Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 37399-37403 [2020-12911]
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Federal Register / Vol. 85, No. 120 / Monday, June 22, 2020 / Proposed Rules
System of Records notice (85 FR 14226,
March 11, 2020).
Documents mentioned in this NPRM
as being available in the docket, and all
public comments, will be in our online
docket at https://www.regulations.gov
and can be viewed by following that
website’s instructions. Additionally, if
you go to the online docket and sign up
for email alerts, you will be notified
when comments are posted or a final
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List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard is proposing
to amend 33 CFR part 165 as follows:
or the Sector Columbia River Command
Center on Channel 16 VHF–FM. Those
in the safety zone must comply with all
lawful orders or directions given to
them by the COTP or the COTP’s
designated representative.
(d) Enforcement period. This safety
zone is in effect from 12:01 on
September 6, 2020 through 11:59 p.m.
on September 26, 2020. It will be subject
to enforcement this entire period unless
the Captain of the Port, Columbia River
determines it is no longer needed. The
Coast Guard will inform mariners of any
change to this period of enforcement via
Broadcast Notice to Mariners.
Dated: May 12, 2020.
J.C. Smith,
Captain, U.S. Coast Guard, Captain of the
Port Columbia River.
[FR Doc. 2020–13128 Filed 6–19–20; 8:45 am]
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
BILLING CODE 9110–04–P
1. The authority citation for part 165
continues to read as follows:
LIBRARY OF CONGRESS
■
Authority: 46 U.S.C. 70034, 70051; 33 CFR
1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 0170.1.
2. Add § 165.T13–0247 to read as
follows:
Copyright Office
37 CFR Part 201
[Docket No. 2020–11]
■
Exemptions to Permit Circumvention
of Access Controls on Copyrighted
Works
§ 165.T13–0247 Safety Zone[s]; Safety
Zone; I–5 Bridge Construction Project,
Columbia River, Vancouver, WA.
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U.S. Copyright Office, Library
of Congress.
ACTION: Notification of inquiry and
request for petitions.
AGENCY:
(a) Location. The following area is a
safety zone: All navigable waters of the
Columbia River, surface to bottom,
encompassed by a line connecting the
following points beginning at the
shoreline at 45°37′17.7″ N/122°40′31.4″
W, southwest to 45°37′12.1″ N/
122°40′35.0″ W, southeast to 45°37′08.8″
N/122°40′22.1″ W, thence northeast to
45°37′15.0″ N/122°40′18.3″ W, and
along the shoreline back to the
beginning point.
(b) Definitions. As used in this
section, designated representative
means any Coast commissioned,
warrant, or petty officer who has been
authorized by the Captain of the Port
Columbia River (COTP) to act on his
behalf, or a Federal, State, and local
officer designated by or assisting the
Captain of the Port Columbia River in
the enforcement of the safety zone.
(c) Regulations. (1) Under the general
safety zone regulations in subpart C of
this part, you may not enter the safety
zone described in paragraph (a) of this
section unless authorized by the COTP
or the COTP’s designated representative.
(2) Vessel operators desiring to enter
or operate with the safety zone may
contact the COTP’s on-scene designated
representative by calling (503) 209–2468
The United States Copyright
Office is initiating the eighth triennial
rulemaking proceeding under the Digital
Millennium Copyright Act (‘‘DMCA’’),
to consider possible temporary
exemptions to the DMCA’s prohibition
against circumvention of technological
measures that control access to
copyrighted works. In this proceeding,
the Copyright Office is again providing
a streamlined procedure for the renewal
of exemptions that were granted during
the seventh triennial rulemaking. If
renewed, those current exemptions
would remain in force for an additional
three-year period (October 2021–
October 2024). Members of the public
seeking the renewal of current
exemptions should submit petitions as
described below; parties opposing such
renewal will then have the opportunity
to file comments in response. The Office
is also accepting petitions for new
exemptions to engage in activities not
currently permitted by existing
exemptions, which may include
proposals that expand upon a current
exemption. Those petitions, and any
SUMMARY:
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renewal petitions that are meaningfully
opposed, will be considered pursuant to
a more comprehensive rulemaking
process similar to that of the seventh
rulemaking, including three rounds of
written comment, followed by public
hearings, which may be conducted
virtually.
Written petitions for renewal of
current exemptions must be received no
later than 11:59 p.m. Eastern Time on
July 22, 2020. Written comments in
response to any petitions for renewal
must be received no later than 11:59
p.m. Eastern Time on September 8,
2020. Written petitions for new
exemptions must be received no later
than 11:59 p.m. Eastern Time on
September 8, 2020.
ADDRESSES: Written petitions for
renewal of current exemptions must be
completed using the form provided on
the Office’s website at https://
www.copyright.gov/1201/2021/renewalpetition.pdf. Written petitions proposing
new exemptions must be completed
using the form provided on the Office’s
website at https://www.copyright.gov/
1201/2021/new-petition.pdf. The
Copyright Office is using the
regulations.gov system for the
submission and posting of public
petitions and comments in this
proceeding. All petitions and comments
are therefore to be submitted
electronically through regulations.gov.
Specific instructions for submitting
petitions and comments are available on
the Copyright Office website at https://
www.copyright.gov/1201/2021. If
electronic submission is not feasible,
please contact the Office using the
contact information below for special
instructions.
DATES:
FOR FURTHER INFORMATION CONTACT:
Regan A. Smith, General Counsel and
Associate Register of Copyrights,
regans@copyright.gov or Kevin R. Amer,
Deputy General Counsel, kamer@
copyright.gov. They can be reached by
telephone at (202) 707–3000.
SUPPLEMENTARY INFORMATION:
I. The Digital Millennium Copyright Act
and Section 1201
The Digital Millennium Copyright Act
(‘‘DMCA’’) 1 has played a pivotal role in
the development of the modern digital
economy. Enacted by Congress in 1998
to implement the United States’
obligations under two international
treaties,2 the DMCA was intended to
1 Public
Law 105–304, 112 Stat. 2860 (1998).
Copyright Treaty, Dec. 20, 1996, 36 I.L.M.
65 (1997); WIPO Performances and Phonograms
Treaty, Dec. 20, 1996, 36 I.L.M. 76 (1997).
2 WIPO
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foster the growth and development of a
thriving, innovative, and flexible digital
marketplace by making digital networks
safe places to disseminate and use
copyrighted materials.3 It did this by,
among other things, providing new legal
protections for copyrighted content
made available in digital formats.4
These protections, codified in section
1201 of title 17, United States Code,
seek to balance the interests of copyright
owners and users, including the
personal interests of consumers, in the
digital environment.5 Section 1201
protects technological measures (also
called technological protection
measures or TPMs) used by copyright
owners to prevent unauthorized access
to or use of their works.6 Section 1201
contains three separate protections for
TPMs. First, it prohibits circumvention
of technological measures employed by
or on behalf of copyright owners to
protect access to their works (also
known as access controls). Access
controls include, for example, a
password requirement limiting access to
an online service to paying customers or
an authentication code in a video game
console to prevent the playing of pirated
copies. Second, the statute prohibits
trafficking in devices or services
primarily designed to circumvent access
controls. Finally, it prohibits trafficking
in devices or services primarily
designed to circumvent TPMs used to
protect the exclusive rights of the
copyright owner of a work (also known
as copy controls). Copy controls protect
against unauthorized uses of a
copyrighted work once access has been
lawfully obtained. They include, for
example, technology preventing the
copying of an e-book after it has been
downloaded to a user’s device. Because
title 17 already provides remedies for
copyright infringement, there is no
corresponding ban on the act of
circumventing a copy control.7 All these
prohibitions supplement the preexisting
rights of copyright owners under the
Copyright Act of 1976 by establishing
separate and distinct causes of action
3 See
Staff of H. Comm. on the Judiciary, 105th
Cong., Section-by-Section Analysis of H.R. 2281 as
Passed by the United States House of
Representatives on August 4th, 1998, at 2, 6 (Comm.
Print 1998) (‘‘House Manager’s Report’’); H.R. Rep.
No. 105–551, pt. 2, at 21, 23 (1998); H.R. Rep. No.
105–551, pt. 1, at 10 (1998); S. Rep. No. 105–190,
at 1–2, 8–9 (1998).
4 See House Manager’s Report at 6 (noting
Congress’s intention to ‘‘support new ways of
disseminating copyrighted materials to users, and to
safeguard the availability of legitimate uses of those
materials by individuals’’).
5 See H.R. Rep. No. 105–551, pt. 2, at 26.
6 17 U.S.C. 1201(a)–(b).
7 S. Rep. No. 105–190, at 12.
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independent of any infringement of
copyright.8
Section 1201 contains a number of
specific exemptions to these
prohibitions, to avoid curtailing
legitimate activities such as security
testing, law enforcement activities, or
the protection of personally identifying
information.9 In addition, to
accommodate changing marketplace
conditions and ensure that access to
copyrighted works for other lawful
purposes is not unjustifiably
diminished,10 the statute provides for a
rulemaking proceeding where
temporary exemptions to the
prohibition on circumventing access
controls may be adopted by the
Librarian of Congress, upon the
recommendation of the Register of
Copyrights in consultation with the
Assistant Secretary for Communications
and Information of the Department of
Commerce.11 In contrast to the
permanent exemptions set out by
statute, exemptions adopted pursuant to
the rulemaking must be reconsidered
every three years.12 By statute, the
triennial rulemaking process only
addresses the prohibition on
circumvention of access controls; the
statute does not grant the authority to
adopt exemptions to the anti-trafficking
provisions.13
For an exemption to be granted
through the triennial rulemaking, it
must be established that ‘‘persons who
are users of a copyrighted work are, or
are likely to be in the succeeding 3-year
period, adversely affected by the
prohibition . . . in their ability to make
noninfringing uses under [title 17] of a
particular class of copyrighted
works.’’ 14 In evaluating the evidence,
several statutory factors must be
weighed: ‘‘(i) the availability for use of
copyrighted works; (ii) the availability
for use of works for nonprofit archival,
preservation, and educational purposes;
(iii) the impact that the prohibition on
the circumvention of technological
measures applied to copyrighted works
has on criticism, comment, news
reporting, teaching, scholarship, or
research; (iv) the effect of circumvention
of technological measures on the market
for or value of copyrighted works; and
8 See
U.S. Copyright Office, Section 1201 of Title
17, at i, iii, 43–45 (June 2017), https://
www.copyright.gov/policy/1201/section-1201-fullreport.pdf (‘‘Section 1201 Study’’).
9 17 U.S.C. 1201(d)–(j).
10 H.R. Rep. No. 105–551, pt. 2, at 35–36.
11 17 U.S.C. 1201(a)(1)(C); see also id.
1201(a)(1)(B)–(D).
12 Id. 1201(a)(1)(C).
13 Id. 1201(a)(1)(C), (a)(1)(E).
14 Id. 1201(a)(1)(C).
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(v) such other factors as the Librarian
considers appropriate.’’ 15
II. Overview of the Rulemaking Process
To assess whether the implementation
of access controls impairs the ability of
individuals to make noninfringing uses
of copyrighted works, the Copyright
Office solicits exemption proposals from
the public and develops a
comprehensive administrative record
using information submitted by
interested parties.16 Based on that
record, the Register provides a written
recommendation to the Librarian
concerning which exemptions are
warranted based on that record. The
recommendation includes proposed
regulatory text for adoption and
publication in the Federal Register.
The rulemaking process for the eighth
triennial proceeding will be generally
the same as the process followed in the
seventh proceeding. This includes the
streamlined procedure introduced in the
seventh proceeding through which
members of the public may petition for
current temporary exemptions that were
granted during the previous rulemaking
to remain in force for an additional
three-year period (October 2021–
October 2024).
With this notification of inquiry, the
Copyright Office is initiating the
petition phase of the rulemaking, calling
for the public to submit petitions both
to renew current exemptions, as well as
any comments in support of or
opposition to such petitions, and to
propose new exemptions. This twotrack petition process is described
below. After the close of the petition
phase, the Office will publish a notice
of proposed rulemaking (‘‘NPRM’’) to
initiate the next phase of the rulemaking
process, as described below.
Video tutorials explaining section
1201 in general and the rulemaking
process can be found on the Office’s
1201 rulemaking web page at https://
www.copyright.gov/1201.
III. Process for Seeking Renewal of
Current Exemptions
In the prior rulemaking, the Copyright
Office introduced a streamlined process
15 Id.
16 See H.R. Rep. No. 105–796, at 64 (1998) (Conf.
Rep.) (‘‘It is the intention of the conferees that . . .
the Register of Copyrights will conduct the
rulemaking, including providing notice of the
rulemaking, seeking comments from the public,
consulting with the Assistant Secretary for
Communications and Information of the
Department of Commerce and any other agencies
that are deemed appropriate, and recommending
final regulations in the report to the Librarian.’’);
see also H.R. Rep. No. 106–464, at 149 (1999) (Conf.
Rep.) (‘‘[T]he Copyright Office shall conduct the
rulemaking under section 1201(a)(1)(C) . . . .’’).
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to facilitate the renewal of previously
adopted exemptions for which there
was no meaningful opposition.17 This
process was initiated shortly after the
Office concluded a comprehensive
public policy study of section 1201.18 In
that study, following careful analysis of
relevant legal principles and noting a
broad consensus of stakeholders
supporting an expedited process to
consider renewal of such exemptions,
the Office concluded that ‘‘the statute
itself requires that exemptions cannot be
renewed automatically, presumptively,
or otherwise, without a fresh
determination concerning the next
three-year period. . . . [A]
determination must be made
specifically for each triennial period.’’ 19
The Office further determined, however,
that ‘‘the statutory language appears to
be broad enough to permit
determinations to be based upon
evidence drawn from prior proceedings,
but only upon a conclusion that this
evidence remains reliable to support
granting an exemption in the current
proceeding.’’ 20
Those seeking readoption of a current
exemption may petition for renewal by
submitting the Copyright Office’s
required fillable form, available on the
Office’s website at https://
www.copyright.gov/1201/2021/renewalpetition.pdf. This form is for renewal
petitions only. The Office has a separate
form, discussed below, for petitions for
new exemptions.
Scope of Renewal. Renewal may only
be sought for current exemptions as they
are currently formulated, without
modification. This means that if a
proponent seeks to engage in any
activities not currently permitted by an
existing exemption, a petition for a new
exemption must be submitted. Where a
petitioner seeks to engage in activities
that expand upon a current exemption,
the Office recommends that the
petitioner submit both a petition to
renew the current exemption, and,
separately, a petition for a new
exemption. In such cases, the petition
for a new exemption need only discuss
those issues relevant to the proposed
expansion of the current exemption. If
the Office recommends readoption of
the current exemption, then only those
discrete aspects relevant to the
expansion will be subject to the more
comprehensive rulemaking procedure
described below.
Automatic Reconsideration. If the
Office declines to recommend renewal
17 82
FR 29804 (June 30, 2017).
generally Section 1201 Study.
19 Id. at 142.
20 Id. at 143.
18 See
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of a current exemption (as discussed
below), the petition to renew will
automatically be treated as a petition for
a new exemption, and will be
considered pursuant to the more
comprehensive rulemaking proceeding.
If a proponent has petitioned both for
renewal and an expansion, and the
Office declines to recommend renewal,
the entire exemption (i.e., the current
exemption along with the proposed
expansion) will automatically be
considered under the more
comprehensive proceeding.
Petition Form and Contents. The
petition to renew is a short form
designed to let proponents identify
themselves and the relevant exemption,
and to make certain sworn statements to
the Copyright Office concerning the
existence of a continuing need and
justification for the exemption. Use of
the Office’s prepared form is mandatory,
and petitioners must follow the
instructions contained in this notice and
on the petition form. A separate petition
form must be submitted for each current
exemption for which renewal is sought.
This is required for reasons of
administrability and so it is clear to
which exemption the stated basis for
renewal applies. While a single petition
may not encompass more than one
current exemption, the same party may
submit multiple petitions.
The petition form has four
components:
1. Petitioner identity and contact
information. The form asks for each
petitioner (i.e., the individual or entity
seeking renewal) to provide its name
and the name of its representative, if
any, along with contact information.
Any member of the public capable of
making the sworn declaration discussed
below may submit a petition for
renewal, regardless of prior involvement
with past rulemakings. Petitioners and/
or their representatives should be
reachable through the provided contact
information for the duration of the
rulemaking proceeding. Multiple
petitioning parties may jointly file a
single petition.
2. Identification of the current
exemption that is the subject of the
petition. The form lists all current
exemptions granted during the last
rulemaking (codified at 37 CFR 201.40),
with a check box next to each. The
exemption for which renewal is sought
is to be identified by marking the
appropriate checkbox.
3. Explanation of need for renewal.
The petitioner must provide a brief
explanation summarizing the basis for
claiming a continuing need and
justification for the exemption. The
required showing is meant to be
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minimal. The Office anticipates that
petitioners will provide a paragraph or
two detailing this information, but there
is no page limit. While it is permissible
to attach supporting documentary
evidence as exhibits to the petition, it is
not necessary. The Office’s petition form
includes an example of what it regards
as a sufficient explanation.
4. Declaration and signature. One of
the petitioners named in the petition
must sign a declaration attesting to the
continued need for the exemption and
the truth of the explanation provided in
support. Where the petitioner is an
entity, the declaration must be signed by
an individual at the organization having
appropriate personal knowledge to
make the declaration. The declaration
may be signed electronically.
For the attestation to be trustworthy
and reliable, it is important that the
petitioner make it based on his or her
own personal knowledge and
experience. This requirement should
not be burdensome, as a broad range of
individuals have a sufficient level of
knowledge and experience. For
example, a blind individual having
difficulty finding and purchasing ebooks with appropriate assistive
technologies would have such personal
knowledge and experience to make the
declaration with regard to the assistive
technology exemption; so would a
relevant employee or volunteer at an
organization like the American
Foundation for the Blind, which
advocates for the blind, visually
impaired, and print disabled, is familiar
with the needs of the community, and
is well-versed specifically in the e-book
accessibility issue. It would be
improper, however, for a general
member of the public to petition for
renewal if he or she knows nothing
more about matters concerning e-book
accessibility other than what he or she
might have read in a brief newspaper
article, or simply opposes the use of
digital rights management tools as a
matter of general principle.
The declaration also requires
affirmation that, to the best of the
petitioner’s knowledge, there has not
been any material change in the facts,
law, or other circumstances set forth in
the prior rulemaking record (available at
https://www.copyright.gov/1201/2018)
that originally demonstrated the need
for the selected exemption, such that
renewal of the exemption would not be
justified. By ‘‘material change,’’ the
Office means a significant change in the
underlying conditions that originally
justified the exemption when it was first
granted, such that the appropriateness
of continuing the exemption for another
three years based on that original
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justification is called into question. This
attestation tells the Office that the prior
rulemaking record from when the
current exemption was originally
granted is still ripe and applicable in
considering whether or not the same
exemption is appropriate for the
subsequent triennial period. Only after
finding the old record to still be
germane can the Office rely upon it in
deciding, pursuant to 17 U.S.C.
1201(a)(1)(C), whether to recommend
renewal.
C. Comments in Response to a Petition
To Renew an Exemption
Any interested party may respond to
a petition to renew a current exemption
by submitting comments. While the
primary purpose of these comments is
to allow for opposition to renewing the
exemption, comments in support of
renewal are also permitted. Although no
form is being provided for such
comments, the first page of any
responsive comments must clearly
identify which exemption’s readoption
is being supported or opposed. While
participants may comment on more than
one exemption, a single submission may
not address more than one exemption.
For example, a party that wishes to
oppose the renewal of both the wireless
device unlocking exemption and the
jailbreaking exemption must file
separate comments for each.21 The
Office acknowledges that this format
may require some parties to repeat
certain general information (e.g., about
their organization) across multiple
submissions, but the Office believes that
the administrative benefits of creating
self-contained, separate records for each
exemption will be worth the modest
amount of added effort involved.
Opposition to a renewal petition must
be meaningful, such that, from the
evidence provided, it would be
reasonable for the Office to conclude
that the prior rulemaking record and
any further information provided in the
renewal petition are insufficient to
support recommending renewal of an
exemption. For example, a change in
case law might affect whether a
particular use is noninfringing, new
technological developments might affect
the availability for use of copyrighted
works, or new business models might
affect the market for or value of
21 Commenters may, however, respond to
multiple petitions to renew the same exemption in
a single submission. For instance, if the Office
receives six petitions in favor of readopting the
current wireless device unlocking exemption, a
commenter can file a single comment that addresses
points made in the six petitions. That comment,
however, may not address petitions to readopt the
jailbreaking exemption.
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copyrighted works. Such evidence
could cause the Office to conclude that
the prior evidentiary record is too stale
to rely upon for an assessment affecting
the subsequent three-year period. The
Office may also consider whether
opposition is meaningful only as to part
of a current exemption.
Unsupported conclusory opinion and
speculation will not be enough for the
Office to refuse to recommend renewing
an exemption it would have otherwise
recommended in the absence of any
opposition, or to subject consideration
of this exemption to the more
comprehensive rulemaking procedure.
IV. Process for Seeking New
Exemptions
Those seeking to engage in activities
not currently permitted by an existing
exemption, including activities that
expand upon a current exemption, may
propose a new exemption by filing a
petition using the Copyright Office’s
required fillable form, available on the
Office’s website at https://
www.copyright.gov/1201/2021/newpetition.pdf. Use of the Office’s
prepared form is mandatory, and
petitioners must follow the instructions
contained in this notice and on the
petition form. As in the seventh
rulemaking, a separate petition must be
filed for each proposed exemption. The
Office anticipates that it will, once
again, receive a significant number of
submissions, and requiring separate
submissions for each proposed
exemption will help both participants
and the Office keep better track of the
record for each proposed exemption.
Although a single petition may not
encompass more than one proposed
exemption, the same party may submit
multiple petitions.
The petition form has two
components:
1. Petitioner identity and contact
information. The form asks for each
petitioner (i.e., the individual or entity
proposing the exemption) to provide its
name and the name of its representative,
if any, along with contact information.
Petitioners and/or their representatives
should be reachable through the
provided contact information for the
duration of the rulemaking proceeding.
Multiple petitioning parties may jointly
file a single petition.
2. Description of the proposed
exemption. At this stage, the Office is
only asking petitioners to briefly explain
the nature of the proposed new or
expanded exemption. The information
that would be most helpful to the Office
includes the following, to the extent
relevant: (1) The types of copyrighted
works that need to be accessed; (2) the
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physical media or devices on which the
works are stored or the services through
which the works are accessed; (3) the
purposes for which the works need to be
accessed; (4) the types of users who
want access; and (5) the barriers that
currently exist or which are likely to
exist in the near future preventing these
users from obtaining access to the
relevant copyrighted works.
To be clear, petitioners do not need to
propose precise regulatory language or
fully define the contours of an
exemption class in the petition. A short,
plain statement describing the nature of
the activities the petitioners wish to
engage in is sufficient. Although there is
no page limit, the Office anticipates that
petitioners will be able to adequately
describe in plain terms the relevant
information in a few sentences. The
Office’s petition form includes examples
of what it regards as a sufficient
description of a requested exemption.
Nor does the Office intend for
petitioners to deliver the complete legal
and evidentiary basis for their proposals
in the petition, and specifically requests
that petitioners not do so. Rather, the
sole purpose of the petition is to provide
the Office with basic information about
the uses of copyrighted works that are
adversely affected by the prohibition on
circumvention. The Office will then use
that information to itself formulate
categories of potential exemptions, and
group similar proposals into those
categories, for purposes of the next,
more substantive, phase of the
rulemaking beginning with the
publication of the NPRM.
Indeed, as during the previous two
rulemakings, even the NPRM will not
‘‘put forward precise regulatory
language for the proposed classes,
because any specific language for
exemptions that the Register ultimately
recommends to the Librarian will
necessarily depend on the full record
developed during this rulemaking.’’ 22
Rather, the proposed categories of
exemptions described in the NPRM will
‘‘represent only a starting point for
further consideration in the rulemaking
proceeding, and will be subject to
further refinement based on the
record.’’ 23 Thus, proponents will have
the opportunity to further refine or
expound upon their initial petitions
during later phases of the rulemaking.
V. Notice of Proposed Rulemaking
Following receipt of all petitions, as
well as comments on petitions for
22 82 FR at 29807 (quoting 79 FR 73856, 73859
(Dec. 12, 2014)).
23 Id. (internal quotation marks and citation
omitted).
E:\FR\FM\22JNP1.SGM
22JNP1
Federal Register / Vol. 85, No. 120 / Monday, June 22, 2020 / Proposed Rules
renewal, the Office will evaluate the
material received and will issue an
NPRM addressing all of the potential
exemptions to be considered in the
rulemaking.
The NPRM will set forth which
exemptions the Register will
recommend for readoption, along with
proposed regulatory language. The
NPRM will also identify any exemptions
the Register has declined to recommend
for renewal under the streamlined
process, after considering any
opposition received. Those exemptions
will instead be subject to the more
comprehensive rulemaking procedure in
order to build out the administrative
record. The Register will not at the
NPRM stage make a final determination
to reject recommendation of any
exemption that meets the threshold
requirements of section 1201(a).24
For current exemptions for which
renewal was sought but which were not
recommended for readoption through
the streamlined process and all new
exemptions, including proposals to
expand current exemptions, the NPRM
will group them appropriately, describe
them, and initiate at least three rounds
of public comment. As with the seventh
rulemaking, the Office plans to
consolidate or group related and/or
overlapping proposed exemptions
where possible to simplify the
rulemaking process and encourage joint
participation among parties with
common interests (though such
collaboration is not required). As in
previous rulemakings, the exemptions
as described in the NPRM will represent
only a starting point for further
consideration in the rulemaking
proceeding, and will be subject to
further refinement based on the record.
The NPRM will provide guidance
regarding specific areas of legal and
factual interest for the Office with
respect to each proposed exemption,
and suggest particular types of evidence
that participants may wish to submit for
the record. It will also contain
additional instructions and
requirements for submitting comments
and will detail the later phases of the
rulemaking proceeding—i.e., public
hearings, post-hearing questions,
recommendation, and final rule—which
will be similar to those of the seventh
rulemaking.
24 See 79 FR 55687, 55692 (Sept. 17, 2014)
(explaining that part of the purpose of providing the
information in the petition phase is so the Office
can ‘‘confirm that the threshold requirements of
section 1201(a) can be met’’); see also 79 FR at
73859 (noting that three petitions sought an
exemption which could not be granted as a matter
of law and declining to put them forward for
comment).
VerDate Sep<11>2014
17:35 Jun 19, 2020
Jkt 250001
The Office expects to follow a similar
timeframe for issuance of the NPRM and
submission of comments that applied
during the seventh rulemaking. In
addition, as it did in the previous
rulemaking, the Office will look for
opportunities to discuss discrete issues,
including suggestions regarding
regulatory language, through its ex parte
meeting process, and to ask additional
post-hearing questions, where necessary
to ensure sufficient stakeholder
participation.25
Dated: June 11, 2020.
Regan A. Smith,
General Counsel and Associate Register of
Copyrights.
[FR Doc. 2020–12911 Filed 6–19–20; 8:45 am]
BILLING CODE 1410–30–P
POSTAL REGULATORY COMMISSION
39 CFR part 3050
[Docket No. RM2020–10; Order No. 5548]
Periodic Reporting
Postal Regulatory Commission.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Commission is
acknowledging a recent filing requesting
the Commission initiate a rulemaking
proceeding to consider changes to
analytical principles relating to periodic
reports (Proposal Three). This document
informs the public of the filing, invites
public comment, and takes other
administrative steps.
DATES: Comments are due: August 14,
2020.
ADDRESSES: Submit comments
electronically via the Commission’s
Filing Online system at https://
www.prc.gov. Those who cannot submit
comments electronically should contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section by
telephone for advice on filing
alternatives.
FOR FURTHER INFORMATION CONTACT:
David A. Trissell, General Counsel, at
202–789–6820.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Table of Contents
I. Introduction
II. Proposal Three
III. Notice and Comment
IV. Ordering Paragraphs
25 See 82 FR at 29808; U.S. Copyright Office, Ex
Parte Communications, https://www.copyright.gov/
1201/2018/ex-parte-communications.html; U.S.
Copyright Office, Additional Correspondence from
Participants in Proposed Class 10, https://
www.copyright.gov/1201/2018/additionalcorrespondence/; Section 1201 Study at 150–51.
PO 00000
Frm 00011
Fmt 4702
Sfmt 4702
37403
I. Introduction
On June 11, 2020, the Postal Service
filed a petition pursuant to 39 CFR
3050.11 requesting that the Commission
initiate a rulemaking proceeding to
consider changes to analytical
principles relating to periodic reports.1
The Petition identifies the proposed
analytical changes filed in this docket as
Proposal Three.
II. Proposal Three
Background. The Postal Service’s
current In-Office Cost System (IOCS)
design uses a multi-stage probability
sample to randomly select craft
employees, including city carriers, and
then an interval of work time from the
employee’s tour for a ‘‘snapshot’’ of
work activities in the work interval.
Petition, Proposal Three at 1. The Postal
Service states that moving data
collectors to distant delivery units for
carrier readings is costly so that in FY
2019, of over 250,000 individual
readings scheduled on city carriers, over
85 percent were conducted by
telephone. Id. The Postal Service asserts
that the availability of detailed clock
ring data from the Time and Attendance
Collection System (TACS) allows
reshaping of the sampling design to
improve sampling efficiency and data
quality. Id. The Postal Service explains
that In Docket No. RM2019–6, the
Commission approved the modelling of
all Special Purpose Route (SPR) carrier
costs using TACS data and econometric
equations.2
Proposal. The Postal Service states
that Proposal Three would change IOCS
system design for city carriers to a
cluster sampling utilizing census data
from TACS to enable on-site data
collection at locations and times where
and when city carriers are working on
the premises. Petition, Proposal Three at
3. Rather than sampling individual
employees, the proposed design would
sample blocks of time and then
subsample clusters of carriers working
during those blocks of time. Id. The
Postal Service asserts that this new
design improves data quality with more
on-site data rather than telephone
readings and, thereby, improves data
collection efficiency. Id. at 1.
1 Petition of the United States Postal Service for
the Initiation of a Proceeding to Consider Proposed
Changes in Analytical Principles (Proposal Three),
June 11, 2020 (Petition). The Postal Service also
filed a notice of filing of public and non-public
materials relating to Proposal Three. Notice of
Filing of USPS–RM2020–10–1 and USPS–RM2020–
10–NP1 and Application for Nonpublic Treatment,
June 11, 2020.
2 Id. at 1–2. Docket No. RM2019–6, Order on
Analytical Principles Used in Periodic Reporting
(Proposal One), January 14, 2020 (Order No. 5405).
E:\FR\FM\22JNP1.SGM
22JNP1
Agencies
[Federal Register Volume 85, Number 120 (Monday, June 22, 2020)]
[Proposed Rules]
[Pages 37399-37403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12911]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 2020-11]
Exemptions to Permit Circumvention of Access Controls on
Copyrighted Works
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notification of inquiry and request for petitions.
-----------------------------------------------------------------------
SUMMARY: The United States Copyright Office is initiating the eighth
triennial rulemaking proceeding under the Digital Millennium Copyright
Act (``DMCA''), to consider possible temporary exemptions to the DMCA's
prohibition against circumvention of technological measures that
control access to copyrighted works. In this proceeding, the Copyright
Office is again providing a streamlined procedure for the renewal of
exemptions that were granted during the seventh triennial rulemaking.
If renewed, those current exemptions would remain in force for an
additional three-year period (October 2021-October 2024). Members of
the public seeking the renewal of current exemptions should submit
petitions as described below; parties opposing such renewal will then
have the opportunity to file comments in response. The Office is also
accepting petitions for new exemptions to engage in activities not
currently permitted by existing exemptions, which may include proposals
that expand upon a current exemption. Those petitions, and any renewal
petitions that are meaningfully opposed, will be considered pursuant to
a more comprehensive rulemaking process similar to that of the seventh
rulemaking, including three rounds of written comment, followed by
public hearings, which may be conducted virtually.
DATES: Written petitions for renewal of current exemptions must be
received no later than 11:59 p.m. Eastern Time on July 22, 2020.
Written comments in response to any petitions for renewal must be
received no later than 11:59 p.m. Eastern Time on September 8, 2020.
Written petitions for new exemptions must be received no later than
11:59 p.m. Eastern Time on September 8, 2020.
ADDRESSES: Written petitions for renewal of current exemptions must be
completed using the form provided on the Office's website at https://www.copyright.gov/1201/2021/renewal-petition.pdf. Written petitions
proposing new exemptions must be completed using the form provided on
the Office's website at https://www.copyright.gov/1201/2021/new-petition.pdf. The Copyright Office is using the regulations.gov system
for the submission and posting of public petitions and comments in this
proceeding. All petitions and comments are therefore to be submitted
electronically through regulations.gov. Specific instructions for
submitting petitions and comments are available on the Copyright Office
website at https://www.copyright.gov/1201/2021. If electronic
submission is not feasible, 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, [email protected] or Kevin R.
Amer, Deputy General Counsel, [email protected]. They can be reached
by telephone at (202) 707-3000.
SUPPLEMENTARY INFORMATION:
I. The Digital Millennium Copyright Act and Section 1201
The Digital Millennium Copyright Act (``DMCA'') \1\ has played a
pivotal role in the development of the modern digital economy. Enacted
by Congress in 1998 to implement the United States' obligations under
two international treaties,\2\ the DMCA was intended to
[[Page 37400]]
foster the growth and development of a thriving, innovative, and
flexible digital marketplace by making digital networks safe places to
disseminate and use copyrighted materials.\3\ It did this by, among
other things, providing new legal protections for copyrighted content
made available in digital formats.\4\
---------------------------------------------------------------------------
\1\ Public Law 105-304, 112 Stat. 2860 (1998).
\2\ WIPO Copyright Treaty, Dec. 20, 1996, 36 I.L.M. 65 (1997);
WIPO Performances and Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 76
(1997).
\3\ See Staff of H. Comm. on the Judiciary, 105th Cong.,
Section-by-Section Analysis of H.R. 2281 as Passed by the United
States House of Representatives on August 4th, 1998, at 2, 6 (Comm.
Print 1998) (``House Manager's Report''); H.R. Rep. No. 105-551, pt.
2, at 21, 23 (1998); H.R. Rep. No. 105-551, pt. 1, at 10 (1998); S.
Rep. No. 105-190, at 1-2, 8-9 (1998).
\4\ See House Manager's Report at 6 (noting Congress's intention
to ``support new ways of disseminating copyrighted materials to
users, and to safeguard the availability of legitimate uses of those
materials by individuals'').
---------------------------------------------------------------------------
These protections, codified in section 1201 of title 17, United
States Code, seek to balance the interests of copyright owners and
users, including the personal interests of consumers, in the digital
environment.\5\ Section 1201 protects technological measures (also
called technological protection measures or TPMs) used by copyright
owners to prevent unauthorized access to or use of their works.\6\
Section 1201 contains three separate protections for TPMs. First, it
prohibits circumvention of technological measures employed by or on
behalf of copyright owners to protect access to their works (also known
as access controls). Access controls include, for example, a password
requirement limiting access to an online service to paying customers or
an authentication code in a video game console to prevent the playing
of pirated copies. Second, the statute prohibits trafficking in devices
or services primarily designed to circumvent access controls. Finally,
it prohibits trafficking in devices or services primarily designed to
circumvent TPMs used to protect the exclusive rights of the copyright
owner of a work (also known as copy controls). Copy controls protect
against unauthorized uses of a copyrighted work once access has been
lawfully obtained. They include, for example, technology preventing the
copying of an e-book after it has been downloaded to a user's device.
Because title 17 already provides remedies for copyright infringement,
there is no corresponding ban on the act of circumventing a copy
control.\7\ All these prohibitions supplement the preexisting rights of
copyright owners under the Copyright Act of 1976 by establishing
separate and distinct causes of action independent of any infringement
of copyright.\8\
---------------------------------------------------------------------------
\5\ See H.R. Rep. No. 105-551, pt. 2, at 26.
\6\ 17 U.S.C. 1201(a)-(b).
\7\ S. Rep. No. 105-190, at 12.
\8\ See U.S. Copyright Office, Section 1201 of Title 17, at i,
iii, 43-45 (June 2017), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf (``Section 1201 Study'').
---------------------------------------------------------------------------
Section 1201 contains a number of specific exemptions to these
prohibitions, to avoid curtailing legitimate activities such as
security testing, law enforcement activities, or the protection of
personally identifying information.\9\ In addition, to accommodate
changing marketplace conditions and ensure that access to copyrighted
works for other lawful purposes is not unjustifiably diminished,\10\
the statute provides for a rulemaking proceeding where temporary
exemptions to the prohibition on circumventing access controls may be
adopted by the Librarian of Congress, upon the recommendation of the
Register of Copyrights in consultation with the Assistant Secretary for
Communications and Information of the Department of Commerce.\11\ In
contrast to the permanent exemptions set out by statute, exemptions
adopted pursuant to the rulemaking must be reconsidered every three
years.\12\ By statute, the triennial rulemaking process only addresses
the prohibition on circumvention of access controls; the statute does
not grant the authority to adopt exemptions to the anti-trafficking
provisions.\13\
---------------------------------------------------------------------------
\9\ 17 U.S.C. 1201(d)-(j).
\10\ H.R. Rep. No. 105-551, pt. 2, at 35-36.
\11\ 17 U.S.C. 1201(a)(1)(C); see also id. 1201(a)(1)(B)-(D).
\12\ Id. 1201(a)(1)(C).
\13\ Id. 1201(a)(1)(C), (a)(1)(E).
---------------------------------------------------------------------------
For an exemption to be granted through the triennial rulemaking, it
must be established that ``persons who are users of a copyrighted work
are, or are likely to be in the succeeding 3-year period, adversely
affected by the prohibition . . . in their ability to make
noninfringing uses under [title 17] of a particular class of
copyrighted works.'' \14\ In evaluating the evidence, several statutory
factors must be weighed: ``(i) the availability for use of copyrighted
works; (ii) the availability for use of works for nonprofit archival,
preservation, and educational purposes; (iii) the impact that the
prohibition on the circumvention of technological measures applied to
copyrighted works has on criticism, comment, news reporting, teaching,
scholarship, or research; (iv) the effect of circumvention of
technological measures on the market for or value of copyrighted works;
and (v) such other factors as the Librarian considers appropriate.''
\15\
---------------------------------------------------------------------------
\14\ Id. 1201(a)(1)(C).
\15\ Id.
---------------------------------------------------------------------------
II. Overview of the Rulemaking Process
To assess whether the implementation of access controls impairs the
ability of individuals to make noninfringing uses of copyrighted works,
the Copyright Office solicits exemption proposals from the public and
develops a comprehensive administrative record using information
submitted by interested parties.\16\ Based on that record, the Register
provides a written recommendation to the Librarian concerning which
exemptions are warranted based on that record. The recommendation
includes proposed regulatory text for adoption and publication in the
Federal Register.
---------------------------------------------------------------------------
\16\ See H.R. Rep. No. 105-796, at 64 (1998) (Conf. Rep.) (``It
is the intention of the conferees that . . . the Register of
Copyrights will conduct the rulemaking, including providing notice
of the rulemaking, seeking comments from the public, consulting with
the Assistant Secretary for Communications and Information of the
Department of Commerce and any other agencies that are deemed
appropriate, and recommending final regulations in the report to the
Librarian.''); see also H.R. Rep. No. 106-464, at 149 (1999) (Conf.
Rep.) (``[T]he Copyright Office shall conduct the rulemaking under
section 1201(a)(1)(C) . . . .'').
---------------------------------------------------------------------------
The rulemaking process for the eighth triennial proceeding will be
generally the same as the process followed in the seventh proceeding.
This includes the streamlined procedure introduced in the seventh
proceeding through which members of the public may petition for current
temporary exemptions that were granted during the previous rulemaking
to remain in force for an additional three-year period (October 2021-
October 2024).
With this notification of inquiry, the Copyright Office is
initiating the petition phase of the rulemaking, calling for the public
to submit petitions both to renew current exemptions, as well as any
comments in support of or opposition to such petitions, and to propose
new exemptions. This two-track petition process is described below.
After the close of the petition phase, the Office will publish a notice
of proposed rulemaking (``NPRM'') to initiate the next phase of the
rulemaking process, as described below.
Video tutorials explaining section 1201 in general and the
rulemaking process can be found on the Office's 1201 rulemaking web
page at https://www.copyright.gov/1201.
III. Process for Seeking Renewal of Current Exemptions
In the prior rulemaking, the Copyright Office introduced a
streamlined process
[[Page 37401]]
to facilitate the renewal of previously adopted exemptions for which
there was no meaningful opposition.\17\ This process was initiated
shortly after the Office concluded a comprehensive public policy study
of section 1201.\18\ In that study, following careful analysis of
relevant legal principles and noting a broad consensus of stakeholders
supporting an expedited process to consider renewal of such exemptions,
the Office concluded that ``the statute itself requires that exemptions
cannot be renewed automatically, presumptively, or otherwise, without a
fresh determination concerning the next three-year period. . . . [A]
determination must be made specifically for each triennial period.''
\19\ The Office further determined, however, that ``the statutory
language appears to be broad enough to permit determinations to be
based upon evidence drawn from prior proceedings, but only upon a
conclusion that this evidence remains reliable to support granting an
exemption in the current proceeding.'' \20\
---------------------------------------------------------------------------
\17\ 82 FR 29804 (June 30, 2017).
\18\ See generally Section 1201 Study.
\19\ Id. at 142.
\20\ Id. at 143.
---------------------------------------------------------------------------
Those seeking readoption of a current exemption may petition for
renewal by submitting the Copyright Office's required fillable form,
available on the Office's website at https://www.copyright.gov/1201/2021/renewal-petition.pdf. This form is for renewal petitions only. The
Office has a separate form, discussed below, for petitions for new
exemptions.
Scope of Renewal. Renewal may only be sought for current exemptions
as they are currently formulated, without modification. This means that
if a proponent seeks to engage in any activities not currently
permitted by an existing exemption, a petition for a new exemption must
be submitted. Where a petitioner seeks to engage in activities that
expand upon a current exemption, the Office recommends that the
petitioner submit both a petition to renew the current exemption, and,
separately, a petition for a new exemption. In such cases, the petition
for a new exemption need only discuss those issues relevant to the
proposed expansion of the current exemption. If the Office recommends
readoption of the current exemption, then only those discrete aspects
relevant to the expansion will be subject to the more comprehensive
rulemaking procedure described below.
Automatic Reconsideration. If the Office declines to recommend
renewal of a current exemption (as discussed below), the petition to
renew will automatically be treated as a petition for a new exemption,
and will be considered pursuant to the more comprehensive rulemaking
proceeding. If a proponent has petitioned both for renewal and an
expansion, and the Office declines to recommend renewal, the entire
exemption (i.e., the current exemption along with the proposed
expansion) will automatically be considered under the more
comprehensive proceeding.
Petition Form and Contents. The petition to renew is a short form
designed to let proponents identify themselves and the relevant
exemption, and to make certain sworn statements to the Copyright Office
concerning the existence of a continuing need and justification for the
exemption. Use of the Office's prepared form is mandatory, and
petitioners must follow the instructions contained in this notice and
on the petition form. A separate petition form must be submitted for
each current exemption for which renewal is sought. This is required
for reasons of administrability and so it is clear to which exemption
the stated basis for renewal applies. While a single petition may not
encompass more than one current exemption, the same party may submit
multiple petitions.
The petition form has four components:
1. Petitioner identity and contact information. The form asks for
each petitioner (i.e., the individual or entity seeking renewal) to
provide its name and the name of its representative, if any, along with
contact information. Any member of the public capable of making the
sworn declaration discussed below may submit a petition for renewal,
regardless of prior involvement with past rulemakings. Petitioners and/
or their representatives should be reachable through the provided
contact information for the duration of the rulemaking proceeding.
Multiple petitioning parties may jointly file a single petition.
2. Identification of the current exemption that is the subject of
the petition. The form lists all current exemptions granted during the
last rulemaking (codified at 37 CFR 201.40), with a check box next to
each. The exemption for which renewal is sought is to be identified by
marking the appropriate checkbox.
3. Explanation of need for renewal. The petitioner must provide a
brief explanation summarizing the basis for claiming a continuing need
and justification for the exemption. The required showing is meant to
be minimal. The Office anticipates that petitioners will provide a
paragraph or two detailing this information, but there is no page
limit. While it is permissible to attach supporting documentary
evidence as exhibits to the petition, it is not necessary. The Office's
petition form includes an example of what it regards as a sufficient
explanation.
4. Declaration and signature. One of the petitioners named in the
petition must sign a declaration attesting to the continued need for
the exemption and the truth of the explanation provided in support.
Where the petitioner is an entity, the declaration must be signed by an
individual at the organization having appropriate personal knowledge to
make the declaration. The declaration may be signed electronically.
For the attestation to be trustworthy and reliable, it is important
that the petitioner make it based on his or her own personal knowledge
and experience. This requirement should not be burdensome, as a broad
range of individuals have a sufficient level of knowledge and
experience. For example, a blind individual having difficulty finding
and purchasing e-books with appropriate assistive technologies would
have such personal knowledge and experience to make the declaration
with regard to the assistive technology exemption; so would a relevant
employee or volunteer at an organization like the American Foundation
for the Blind, which advocates for the blind, visually impaired, and
print disabled, is familiar with the needs of the community, and is
well-versed specifically in the e-book accessibility issue. It would be
improper, however, for a general member of the public to petition for
renewal if he or she knows nothing more about matters concerning e-book
accessibility other than what he or she might have read in a brief
newspaper article, or simply opposes the use of digital rights
management tools as a matter of general principle.
The declaration also requires affirmation that, to the best of the
petitioner's knowledge, there has not been any material change in the
facts, law, or other circumstances set forth in the prior rulemaking
record (available at https://www.copyright.gov/1201/2018) that
originally demonstrated the need for the selected exemption, such that
renewal of the exemption would not be justified. By ``material
change,'' the Office means a significant change in the underlying
conditions that originally justified the exemption when it was first
granted, such that the appropriateness of continuing the exemption for
another three years based on that original
[[Page 37402]]
justification is called into question. This attestation tells the
Office that the prior rulemaking record from when the current exemption
was originally granted is still ripe and applicable in considering
whether or not the same exemption is appropriate for the subsequent
triennial period. Only after finding the old record to still be germane
can the Office rely upon it in deciding, pursuant to 17 U.S.C.
1201(a)(1)(C), whether to recommend renewal.
C. Comments in Response to a Petition To Renew an Exemption
Any interested party may respond to a petition to renew a current
exemption by submitting comments. While the primary purpose of these
comments is to allow for opposition to renewing the exemption, comments
in support of renewal are also permitted. Although no form is being
provided for such comments, the first page of any responsive comments
must clearly identify which exemption's readoption is being supported
or opposed. While participants may comment on more than one exemption,
a single submission may not address more than one exemption. For
example, a party that wishes to oppose the renewal of both the wireless
device unlocking exemption and the jailbreaking exemption must file
separate comments for each.\21\ The Office acknowledges that this
format may require some parties to repeat certain general information
(e.g., about their organization) across multiple submissions, but the
Office believes that the administrative benefits of creating self-
contained, separate records for each exemption will be worth the modest
amount of added effort involved.
---------------------------------------------------------------------------
\21\ Commenters may, however, respond to multiple petitions to
renew the same exemption in a single submission. For instance, if
the Office receives six petitions in favor of readopting the current
wireless device unlocking exemption, a commenter can file a single
comment that addresses points made in the six petitions. That
comment, however, may not address petitions to readopt the
jailbreaking exemption.
---------------------------------------------------------------------------
Opposition to a renewal petition must be meaningful, such that,
from the evidence provided, it would be reasonable for the Office to
conclude that the prior rulemaking record and any further information
provided in the renewal petition are insufficient to support
recommending renewal of an exemption. For example, a change in case law
might affect whether a particular use is noninfringing, new
technological developments might affect the availability for use of
copyrighted works, or new business models might affect the market for
or value of copyrighted works. Such evidence could cause the Office to
conclude that the prior evidentiary record is too stale to rely upon
for an assessment affecting the subsequent three-year period. The
Office may also consider whether opposition is meaningful only as to
part of a current exemption.
Unsupported conclusory opinion and speculation will not be enough
for the Office to refuse to recommend renewing an exemption it would
have otherwise recommended in the absence of any opposition, or to
subject consideration of this exemption to the more comprehensive
rulemaking procedure.
IV. Process for Seeking New Exemptions
Those seeking to engage in activities not currently permitted by an
existing exemption, including activities that expand upon a current
exemption, may propose a new exemption by filing a petition using the
Copyright Office's required fillable form, available on the Office's
website at https://www.copyright.gov/1201/2021/new-petition.pdf. Use of
the Office's prepared form is mandatory, and petitioners must follow
the instructions contained in this notice and on the petition form. As
in the seventh rulemaking, a separate petition must be filed for each
proposed exemption. The Office anticipates that it will, once again,
receive a significant number of submissions, and requiring separate
submissions for each proposed exemption will help both participants and
the Office keep better track of the record for each proposed exemption.
Although a single petition may not encompass more than one proposed
exemption, the same party may submit multiple petitions.
The petition form has two components:
1. Petitioner identity and contact information. The form asks for
each petitioner (i.e., the individual or entity proposing the
exemption) to provide its name and the name of its representative, if
any, along with contact information. Petitioners and/or their
representatives should be reachable through the provided contact
information for the duration of the rulemaking proceeding. Multiple
petitioning parties may jointly file a single petition.
2. Description of the proposed exemption. At this stage, the Office
is only asking petitioners to briefly explain the nature of the
proposed new or expanded exemption. The information that would be most
helpful to the Office includes the following, to the extent relevant:
(1) The types of copyrighted works that need to be accessed; (2) the
physical media or devices on which the works are stored or the services
through which the works are accessed; (3) the purposes for which the
works need to be accessed; (4) the types of users who want access; and
(5) the barriers that currently exist or which are likely to exist in
the near future preventing these users from obtaining access to the
relevant copyrighted works.
To be clear, petitioners do not need to propose precise regulatory
language or fully define the contours of an exemption class in the
petition. A short, plain statement describing the nature of the
activities the petitioners wish to engage in is sufficient. Although
there is no page limit, the Office anticipates that petitioners will be
able to adequately describe in plain terms the relevant information in
a few sentences. The Office's petition form includes examples of what
it regards as a sufficient description of a requested exemption.
Nor does the Office intend for petitioners to deliver the complete
legal and evidentiary basis for their proposals in the petition, and
specifically requests that petitioners not do so. Rather, the sole
purpose of the petition is to provide the Office with basic information
about the uses of copyrighted works that are adversely affected by the
prohibition on circumvention. The Office will then use that information
to itself formulate categories of potential exemptions, and group
similar proposals into those categories, for purposes of the next, more
substantive, phase of the rulemaking beginning with the publication of
the NPRM.
Indeed, as during the previous two rulemakings, even the NPRM will
not ``put forward precise regulatory language for the proposed classes,
because any specific language for exemptions that the Register
ultimately recommends to the Librarian will necessarily depend on the
full record developed during this rulemaking.'' \22\ Rather, the
proposed categories of exemptions described in the NPRM will
``represent only a starting point for further consideration in the
rulemaking proceeding, and will be subject to further refinement based
on the record.'' \23\ Thus, proponents will have the opportunity to
further refine or expound upon their initial petitions during later
phases of the rulemaking.
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\22\ 82 FR at 29807 (quoting 79 FR 73856, 73859 (Dec. 12,
2014)).
\23\ Id. (internal quotation marks and citation omitted).
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V. Notice of Proposed Rulemaking
Following receipt of all petitions, as well as comments on
petitions for
[[Page 37403]]
renewal, the Office will evaluate the material received and will issue
an NPRM addressing all of the potential exemptions to be considered in
the rulemaking.
The NPRM will set forth which exemptions the Register will
recommend for readoption, along with proposed regulatory language. The
NPRM will also identify any exemptions the Register has declined to
recommend for renewal under the streamlined process, after considering
any opposition received. Those exemptions will instead be subject to
the more comprehensive rulemaking procedure in order to build out the
administrative record. The Register will not at the NPRM stage make a
final determination to reject recommendation of any exemption that
meets the threshold requirements of section 1201(a).\24\
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\24\ See 79 FR 55687, 55692 (Sept. 17, 2014) (explaining that
part of the purpose of providing the information in the petition
phase is so the Office can ``confirm that the threshold requirements
of section 1201(a) can be met''); see also 79 FR at 73859 (noting
that three petitions sought an exemption which could not be granted
as a matter of law and declining to put them forward for comment).
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For current exemptions for which renewal was sought but which were
not recommended for readoption through the streamlined process and all
new exemptions, including proposals to expand current exemptions, the
NPRM will group them appropriately, describe them, and initiate at
least three rounds of public comment. As with the seventh rulemaking,
the Office plans to consolidate or group related and/or overlapping
proposed exemptions where possible to simplify the rulemaking process
and encourage joint participation among parties with common interests
(though such collaboration is not required). As in previous
rulemakings, the exemptions as described in the NPRM will represent
only a starting point for further consideration in the rulemaking
proceeding, and will be subject to further refinement based on the
record. The NPRM will provide guidance regarding specific areas of
legal and factual interest for the Office with respect to each proposed
exemption, and suggest particular types of evidence that participants
may wish to submit for the record. It will also contain additional
instructions and requirements for submitting comments and will detail
the later phases of the rulemaking proceeding--i.e., public hearings,
post-hearing questions, recommendation, and final rule--which will be
similar to those of the seventh rulemaking.
The Office expects to follow a similar timeframe for issuance of
the NPRM and submission of comments that applied during the seventh
rulemaking. In addition, as it did in the previous rulemaking, the
Office will look for opportunities to discuss discrete issues,
including suggestions regarding regulatory language, through its ex
parte meeting process, and to ask additional post-hearing questions,
where necessary to ensure sufficient stakeholder participation.\25\
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\25\ See 82 FR at 29808; U.S. Copyright Office, Ex Parte
Communications, https://www.copyright.gov/1201/2018/ex-parte-communications.html; U.S. Copyright Office, Additional
Correspondence from Participants in Proposed Class 10, https://www.copyright.gov/1201/2018/additional-correspondence/; Section 1201
Study at 150-51.
Dated: June 11, 2020.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2020-12911 Filed 6-19-20; 8:45 am]
BILLING CODE 1410-30-P