Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 37399-37403 [2020-12911]

Download as PDF 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 rule is published. 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. VerDate Sep<11>2014 17:35 Jun 19, 2020 Jkt 250001 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: PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 37399 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 E:\FR\FM\22JNP1.SGM 22JNP1 37400 Federal Register / Vol. 85, No. 120 / Monday, June 22, 2020 / Proposed Rules 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. VerDate Sep<11>2014 17:35 Jun 19, 2020 Jkt 250001 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). PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 (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) . . . .’’). E:\FR\FM\22JNP1.SGM 22JNP1 Federal Register / Vol. 85, No. 120 / Monday, June 22, 2020 / Proposed Rules 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 VerDate Sep<11>2014 17:35 Jun 19, 2020 Jkt 250001 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 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 37401 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 E:\FR\FM\22JNP1.SGM 22JNP1 37402 Federal Register / Vol. 85, No. 120 / Monday, June 22, 2020 / Proposed Rules 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. VerDate Sep<11>2014 17:35 Jun 19, 2020 Jkt 250001 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 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 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 http:// 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]


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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.

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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\
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    \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'').
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    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\
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    \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\
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    \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).
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    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.
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    \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).
---------------------------------------------------------------------------

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