogue number(s) of the underlying musical
composition; and
(ii) the featured artist(s) of the pre-1972 sound recording means,
to the extent applicable and known by the user, the featured
soloist(s); featured ensemble(s); featured conductor; and any other
featured performer(s).
(c) Conducting a good faith, reasonable search.
(1) Pursuant to 17 U.S.C. 1401(c)(3)(A), a user desiring to make
noncommercial use of a pre-1972 sound recording should search for the
sound recording in each of the categories below until the user finds
the sound recording. If the user does not find the pre-1972 sound
recording after searching the categories below, her search is
sufficient for purposes of the safe harbor in 17 U.S.C. 1401(c)(4),
establishing that she made a good faith, reasonable search without
finding commercial exploitation of the sound recording by or under the
authority of the rights owner. The categories are:
(i) Searching the Copyright Office's database of indexed schedules
listing right owners' pre-1972 sound recordings (https://www.copyright.gov/music-modernization/pre1972-soundrecordings/search-soundrecordings.html);
(ii) Searching at least one major search engine, namely Google,
Yahoo!, or Bing, to determine whether the pre-1972 sound recording is
being offered for sale in download form or as a new (not resale)
physical product, or is available through a streaming service;
(iii) Searching at least one of the following streaming services:
Amazon Music Unlimited, Apple Music, Spotify, or TIDAL;
(iv) Searching SoundExchange's repertoire database through the
SoundExchange ISRC lookup tool (https://isrc.soundexchange.com/#!/search);
(v) Searching at least one major seller of physical product, namely
Amazon.com, and if the pre-1972 sound recording is of classical music
or jazz, searching a smaller online music store that specializes in
product relative to that niche genre, namely: ArkivJazz, ArkivMusic,
Classical Archives, or Presto; in either case, to determine whether the
pre-1972 sound recording is being offered for sale in download form or
as a new (not resale) physical product; and
(vi) For pre-1972 ethnographic sound recordings of Alaska Native or
American Indian tribes or communities, searching, if such contact
information is known to the user, by contacting the relevant Alaska
Native or American Indian tribe and the holding institution of the
sound recording (such as a library or archive) to gather information to
determine whether the sound recording is being commercially exploited.
If this contact information is not previously known to the prospective
user, the user should use the information provided by the National
Congress of American Indians (NCAI) tribal directory to contact the
relevant tribe or NCAI itself (http://www.ncai.org/tribal-directory).
(2) A search under paragraph (c)(1) of this section must include
searching the title of the pre-1972 sound recording and its featured
artist(s). If the user knows any of the following attributes of the
sound recording, and the source being searched has the capability for
the user to search any of the following

[[Page 1677]]

attributes, the search must also include searching: Alternate artist
name(s), alternate title(s), album title, and the International
Standard Recording Code (``ISRC''). A user is encouraged, but not
required, to search additional known attributes, such as the label,
version, or Universal Product Code (``UPC'').
(3) A search under paragraph (c)(1) of this section must be
conducted within 90 days of the user (or her agent) filing a notice of
noncommercial use under paragraph (d)(1) of this section to be
sufficient for purposes of the safe harbor in 17 U.S.C. 1401(c)(4).
(4) For purposes of the safe harbor in 17 U.S.C. 1401(c)(4)(A), a
user cannot rely on:
(i) A search conducted under paragraph (c)(1) of this section by a
third party who is not the user's agent; or
(ii) A notice of noncommercial use filed under paragraph (d)(1) of
this section by a third party (who is not the user's agent) to which
the rights owner does not file an opt-out notice.
(d) Notices of noncommercial use.
(1) Form and submission. A user seeking to comply with 17 U.S.C.
1401(c)(1) must submit a notice of noncommercial use identifying the
pre-1972 sound recording that the user intends to use and the nature of
such use using an appropriate form provided by the Copyright Office on
its website and following the instructions provided on the Office's
website or the form itself. The Office may reject any submission that
fails to comply with the requirements of this section, or any relevant
instructions or guidance provided by the Office.
(2) Content. A notice of noncommercial use shall contain the
following:
(i) The user's full legal name, and whether the user is an
individual person or corporate entity, including whether the entity is
a tax-exempt organization as defined under the Internal Revenue Code.
Additional contact information, including an email address, may be
optionally provided.
(ii) The title and featured artist(s) of the pre-1972 sound
recording desiring to be used.
(iii) If any are known to the user, the alternate artist name(s),
alternate title(s), album title, and International Standard Recording
Code (ISRC).
(iv) The user may include additional optional information about the
pre-1972 sound recording as permitted by the Office's form or
instructions, such as the year of release.
(v) A description of the proposed noncommercial use, including a
summary of the project and its purpose, how the pre-1972 sound
recording will be used in the project, and when and where the proposed
use will occur (i.e., the term and U.S.-based territory of the use).
The user may include additional optional information detailing the
proposed use, such as the tentative title of the project, the playing
time of the pre-1972 sound recording to be used as well as total
playing time, description of corresponding visuals in the case of
audiovisual uses, and whether and how the user will credit the sound
recording title, featured artist, and/or rights owner in connection
with the project.
(vi) A certification that the user searched but did not find the
pre-1972 sound recording in a search conducted under paragraph (c) of
this section.
(vii) A certification that the individual submitting the notice of
noncommercial use has appropriate authority to submit the notice, that
the user desiring to make noncommercial use of the pre-1972 sound
recording (or the user's agent) conducted a search under paragraph (c)
within the last 90 days without finding commercial exploitation of the
sound recording, and that all information submitted to the Office is
true, accurate, and complete to the best of the individual's knowledge,
information, and belief, and is made in good faith.
(3) U.S.-based territory. Noncommercial use of a pre-1972 recording
under this section is limited to use within the United States.
(4) Number of sound recordings. A notice of noncommercial use may
not include proposed use for more than one pre-1972 sound recording
unless all of the sound recordings include the same featured artist(s)
and were released on the same pre-1972 album or unit of publication.
(5) Unique identifier. The Copyright Office will assign each
indexed notice of noncommercial use a unique identifier to identify the
notice in the Office's public records.
(6) Legal sufficiency.
(i) The Copyright Office does not review notices of noncommercial
use submitted under paragraph (d)(1) of this section for legal
sufficiency. The Office's review is limited to whether the procedural
requirements established by the Office (including payment of the proper
filing fee) have been met. The fact that the Office has indexed a
notice is not a determination by the Office of the notice's validity or
legal effect. Indexing by the Copyright Office is without prejudice to
any party claiming that the legal or formal requirements for making a
noncommercial use of a pre-1972 sound recording have not been met,
including before a court of competent jurisdiction. Users are therefore
cautioned to review and scrutinize notices of noncommercial use to
assure their legal sufficiency before submitting them to the Office.
(ii) If a rights owner does not file an opt-out notice under
paragraph (e) of this section, when the term of use specified in the
notice of noncommercial use ends, the user must cease noncommercial use
of the pre-1972 sound recording for purposes of remaining in the safe
harbor in 17 U.S.C. 1401(c)(4). Should the user desire to requalify for
the safe harbor with respect to that same pre-1972 sound recording, the
user must conduct a new search and file a new notice of noncommercial
use under paragraphs (c) and (d) of this section, respectively.
(7) Filing date. The date of filing of a notice of noncommercial
use is the date when a proper submission, including the prescribed fee,
is received in the Copyright Office. The filing date may not
necessarily be the same date that the notice, for purposes of 17 U.S.C.
1401(c)(1)(C), is indexed into the Office's public records.
(8) Fees. The filing fee to submit a notice of noncommercial use
pursuant to this section is prescribed in Sec. 201.3(c).
(9) Third-party notification. A person may request timely
notification of filings made under paragraph (d)(1) of this section by
following the instructions provided by the Copyright Office on its
website.
(e) Opt-out notices.
(1) Form and submission. A rights owner seeking to comply with 17
U.S.C. 1401(c)(1)(C) must file a notice opting out of a proposed
noncommercial use of a pre-1972 sound recording filed under paragraph
(d)(1) of this section using an appropriate form provided by the
Copyright Office on its website and following the instructions for
completion and submission provided on the Office's website or the form
itself. The Office may reject any submission that fails to comply with
the requirements of this section, or any relevant instructions or
guidance provided by the Office.
(2) Content. An opt-out notice use shall contain the following:
(i) The rights owner's name and the unique identifier assigned to
the notice of noncommercial use by the Copyright Office. Additional
contact information, including an email address, may be optionally
provided.
(ii) A certification that the individual submitting the opt-out
notice has appropriate authority to submit the notice and that all
information submitted to the Office is true, accurate,

[[Page 1678]]

and complete to the best of the individual's knowledge, information,
and belief, and is made in good faith.
(iii) Submission of an opt-out notice does not constitute agreement
by the rights owner or the individual submitting the opt-out notice
that the proposed use is in fact noncommercial. The submitter may
choose to comment upon whether the rights owner agrees that the
proposed use is noncommercial use, but failure to do so does not
constitute agreement that the proposed use is in fact noncommercial.
(3) Multiple rights owners. Where a pre-1972 sound recording has
multiple rights owners, only one rights owner needs to file an opt-out
notice for purposes of 17 U.S.C. 1401(c)(5).
(4) Effect of opting out. If a rights owner files a timely opt-out
notice under paragraph (e)(1) of this section, the user must wait one
year before filing another notice of noncommercial use proposing the
same or similar use of the same pre-1972 sound recording(s).
(5) Legal sufficiency. The Copyright Office does not review opt-out
notices submitted under paragraph (e)(1) of this section for legal
sufficiency. The Office's review is limited to whether the procedural
requirements established by the Office (including payment of the proper
filing fee) have been met. Rights owners are therefore cautioned to
review and scrutinize opt-out notices to assure their legal sufficiency
before submitting them to the Office.
(6) Filing date. The date of filing of an opt-out notice is the
date when a proper submission, including the prescribed fee, is
received in the Copyright Office.
(7) Fee. The filing fee to submit an opt-out notice pursuant to
this section is prescribed in Sec. 201.3(c).
(f) Fraudulent filings. If the Register becomes aware of abuse or
fraudulent filings under this section by or from a certain filer or
user, she shall have the discretion to reject all submissions from that
filer or user under this section for up to one year.

Dated: January 30, 2019.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2019-00873 Filed 2-4-19; 8:45 am]
BILLING CODE 1410-30-P