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

Copyright Office

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\
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    \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).
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    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\
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    \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.
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    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

    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

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