Small Claims Procedures for Library and Archives Opt-Outs and Class Actions, 49273-49278 [2021-18567]
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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules
governments, in the aggregate, or by the
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(adjusted annually for inflation) in any
1 year * * *.’’ Therefore, neither a
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other action is required under UMRA of
1995.
Paperwork Reduction Act of 1995
This action does not impose a new
collection of information under the
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List of Subjects in 21 CFR Part 1308
Administrative practice and
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Reporting and recordkeeping
requirements.
For the reasons set out above, DEA
proposes to further amend 21 CFR part
1308, which we proposed to amend on
August 11, 2021 at 86 FR 43983, as
follows:
49273
PART 1308—SCHEDULES OF
CONTROLLED SUBSTANCES
1. The authority citation for 21 CFR
part 1308 continues to read as follows:
■
Authority: 21 U.S.C. 811, 812, 871(b),
956(b), unless otherwise noted.
2. Amend § 1308.11 by redesignating
paragraph (f)(9) through (f)(11) as (f)(10)
through (f)(12) and adding new
paragraph (f)(9) to read as follows:
■
§ 1308.1
*
Schedule I.
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(f) * * *
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(9) Methiopropamine (N-methyl-1-(thiophen-2-yl)propan-2-amine) ...........................................................................................................
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act-implementation/library-opt-out. If
electronic submission of comments is
not feasible due to lack of access to a
computer and/or the internet, please
contact the Office using the contact
information below for special
instructions.
*
Anne Milgram,
Administrator.
[FR Doc. 2021–18843 Filed 9–1–21; 8:45 am]
BILLING CODE 4410–09–P
FOR FURTHER INFORMATION CONTACT:
LIBRARY OF CONGRESS
Kevin. R. Amer, Acting General Counsel
and Associate Register of Copyrights, by
email at kamer@copyright.gov, or John
R. Riley, Assistant General Counsel, by
email at jril@copyright.gov. Each can be
contacted by telephone at (202) 707–
8350.
Copyright Office
37 CFR Part 223
[Docket No. 2021–4]
Small Claims Procedures for Library
and Archives Opt-Outs and Class
Actions
SUPPLEMENTARY INFORMATION:
U.S. Copyright Office, Library
of Congress.
ACTION: Notice of proposed rulemaking.
AGENCY:
The U.S. Copyright Office is
issuing a notice of proposed rulemaking
regarding the procedures for libraries
and archives to opt out of proceedings
before the Copyright Claims Board
(‘‘CCB’’) and the procedures for a party
before the CCB with respect to a class
action proceeding, under the Copyright
Alternative in Small-Claims
Enforcement Act of 2020. The Office
invites public comments on this
proposed rule.
DATES: Comments on the proposed rule
must be made in writing and received
by the U.S. Copyright Office no later
than 11:59 p.m. EDT on October 4, 2021.
ADDRESSES: For reasons of government
efficiency, the Copyright Office is using
the regulations.gov system for the
submission and posting of public
comments in this proceeding. All
comments are therefore to be submitted
electronically through regulations.gov.
Specific instructions for submitting
comments are available on the
Copyright Office website at https://
www.copyright.gov/rulemaking/case-
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SUMMARY:
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I. Background
The Copyright Alternative in SmallClaims Enforcement (‘‘CASE’’) Act of
2020 1 directs the Copyright Office to
establish the Copyright Claims Board
(‘‘CCB’’ or ‘‘Board’’), a voluntary
tribunal within the Office comprised of
three Copyright Claims Officers who
have the authority to render
determinations on certain copyright
disputes with a low economic value.
This notice of proposed rulemaking is
being issued subsequent to a
notification of inquiry (‘‘NOI’’)
published in the Federal Register on
March 26, 2021, which describes in
detail the legislative background and
regulatory scope of the present
rulemaking proceeding.2 The Office
assumes the reader’s familiarity with
that document.
1 Public Law 116–260, sec. 212, 134 Stat. 1182,
2176 (2020).
2 86 FR 16156, 16161 (Mar. 26, 2021). Comments
received in response to the March 26, 2021 NOI are
available at https://www.regulations.gov/document/
COLC-2021-0001-0001/comment. References to
these comments are by party name (abbreviated
where appropriate), followed by ‘‘Initial NOI
Comments’’ or ‘‘Reply NOI Comments,’’ as
appropriate.
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A. Library and Archives Opt Out
The CASE Act directs the Register of
Copyrights to ‘‘establish regulations
allowing for a library or archives that
does not wish to participate in
proceedings before the Copyright Claims
Board to preemptively opt out of such
proceedings.’’ 3 The Office must also
‘‘compile and maintain a publicly
available list of the libraries and
archives that have successfully opted
out of proceedings.’’ 4 In promulgating
these regulations, the Register cannot
‘‘charge a library or archives a fee to
preemptively opt out of proceedings’’ or
‘‘require a library or archives to renew
a decision to preemptively opt out of
proceedings.’’ 5
For the purposes of this provision, the
statute defines ‘‘library’’ and ‘‘archives’’
as ‘‘any library or archives, respectively,
that qualifies for the limitations on
exclusive rights under section 108 [of
title 17].’’ 6 Section 108 provides
exemptions to libraries and archives
from liability for infringement for
specified uses of copyrighted works.7
For an institution to qualify for those
exemptions, ‘‘the collections of the
library or archives [must be] . . . open
to the public, or . . . available not only
to researchers affiliated with the library
or archives or with the institution of
which it is a part, but also to other
persons doing research in a specialized
3 17
U.S.C. 1506(aa)(1).
at 1506(aa)(2)(B).
5 Id. at 1506(aa)(3)(A).
6 Id. at 1506(aa)(3)(B). The CASE Act’s legislative
history does not discuss the library and archives
opt-out provision. See generally S. Rep. No. 116–
105 (2019); H.R. Rep. No. 116–252 (2019). Note, the
CASE Act’s legislative history cited is for S. 1273,
116th Cong. (2019) and H.R. 2426, 116th Cong.
(2019), the CASE Act of 2019, bills largely identical
to the CASE Act of 2020, with the notable exception
that these earlier bills did not contain the libraries
and archives opt-out provision.
7 17 U.S.C. 108.
4 Id.
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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules
field.’’ 8 The Copyright Act of 1976’s
House Report provides further guidance
as to entities intended to be covered by
section 108:
Under [section 108], a purely commercial
enterprise could not establish a collection of
copyrighted works, call itself a library or
archive, and engage in for-profit reproduction
and distribution of photocopies. Similarly, it
would not be possible for a non-profit
institution, by means of contractual
arrangements with a commercial copying
enterprise, to authorize the enterprise to
carry out copying and distribution functions
that would be exempt if conducted by the
non-profit institution itself.9
The House Report also notes that
there may be factual questions as to
whether libraries or archives ‘‘within
industrial, profitmaking, or proprietary
institutions’’ would qualify for the
section 108 exemptions.10
In the NOI, the Office requested input
on issues related to this opt-out
provision, including whether the Office
should require proof or a certification
that a library or archives qualifies for
the opt-out provision; which entities,
principals, or agents should be allowed
to opt out on behalf of a library or
archives; how the opt-out provision
would apply to library or archives
employees; and various transparency
and functionality considerations related
to publication of the opt-out list.11
1. Proof or Certification Requirement
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The NOI asked ‘‘whether a library or
archive should be required to prove or
certify its qualification for the
limitations on exclusive rights under 17
U.S.C. 108, and thus for the blanket optout provisions, and how to address
circumstances where a library or
archives ceases qualifying.’’ 12 In
comments submitted in response,
parties representing libraries and
archives generally opposed any
requirement that these entities be
required to ‘‘prove’’ that they qualify for
the opt-out provision, although some
supported a provision allowing such an
entity to self-certify that it qualifies.13
University Information Policy Officers
and the University of Michigan Library
stated that libraries and archives should
not be required to certify their eligibility
to submit a preemptive blanket opt-out
notice.14 AALL suggested that a self8 Id.
at 108(a).
Rep. No. 94–1476 at 74.
10 Id.
11 86 FR 16156, 16161 (Mar. 26, 2021).
12 Id.
13 Am. Ass’n of L. Libraries (‘‘AALL’’) NOI Initial
Comments at 1–2; Univ. of Mich. Library NOI Initial
Comments at 4–5.
14 Univ. of Mich. Library NOI Initial Comments at
4–5 (‘‘Libraries and archives that would like to file
9 H.R.
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certification approach ‘‘would meet the
intent of Congress, which created the
preemptive opt out for libraries and
archives to provide an efficient and
streamlined system for these
organizations and to help them avoid
the burdensome administrative
requirements of repeated opt outs.’’ 15
LCA initially stated a library should
only have to ‘‘assert’’ that it qualifies for
the preemptive opt-out,16 but
subsequently suggested that selfcertification would be preferred to a
‘‘legal conclusion by a government
agency that could influence a court’s
assessment concerning a library’s
qualification for section 108.’’ 17
Others suggested that an entity that
preemptively opts out of CCB
proceedings should be required to
submit a formal affidavit or declaration
‘‘certifying its limitations on exclusive
rights under 17 U.S.C 108,’’ 18
potentially under penalty of perjury.19
The Copyright Alliance et al. argued
that Congress granted libraries and
archives ‘‘a unique and narrow
exception’’ to preemptively opt out of
a blanket opt-out notice should be able to do so
without needing to certify or prove their eligibility
for uses authorized by [section] 108.’’); Univ. Infor.
Pol’y Officers NOI Reply Comments at 1 (‘‘libraries
and archives should not be required to certify their
eligibility in order to submit a preemptive blanket
opt-out’’); see also Library Copyright All. (‘‘LCA’’)
NOI Initial Comments at 1 (‘‘it should be sufficient
for the library merely to assert that it meets the
statutory definition’’). But see LCA NOI Reply
Comments at 2 (contemplating a preemptive opt out
by ‘‘certification’’).
15 AALL NOI Initial Comments at 1–2; see also
Anthony Davis Jr. & Katherine Luce NOI Initial
Comments at 2 (‘‘If there is any approval or
certification process, it should not be onerous.’’).
16 LCA NOI Initial Comments at 1.
17 LCA NOI Reply Comments at 2.
18 Ben Vient NOI Initial Comments at 3
(suggesting that ‘‘[t]o the extent that a Library or
Archive wishes to keep its opt-out current with the
CCB, it is the responsibility of the Library or
Archive to have an Affidavit or Declaration with its
current Director on file with the CCB’’).
19 Am. Intell. Prop. L. Ass’n (‘‘AIPLA’’) NOI
Initial Comments at 4; Copyright Alliance, Am.
Photographic Artists, Am. Soc’y for Collective
Rights Licensing, Am. Soc’y of Media
Photographers, The Authors Guild, CreativeFuture,
Digital Media Licensing Ass’n, Graphic Artists
Guild, Indep. Book Pubs. Ass’n, Music Creators N.
Am., Nat’l Music Council of the United States, Nat’l
Press Photographers Ass’n, N. Am. Nature
Photography Ass’n, Prof. Photographers of Am.,
Recording Academy, Screen Actors Guild-Am. Fed.
of Television and Radio Artists, Soc’y of Composers
& Lyricists, Songwriters Guild of Am. & Songwriters
of N. Am. (‘‘Copyright Alliance et al.’’) NOI Initial
Comments at 20; Science Fiction and Fantasy
Writers of Am. NOI Reply Comments at 2 (agreeing
that ‘‘a library or archive should make its
declaration under penalty of perjury’’); see also
Ass’n of Medical Illustrators (‘‘AMI’’) NOI Initial
Comments at 2 (‘‘AMI strongly believes that [library
and archives] proof and certification should be a
requirement in implementing regulations’’ and
‘‘that the pre-emptive opt-out is not available to
companies that are not eligible for Internal Revenue
Code of 501[(c)(3)] treatment.’’).
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CCB proceedings, but in doing so
‘‘expressly limited the ability to blanket
opt out to [libraries or archives] that
qualify for the limitations on exclusive
rights under section 108.’’ 20 They
voiced concern that ‘‘[t]o allow entities
to ‘self-certify’ would be to open the
blanket opt out to any entity claiming to
be a ‘library’ or ‘archive’ regardless of
whether the entity rightfully qualifies
under the law.’’ 21
AIPLA, AMI, and Copyright Alliance
et al. proposed creating a Copyright
Office or CCB procedure, separate from
a CCB infringement proceeding, to
review the qualifying status of a library
or archives for the preemptive opt-out.22
AIPLA recommended that ‘‘anyone,
including members of the public not
bringing a CCB claim, should be
permitted to challenge whether a
Library or Archive qualifies [for the
preemptive opt-out].’’ 23 Both AIPLA
and the Copyright Alliance et al.
proposed that the Office could charge a
fee for its review, with AIPLA
suggesting that the fee would be ‘‘paid
by the challenger if the CCB finds the
Library or Archive still qualifies, and by
the Library or Archive if it is found not
to comply.’’ 24 Finally, the Copyright
Alliance et al. proposed an additional
mechanism to address any circumstance
where a federal court ‘‘determines that
[an] entity does not qualify for the
section 108 exceptions.’’ 25 In such a
case, the court or the entity would be
directed to notify the Copyright Office
of that determination, so that it can
‘‘reconsider the blanket opt-out after
giving the [library or archive] an
opportunity to defend its status.’’ 26
20 Copyright Alliance et al. NOI Reply Comments
at 12–13.
21 Id.
22 AIPLA NOI Initial Comments at 4 (‘‘If the CCB
determines that a Library or Archive does not
qualify, the Library or Archive should be permitted
to appeal the decision for a fee.’’); Copyright
Alliance et al. NOI Initial Comments at 20 (same);
see AMI NOI Initial Comments at 2 (‘‘Library/
Archive opt-outs should be open to public comment
and granted for 2-year terms then must reapply
(using the 1201 exemption to prohibition on of
circumvention process as a potential model).’’);
Univ. of Mich. Library NOI Initial Comments at 4–
5 (‘‘If a challenge is later brought concerning the
library or archive’s status, the library or archive
should be required to attest that they meet the
requirements of [section] 108(a)(2).’’).
23 AIPLA NOI Initial Comments at 4.
24 Id.; Copyright Alliance et al. NOI Initial
Comments at 20 (‘‘If it is determined that a [library
or archives] does not qualify, the [library or
archives] should be permitted to request that the
Board reconsider the decision for a fee (the statute
only precludes a fee to apply not to request
reconsideration when the application is denied).’’).
25 Copyright Alliance et al. NOI Initial Comments
at 20; see Copyright Alliance et al. NOI Reply
Comments at 14–15 (same); AIPLA NOI Initial
Comments at 4 (same).
26 Copyright Alliance et al. NOI Initial Comments
at 20; see Copyright Alliance et al. NOI Reply
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LCA did not support such a
proceeding and suggested that, if a
claimant wishes to bring a claim against
a library or archives that it believes is
ineligible for the preemptive opt out, ‘‘it
can file a claim against the library [or
archives] with the CCB, indicating that
the library [or archives] does not meet
the [statutory] requirements.’’ 27 At that
point, the CCB would review the claim
to determine ‘‘[i]f the claimant has pled
facts sufficient to indicate that the
library no longer is eligible for the
preemptive opt-out,’’ and then the
library or archives would be served with
a notice and given the opportunity to
either ‘‘demonstrate that it still meets
the requirements of section 108(a)(2),
and thus that its preemptive opt-out is
still valid,’’ or ‘‘opt out of that specific
proceeding before the CCB.’’ 28
While taking no position on any
process for a library or archives to
‘‘claim status . . . for purposes of a
blanket opt-out,’’ the Motion Picture
Association (‘‘MPA’’), Recording
Industry Association of America
(‘‘RIAA’’), and Software and Information
Industry Association (‘‘SIIA’’) asked that
the Office make clear that ‘‘an entity’s
status as a library or archive for the
purposes of opting out under CCB does
not constitute a determination of that
entity’s status, and may not be cited as
such, in any other context, including in
any federal court litigation in which that
entity is a party.’’ 29
The Office appreciates parties’
comments on this issue and proposes
that any library or archives that wishes
to take advantage of the statutory
preemptive opt-out option must submit
a self-certification that it ‘‘qualifies for
the limitations on exclusive rights under
section 108.’’ 30 In doing so, the Office
is seeking to balance the statutory goals
of ensuring that only libraries and
archives are eligible for a preemptive
opt-out, but also that any such entities
are not overly burdened in effecting that
election. The proposed rule also
requires that any library or archives that
Comments at 14–15 (same); AIPLA NOI Initial
Comments at 4 (same).
27 LCA NOI Reply Comments at 2.
28 Id.
29 MPA, RIAA & SIIA NOI Reply Comments at 10.
LCA agreed that any status determination by the
CCB should not be treated as conclusive in other
contexts. LCA NOI Reply Comments at 1–2.
30 17 U.S.C. 1506(aa)(4); see also Copyright
Alliance et al. NOI Reply Comments at 13 n.7
(opposing ‘‘comments suggesting that the CCB
adopt a definition of ‘libraries and archives’ other
than the definition articulated in the statute’’). But
see Authors Alliance NOI Initial Comments at 5–
6 (‘‘[W]e support a broad definition of ‘libraries and
archives’ which encompasses public libraries,
academic libraries, and other institutions serving
the essential functions of preservation and sharing
of knowledge and culture.’’).
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has been found by a federal court not to
qualify for the section 108 exemptions
report this information to the CCB.
The Office will accept the facts stated
in the opt-out submission unless they
are implausible or conflict with sources
of information that are known to the
Office or the general public.31 If the
Office believes, based on such
information, that the entity does not
qualify, it will communicate to the
submitter that it does not intend to add
the entity to the preemptive opt-out list,
or that it intends to remove the entity
from the list. The Office will then allow
the submitter to provide evidence
supporting the entity’s eligibility for the
exemption. If, after reviewing the
submitter’s response, the Office
determines that the entity does not
qualify, the entity will not be added to,
or will be removed from, the opt-out
list. If the Office determines that the
entity does qualify, it will be added to,
or remain on, the opt-out list. Either
determination will constitute final
agency action under the Administrative
Procedure Act.32
With respect to the requests to allow
third-party challenges to an institution’s
eligibility for the preemptive opt-out,
the Office does not believe it is
necessary to establish a procedure for
such objections that is separate from the
CCB’s adjudication of individual cases.
Such a process would seem an
inefficient use of CCB resources, as it
could require the Board to resolve
disputes over an institution’s status
before any claim involving that entity
has been made. As LCA notes, a party
seeking to bring a claim against a library
or archives that it believes is improperly
on the opt-out list may file the claim
with the CCB and include the basis for
that conclusion in its statement of
material facts. If, during its review of the
claim for compliance, the CCB
determines that the claimant has alleged
facts sufficient to support the
conclusion that the entity is ineligible,
and the claim is otherwise compliant,
the claimant will be instructed to
proceed with service on the respondent.
The respondent may then include in its
response any information to
demonstrate that it is in fact eligible, or
may simply opt out of that specific
proceeding. This process is reflected in
the proposed rule.
31 See
U.S. Copyright Office, Compendium of U.S.
Copyright Office Practices sec. 309.2 (3d ed. 2021)
(noting the Office’s similar approach regarding
registration materials).
32 5 U.S.C. 704 (‘‘[F]inal agency action for which
there is no other adequate remedy in a court [is]
subject to judicial review.’’).
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2. Persons Allowed To Opt Out on
Behalf of a Library or Archives
The NOI noted the ‘‘prevalence of
libraries and archives being located
within larger entities, including but not
limited to colleges and universities or
municipalities,’’ and asked for
comments ‘‘addressing which entities,
principals, or agents may opt out on
behalf of a library or archive, as well as
any associated certifications.’’ 33 In
response, LCA suggested that Office
regulations ‘‘should allow the
preemptive opt-out to be exercised by
any person with the authority to take
legally binding actions on behalf of the
library in connection to litigation.’’ 34 In
its view, ‘‘[b]ecause some institutions
have many different libraries, an official
with the appropriate authority should
be able in a single process to exercise a
preemptive opt-out with respect to all
the eligible libraries within the
institution.’’ 35 Other commenters
suggested that those with the authority
to opt out on behalf of a library or
archives could include a university
agent (e.g., a dean or associate dean) or
a law firm.36 In contrast, AMI contended
that ‘‘a blanket, institutional opt-out
should not be permitted’’ for
institutions or entities containing
multiple archives.37 It argued that
‘‘[o]therwise, a complainant could have
wasted money and time on bringing an
action only to have it thrown out
because of ignorance of institutional
affiliation of the infringer.’’ 38
The Copyright Alliance et al.
suggested that ‘‘[w]here a [library or
archives] is a part of a larger entity or
municipality, such that the [library or
archives] itself does not have standing
to act as a Claimant or Counterclaimant
on its own, only the larger entity or
municipality should be allowed to
request the blanket opt-out on behalf of
the [library or archives].’’ 39 They
reasoned that ‘‘[b]ecause the blanket
opt-out could have major implications
on an entity’s exposure to liability, only
the larger entity should be allowed to
make that decision.’’ 40
The Office generally agrees with
LCA’s suggestion that the authority to
exercise the preemptive opt-out option
should belong to any person with the
authority to take legally binding actions
33 86
FR at 16161.
NOI Initial Comments at 2.
34 LCA
35 Id.
36 AALL NOI Initial Comments at 2; Anthony
Davis Jr. & Katherine Luce NOI Initial Comments at
2.
37 AMI NOI Initial Comments at 2.
38 Id.
39 Copyright Alliance et al. NOI Initial Comments
at 20.
40 Id. at 20–21.
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on behalf of the library or archives in
connection with litigation. The
proposed rule incorporates this
approach. Further, the Office does not
see a reason to restrict the ability of an
institution to submit a preemptive optout election for multiple libraries or
archives that are the part of the same
institution in a ‘‘blanket’’ fashion, as the
use of separate submissions would be
inefficient. Any preemptive opt-out
election involving multiple libraries or
archives, however, should separately
identify the individual libraries or
archives to be covered by the
submission, as opposed to providing a
collective description such as ‘‘all
university libraries.’’
3. Transparency and Functionality
Considerations
The NOI also asked for input ‘‘related
to transparency and functionality
considerations with respect to its
publication of the list of libraries and
archives that have opted out.’’ 41
Commenters generally agreed that the
list of libraries and archives that have
preemptively opted out of participating
in CCB proceedings should be made
publicly available online.42 The Office
agrees, and accordingly the list will be
maintained on the Board’s website.
4. Application of the Opt-Out Provision
to Persons in the Course of Their
Employment
Finally, the NOI asked parties to
comment on whether the Office ‘‘should
include a regulatory provision that
specifies that this opt out extends to
employees operating in the course of
their employment.’’ 43 Commenters
representing libraries and archives
supported such a rule, while others,
including AIPLA and the Copyright
Alliance et al., were opposed.
Several library representatives,
including AALL, LCA, the University of
Illinois Library, and the University of
Michigan Library, advocated for
regulatory language specifying that the
preemptive opt-out extends to
employees operating in the course of
their employment.44 As the University
41 86
FR at 16161.
NOI Initial Comments at 5; Copyright
Alliance et al. NOI Initial Comments at 21; LCA
NOI Initial Comments at 2.
43 86 FR at 16161.
44 LCA NOI Reply Comments at 3; Univ.
Information Policy Officers NOI Reply Comments at
1; AALL NOI Initial Comments at 2; Anonymous II
NOI Initial Comments at 1; Anthony Davis Jr. &
Katherine Luce NOI Initial Comments at 2; LCA
NOI Initial Comments at 3; Univ. of Ill. Library NOI
Initial Comments at 2; Univ. of Mich. Library NOI
Initial Comments at 5; see also Science Fiction and
Fantasy Writers of Am. NOI Reply Comments at 2
(noting ‘‘no major objection to such a provision, so
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42 AIPLA
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of Illinois Library argued, ‘‘[t]o provide
a blanket opt out provision to libraries
yet potentially hold employees liable
when working within the scope of their
employment would be to eviscerate the
opt out provision as the work of
libraries is conducted by its employees,
not by the entity itself.’’ 45 AALL and
the University of Illinois Library also
argued that such a rule would be
consistent with section 108,46 which
extends the statutory exemption for
libraries and archives to ‘‘any of [the
library or archives’] employees acting
within the scope of their
employment.’’ 47
In further support of this approach,
LCA argued that Copyright Claims
Attorneys, who are required to review
new claims to ensure that they comply
with the statute and regulations, would
be able ‘‘to determine from the claim’s
statement of material facts whether the
respondent is a library employee acting
with the scope of her employment.’’ 48 It
argued that such a determination would
be no less burdensome ‘‘than to
determine whether the respondent is a
library that has preemptively opted-out
of CCB proceedings, a Federal or State
governmental entity,’’ or ‘‘a person or
entity residing outside of the United
States’’—all of which have to be
determined by the CCB before a
claimant is allowed to proceed with a
claim.49 LCA also contended that ‘‘[a]n
employee’s failure to opt out inevitably
would result in the library becoming
enmeshed in the CCB proceeding on
behalf of the employee, contrary to
Congressional intent.’’ 50
The Copyright Alliance et al. opposed
extending the libraries and archives optout provision to employees acting
within the scope of their employment,
arguing that ‘‘[w]hether an employee is
operating within the course/scope of
their employment is a question of fact
that would need to be determined by the
CCB.’’ 51 In their view, ‘‘[i]f a claim is
brought against an individual, and it is
determined that the claim should have
been brought against a [library or
archive] that has elected to blanket optout, the claim should be dismissed.’’ 52
long as care is taken to ensure that employees are
in fact acting within the proper scope of their
employment and within the limits of 17 U.S.C.
108’’).
45 Univ. of Ill. Library NOI Initial Comments at 2.
46 AALL NOI Initial Comments at 2 (citing 17
U.S.C. 108); Univ. of Ill. Library NOI Initial
Comments at 2 (citing 17 U.S.C. 108(a)).
47 17 U.S.C. 108(a).
48 LCA NOI Reply Comments at 3.
49 Id. (citing 17 U.S.C. 1504(d)(3)–(4)).
50 Id.
51 Copyright Alliance et al. NOI Initial Comments
at 21.
52 Id.
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AIPLA added that ‘‘[d]eciding whether
to extend a blanket opt out to employees
would require the CCB to determine ex
parte whether employees were
operating in the course of their
employment,’’ which would
‘‘undermine the adversarial process and
increase the burden on the CCB.’’ 53
Both AIPLA and the Copyright Alliance
et al. noted that individuals who are
potentially acting within the scope of
their employment have the option to opt
out of any CCB proceeding
themselves.54 AMI similarly stated that
it did not support regulations that
would ‘‘shield [a library or archive]
employee from liability for actions taken
in the course of employment, but not
authorized or otherwise sanctioned by
the employer [who opted out of the CCB
process].’’ 55
The Office appreciates libraries’ and
archives’ concerns that excluding
individual employees from the blanket
opt-out could hamper the effectiveness
of that option by allowing parties to
assert claims against such individuals
when claims against the institution are
unavailable. Such a rule, however,
seemingly appears inconsistent with
principles of agency law and would
require a broad interpretation of the
statutory text. While it is generally true
that an employer may be liable for the
actions of employees taken within the
scope of their employment,56 the Office
does not understand that principle to
mean that suits against the employee
individually are precluded in such
circumstances. Rather, as a general rule,
‘‘[u]nless an applicable statute provides
otherwise, an actor remains subject to
liability although the actor acts as an
agent or an employee, with actual or
apparent authority, or within the scope
of employment.’’ 57 Moreover, the CASE
Act expressly offers the preemptive optout option to ‘‘a library or archives,’’ but
does not mention employees.58 The
53 AIPLA
NOI Initial Comments at 5.
at 5; Copyright Alliance et al. NOI Reply
Comments at 14.
55 AMI NOI Initial Comments at 2.
56 See, e.g., Alan Latman & William S. Tager,
Study No. 25: Liability of Innocent Infringers of
Copyrights 145 (1958) (‘‘The normal agency rule
that a[n] [employer] is liable for [the employee’s]
wrongful acts committed within the scope of
employment has been considered applicable to
copyright infringement.’’), reprinted in Subcomm.
on Patents, Trademarks, and Copyrights, S. Comm.
on the Judiciary, 86th Cong., Copyright Law
Revision: Studies 22–25 135 (Comm. Print 1960);
see also, e.g., Lowry’s Reports, Inc. v. Legg Mason,
Inc., 271 F. Supp. 2d 737, 746 (D. Md. 2003)
(holding that employer was potentially liable for the
infringing conduct of its employee-agent).
57 Restatement (Third) of Agency sec. 7.01 (Am.
Law. Inst. 2006).
58 17 U.S.C. 1506(aa)(1).
54 Id.
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proposed rule accordingly does not
include such a provision.
Some commenters further requested
that the Office promulgate a regulation
expanding the statutory opt-out
provision to a library’s larger
institution,59 such as a university, or to
that larger institution’s students, staff,
adjunct, and faculty.60 For the same
reasons just noted, however, such a rule
is inconsistent with the statute’s express
limitation of this option to libraries and
archives.61
5. Other Proposals
Commenters asked the Office to
promulgate certain additional rules
related to participation by libraries and
archives. First, some commenters
requested that the Office consider
including regulations allowing a library
or archives to revoke or rescind its
preemptive opt-out election.62 As LCA
explained, ‘‘[a] library should not
forever be excluded from the CCB
process because it exercises a
preemptive opt-out at one point in
time.’’ 63 The Copyright Alliance et al.
opposed this proposal.64 As an
alternative, they suggested that the
Office could create a ‘‘two-tiered
system,’’ with the first tier allowing for
permanent opt outs and the second tier
requiring recertification of the
institution’s opt-out decision ‘‘on an
annual basis.’’ 65 In their view, this
approach ‘‘would have the additional
benefit of acting as a routine ‘audit’ to
ensure that [libraries or archives] taking
advantage of the blanket opt-out
continue to meet the qualifications for
section 108.’’ 66
The Office generally agrees that a
library’s or archives’ opt-out election
should not be irreversible. Indeed,
permitting such an institution to rescind
an opt-out would help advance the
statutory goal of encouraging
participation in the CCB system. The
proposed rule accordingly provides that
a library or archives may rescind a
preemptive opt-out election by
59 LCA
NOI Initial Comments at 3.
II NOI Initial Comments at 1.
61 17 U.S.C. 1506(aa)(1); see also 86 FR at 16161
(‘‘Congress did not establish a blanket opt-out for
any entities other than libraries and archives, and
in that case, it did so expressly by statute. This
suggests that the Office lacks authority to adopt
other blanket opt-outs by regulation.’’ (citing
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 107 (2012); Lindh
v. Murphy, 521 U.S. 320, 330 (1997))).
62 Anthony Davis Jr. & Katherine Luce NOI Initial
Comments at 2; CCIA & IA NOI Initial Comments
at 4; LCA NOI Initial Comments at 3.
63 LCA NOI Initial Comments at 3.
64 Copyright Alliance et al. NOI Reply Comments
at 12–13.
65 Id. at 13.
66 Id.
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providing written notification of such
intent to the CCB. To avoid potential
abuses and to limit the impact on CCB
resources, the proposed rule provides
that an institution may make no more
than one such rescission per calendar
year.
In addition, two commenters
proposed rules to address errors and
abuses involving the opt-out process.
LCA urged the Office to establish
procedures to address circumstances
where a Copyright Claims Attorney
erroneously allows a claim to proceed
against a library.67 Verizon proposed
regulations to ‘‘deter those who
repeatedly abuse the opt-out process,’’
including the ability ‘‘to impose
monetary fines on bad faith filers’’ and
‘‘the ability to ban such parties from
future use of the CCB process.’’ 68 While
these suggestions are related to the
preemptive opt-out provisions for
libraries and archives, they are more
appropriately considered in future
CASE Act rulemakings addressing errors
in and abuses of CCB procedures
generally.
B. Class Actions
A CCB proceeding does not have any
effect on a class action proceeding in
federal district court.69 If, however, a
party in an active CCB proceeding
‘‘receives notice of a pending or putative
class action, arising out of the same
transaction or occurrence’’ as the claim
at issue before the CCB, the CASE Act
provides that party with two choices.70
The party must either ‘‘opt out of the
class action, in accordance with
regulations established by the Register,’’
or seek dismissal of the CCB proceeding
in writing.71 In the NOI, the Office
asked for public comment on ‘‘any
issues that should be considered
relating to regulations governing
dismissal or opt-outs related to class
action proceedings, including specific
proposed regulatory language.’’ 72
Two parties provided comments on
this issue. The Copyright Alliance et al.
suggested that ‘‘[i]f a party receives
notice of a class action and wishes to
dismiss the case before the CCB, the
regulations should require that party to
notify the CCB and the other parties to
the case within 10 business days
following receipt of the class action
notice.’’ 73 The MPA, RIAA, and SIAA
did not suggest a specific time period,
67 LCA
NOI Reply Comments at 4.
NOI Initial Comments at 3–4.
69 17 U.S.C. 1507(b).
70 Id. at 1506(q)(3).
71 Id. at 1507(b)(2); 1506(q)(3).
72 86 FR at 16161.
73 Copyright Alliance et al. NOI Initial Comments
at 21.
68 Verizon
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49277
but suggested that ‘‘a party learning of
a class action during the pendency of a
proceeding and wishing to exercise a
class-action opt-out should be required
to do so promptly after learning of the
class action.’’ 74 The MPA, RIAA, and
SIIA also voiced concerns that a delayed
opt out decision ‘‘risks wasting effort
and expense by the litigants and the
CCB, and the amount of wasted effort
and expense increases with the passage
of time.’’ 75
The Office has proposed a fourteenday period for a party to either opt out
of the class action or to seek dismissal
of the CCB proceeding. If a party
chooses to opt out of the class action, he
or she must file written notice of that
intent with the CCB within fourteen
days after filing such notice with the
court. The proposed rule authorizes the
Board to extend these time periods for
good cause.
List of Subjects in 37 CFR Part 223
Copyright, Claims.
Proposed Regulations
For the reasons set forth in the
preamble, the Copyright Office proposes
to amend Chapter II, Subchapter B, of
title 37 Code of Federal Regulations to
read as follows:
SUBCHAPTER B—COPYRIGHT CLAIMS
BOARD AND PROCEDURES
1. The heading of Subchapter B is
revised to read as set forth above.
■ 2. Part 223 is added to read as follows:
■
PART 223—OPT-OUT PROVISIONS
Sec.
223.1 [Reserved]
223.2 Libraries and archives opt-out
procedures.
223.3 Class action opt-out procedures.
Authority: 17 U.S.C. 702, 1510.
§ 223.1
[Reserved]
§ 223.2 Libraries and archives opt-out
procedures.
(a) Opt-out notification. (1) A library
or archives that wishes to preemptively
opt out of participating in Copyright
Claims Board proceedings under 17
U.S.C. 1506(aa) may do so by submitting
written notification to the Copyright
Claims Board. The notification shall
include a signed certification under
penalty of perjury that the library or
archives qualifies for the limitations on
exclusive rights under section 108 of
title 17.
(2) The submission described in
paragraph (a)(1) of this section shall list
the name and physical address of each
74 MPA,
RIAA & SIIA NOI Initial Comments at 9.
75 Id.
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Federal Register / Vol. 86, No. 168 / Thursday, September 2, 2021 / Proposed Rules
library or archives to which the
preemptive opt out applies and shall be
signed by a person with the authority
described in paragraph (c) of this
section. The library or archives must
also provide a point of contact for future
correspondence, including phone
number, mailing address, and email
address and shall notify the Copyright
Claims Board if this information
changes.
(3) The Copyright Claims Board will
accept the facts stated in the submission
described in paragraphs (a)(1) and (2) of
this section, unless they are implausible
or conflict with sources of information
that are known to the Copyright Claims
Board or the general public.
(4) If a federal court determines that
an entity described in paragraph (a)(1)
of this section does not qualify for the
limitations on exclusive rights under
section 108 of title 17, that entity must
inform the Copyright Claims Board of
that determination and submit a copy of
the relevant order or opinion, if any,
within fourteen days after the
determination is issued.
(5) A library or archives may rescind
its preemptive opt-out election under
this section, such that it may participate
in Copyright Claims Board proceedings,
by providing written notification to the
Copyright Claims Board in accordance
with such instructions as are provided
on the Copyright Claims Board website.
A library or archives may submit no
more than one such rescission
notification per calendar year.
(6) The notification described in
paragraph (a)(1) of this section shall be
submitted to the Copyright Claims
Board in accordance with such
instructions as are provided on the
Copyright Claims Board website.
(b) Review of eligibility. (1) The
Copyright Claims Board will maintain
on its website a public list of libraries
and archives that have preemptively
opted out of Copyright Claims Board
proceedings pursuant to paragraph (a) of
this section. If the Register determines
pursuant to paragraph (a)(3) of this
section that an entity does not qualify
for the preemptive opt-out provision,
the Office will communicate to the
point of contact described in paragraph
(a)(2) of this section that it does not
intend to add the entity to the public
list, or that it intends to remove the
entity from that list, and will allow the
entity to provide evidence supporting
its qualification for the exemption
within thirty days. If the entity fails to
respond, or if, after reviewing the
entity’s response, the Register
determines that the entity does not
qualify for the limitations on exclusive
rights under section 108 of title 17, the
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entity will be not be added to, or will
be removed from, the public list. If the
Register determines that the entity
qualifies for the limitations on exclusive
rights under section 108 of title 17, the
entity will be added to, or remain on,
the libraries and archives preemptive
opt-out list. This provision does not
limit the Office’s ability to request
additional information from the point of
contact listed pursuant to paragraph
(a)(2) of this section.
(2) A party seeking to assert a claim
under this section against a library or
archives that it believes is improperly
included on the public list described in
paragraph (b)(1) of this section may file
the claim with the Copyright Claims
Board pursuant to 17 U.S.C. 1506(e) and
applicable regulations. The claimant
must include in its statement of material
facts allegations sufficient to support
that belief. If the Copyright Claims
Board determines, as part of its review
of the claim pursuant to 17 U.S.C.
1506(f), that the claimant has alleged
facts sufficient to support the
conclusion that the library or archives is
ineligible for the preemptive opt-out,
and the claim is otherwise complaint,
the claimant will be instructed to
proceed with service of the claim. The
respondent may include in its response
any factual statements in support of its
eligibility.
(3) Any determination made under
paragraph (b)(1) of this section shall
constitute final agency action under 5
U.S.C. 704.
(c) Authority. Any person with the
authority to take legally binding actions
on behalf of a library or archives in
connection with litigation may submit a
notification under paragraph (a) of this
section.
(d) Multiple libraries and archives in
a single submission. A notification
under paragraph (a) of this section may
include multiple libraries or archives in
the same submission if each library or
archives is listed separately in the
submission and the submitter has the
authority described under paragraph (c)
of this section to submit the notification
on behalf of all libraries and archives
included in the submission.
§ 223.3
Class action opt-out procedures.
(a) Opt-out or dismissal procedures.
Any party to an active proceeding before
the Copyright Claims Board who
receives notice of a pending or putative
class action, arising out of the same
transaction or occurrence as the
proceeding before the Copyright Claims
Board, in which the party is a class
member, shall either opt out of the class
action or seek written dismissal of the
proceeding before Copyright Claims
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Sfmt 4702
Board within fourteen days of receiving
notice of the pending class action. If a
party seeks written dismissal of the
proceeding before Copyright Claims
Board, upon notice to all claimants and
counterclaimants, the Copyright Claims
Board shall dismiss the proceeding
without prejudice.
(b) Filing requirement. A copy of the
notice indicating a party’s intent to opt
out of a class action proceeding must be
filed with the Copyright Claims Board
within fourteen days after the filing of
the notice with the court.
(c) Timing. The time periods provided
in paragraphs (a) and (b) of this section
may be extended by the Copyright
Claims Board for good cause shown.
Dated: August 24, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the
U.S. Copyright Office.
[FR Doc. 2021–18567 Filed 9–1–21; 8:45 am]
BILLING CODE 1410–30–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R10–OAR–2020–0648; FRL–8787–01–
R10]
Air Plan Approval; AK; Eagle River
Second 10-Year PM10 Limited
Maintenance Plan
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
the Eagle River, Alaska (AK) limited
maintenance plan (LMP) submitted on
November 10, 2020, by the Alaska
Department of Environmental
Conservation (ADEC or ‘‘the State’’).
This plan addresses the second 10-year
maintenance period after redesignation
for particulate matter with an
aerodynamic diameter less than or equal
to a nominal 10 micrometers (PM10). An
LMP is used to meet Clean Air Act
(CAA) requirements for formerly
designated nonattainment areas that
meet certain qualification criteria. The
EPA is proposing to determine that
Alaska’s submittal meets the CAA
requirements. The plan relies upon
control measures contained in the first
10-year maintenance plan and the
determination that the Eagle River area
currently monitors PM10 levels well
below the PM10 National Ambient Air
Quality Standards (NAAQS or ‘‘the
standard’’).
SUMMARY:
E:\FR\FM\02SEP1.SGM
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]]>Agencies
[Federal Register Volume 86, Number 168 (Thursday, September 2, 2021)]
[Proposed Rules]
[Pages 49273-49278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18567]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 223
[Docket No. 2021-4]
Small Claims Procedures for Library and Archives Opt-Outs and
Class Actions
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The U.S. Copyright Office is issuing a notice of proposed
rulemaking regarding the procedures for libraries and archives to opt
out of proceedings before the Copyright Claims Board (``CCB'') and the
procedures for a party before the CCB with respect to a class action
proceeding, under the Copyright Alternative in Small-Claims Enforcement
Act of 2020. The Office invites public comments on this proposed rule.
DATES: Comments on the proposed rule must be made in writing and
received by the U.S. Copyright Office no later than 11:59 p.m. EDT on
October 4, 2021.
ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the regulations.gov system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through regulations.gov. Specific instructions
for submitting comments are available on the Copyright Office website
at https://www.copyright.gov/rulemaking/case-act-implementation/library-opt-out. If electronic submission of comments is not feasible
due to lack of access to a computer and/or the internet, please contact
the Office using the contact information below for special
instructions.
FOR FURTHER INFORMATION CONTACT: Kevin. R. Amer, Acting General Counsel
and Associate Register of Copyrights, by email at [email protected],
or John R. Riley, Assistant General Counsel, by email at
[email protected]. Each can be contacted by telephone at (202) 707-
8350.
SUPPLEMENTARY INFORMATION:
I. Background
The Copyright Alternative in Small-Claims Enforcement (``CASE'')
Act of 2020 \1\ directs the Copyright Office to establish the Copyright
Claims Board (``CCB'' or ``Board''), a voluntary tribunal within the
Office comprised of three Copyright Claims Officers who have the
authority to render determinations on certain copyright disputes with a
low economic value. This notice of proposed rulemaking is being issued
subsequent to a notification of inquiry (``NOI'') published in the
Federal Register on March 26, 2021, which describes in detail the
legislative background and regulatory scope of the present rulemaking
proceeding.\2\ The Office assumes the reader's familiarity with that
document.
---------------------------------------------------------------------------
\1\ Public Law 116-260, sec. 212, 134 Stat. 1182, 2176 (2020).
\2\ 86 FR 16156, 16161 (Mar. 26, 2021). Comments received in
response to the March 26, 2021 NOI are available at https://www.regulations.gov/document/COLC-2021-0001-0001/comment. References
to these comments are by party name (abbreviated where appropriate),
followed by ``Initial NOI Comments'' or ``Reply NOI Comments,'' as
appropriate.
---------------------------------------------------------------------------
A. Library and Archives Opt Out
The CASE Act directs the Register of Copyrights to ``establish
regulations allowing for a library or archives that does not wish to
participate in proceedings before the Copyright Claims Board to
preemptively opt out of such proceedings.'' \3\ The Office must also
``compile and maintain a publicly available list of the libraries and
archives that have successfully opted out of proceedings.'' \4\ In
promulgating these regulations, the Register cannot ``charge a library
or archives a fee to preemptively opt out of proceedings'' or ``require
a library or archives to renew a decision to preemptively opt out of
proceedings.'' \5\
---------------------------------------------------------------------------
\3\ 17 U.S.C. 1506(aa)(1).
\4\ Id. at 1506(aa)(2)(B).
\5\ Id. at 1506(aa)(3)(A).
---------------------------------------------------------------------------
For the purposes of this provision, the statute defines ``library''
and ``archives'' as ``any library or archives, respectively, that
qualifies for the limitations on exclusive rights under section 108 [of
title 17].'' \6\ Section 108 provides exemptions to libraries and
archives from liability for infringement for specified uses of
copyrighted works.\7\ For an institution to qualify for those
exemptions, ``the collections of the library or archives [must be] . .
. open to the public, or . . . available not only to researchers
affiliated with the library or archives or with the institution of
which it is a part, but also to other persons doing research in a
specialized
[[Page 49274]]
field.'' \8\ The Copyright Act of 1976's House Report provides further
guidance as to entities intended to be covered by section 108:
---------------------------------------------------------------------------
\6\ Id. at 1506(aa)(3)(B). The CASE Act's legislative history
does not discuss the library and archives opt-out provision. See
generally S. Rep. No. 116-105 (2019); H.R. Rep. No. 116-252 (2019).
Note, the CASE Act's legislative history cited is for S. 1273, 116th
Cong. (2019) and H.R. 2426, 116th Cong. (2019), the CASE Act of
2019, bills largely identical to the CASE Act of 2020, with the
notable exception that these earlier bills did not contain the
libraries and archives opt-out provision.
\7\ 17 U.S.C. 108.
\8\ Id. at 108(a).
Under [section 108], a purely commercial enterprise could not
establish a collection of copyrighted works, call itself a library
or archive, and engage in for-profit reproduction and distribution
of photocopies. Similarly, it would not be possible for a non-profit
institution, by means of contractual arrangements with a commercial
copying enterprise, to authorize the enterprise to carry out copying
and distribution functions that would be exempt if conducted by the
non-profit institution itself.\9\
---------------------------------------------------------------------------
\9\ H.R. Rep. No. 94-1476 at 74.
The House Report also notes that there may be factual questions as
to whether libraries or archives ``within industrial, profitmaking, or
proprietary institutions'' would qualify for the section 108
exemptions.\10\
---------------------------------------------------------------------------
\10\ Id.
---------------------------------------------------------------------------
In the NOI, the Office requested input on issues related to this
opt-out provision, including whether the Office should require proof or
a certification that a library or archives qualifies for the opt-out
provision; which entities, principals, or agents should be allowed to
opt out on behalf of a library or archives; how the opt-out provision
would apply to library or archives employees; and various transparency
and functionality considerations related to publication of the opt-out
list.\11\
---------------------------------------------------------------------------
\11\ 86 FR 16156, 16161 (Mar. 26, 2021).
---------------------------------------------------------------------------
1. Proof or Certification Requirement
The NOI asked ``whether a library or archive should be required to
prove or certify its qualification for the limitations on exclusive
rights under 17 U.S.C. 108, and thus for the blanket opt-out
provisions, and how to address circumstances where a library or
archives ceases qualifying.'' \12\ In comments submitted in response,
parties representing libraries and archives generally opposed any
requirement that these entities be required to ``prove'' that they
qualify for the opt-out provision, although some supported a provision
allowing such an entity to self-certify that it qualifies.\13\
University Information Policy Officers and the University of Michigan
Library stated that libraries and archives should not be required to
certify their eligibility to submit a preemptive blanket opt-out
notice.\14\ AALL suggested that a self-certification approach ``would
meet the intent of Congress, which created the preemptive opt out for
libraries and archives to provide an efficient and streamlined system
for these organizations and to help them avoid the burdensome
administrative requirements of repeated opt outs.'' \15\ LCA initially
stated a library should only have to ``assert'' that it qualifies for
the preemptive opt-out,\16\ but subsequently suggested that self-
certification would be preferred to a ``legal conclusion by a
government agency that could influence a court's assessment concerning
a library's qualification for section 108.'' \17\
---------------------------------------------------------------------------
\12\ Id.
\13\ Am. Ass'n of L. Libraries (``AALL'') NOI Initial Comments
at 1-2; Univ. of Mich. Library NOI Initial Comments at 4-5.
\14\ Univ. of Mich. Library NOI Initial Comments at 4-5
(``Libraries and archives that would like to file a blanket opt-out
notice should be able to do so without needing to certify or prove
their eligibility for uses authorized by [section] 108.''); Univ.
Infor. Pol'y Officers NOI Reply Comments at 1 (``libraries and
archives should not be required to certify their eligibility in
order to submit a preemptive blanket opt-out''); see also Library
Copyright All. (``LCA'') NOI Initial Comments at 1 (``it should be
sufficient for the library merely to assert that it meets the
statutory definition''). But see LCA NOI Reply Comments at 2
(contemplating a preemptive opt out by ``certification'').
\15\ AALL NOI Initial Comments at 1-2; see also Anthony Davis
Jr. & Katherine Luce NOI Initial Comments at 2 (``If there is any
approval or certification process, it should not be onerous.'').
\16\ LCA NOI Initial Comments at 1.
\17\ LCA NOI Reply Comments at 2.
---------------------------------------------------------------------------
Others suggested that an entity that preemptively opts out of CCB
proceedings should be required to submit a formal affidavit or
declaration ``certifying its limitations on exclusive rights under 17
U.S.C 108,'' \18\ potentially under penalty of perjury.\19\ The
Copyright Alliance et al. argued that Congress granted libraries and
archives ``a unique and narrow exception'' to preemptively opt out of
CCB proceedings, but in doing so ``expressly limited the ability to
blanket opt out to [libraries or archives] that qualify for the
limitations on exclusive rights under section 108.'' \20\ They voiced
concern that ``[t]o allow entities to `self-certify' would be to open
the blanket opt out to any entity claiming to be a `library' or
`archive' regardless of whether the entity rightfully qualifies under
the law.'' \21\
---------------------------------------------------------------------------
\18\ Ben Vient NOI Initial Comments at 3 (suggesting that ``[t]o
the extent that a Library or Archive wishes to keep its opt-out
current with the CCB, it is the responsibility of the Library or
Archive to have an Affidavit or Declaration with its current
Director on file with the CCB'').
\19\ Am. Intell. Prop. L. Ass'n (``AIPLA'') NOI Initial Comments
at 4; Copyright Alliance, Am. Photographic Artists, Am. Soc'y for
Collective Rights Licensing, Am. Soc'y of Media Photographers, The
Authors Guild, CreativeFuture, Digital Media Licensing Ass'n,
Graphic Artists Guild, Indep. Book Pubs. Ass'n, Music Creators N.
Am., Nat'l Music Council of the United States, Nat'l Press
Photographers Ass'n, N. Am. Nature Photography Ass'n, Prof.
Photographers of Am., Recording Academy, Screen Actors Guild-Am.
Fed. of Television and Radio Artists, Soc'y of Composers &
Lyricists, Songwriters Guild of Am. & Songwriters of N. Am.
(``Copyright Alliance et al.'') NOI Initial Comments at 20; Science
Fiction and Fantasy Writers of Am. NOI Reply Comments at 2 (agreeing
that ``a library or archive should make its declaration under
penalty of perjury''); see also Ass'n of Medical Illustrators
(``AMI'') NOI Initial Comments at 2 (``AMI strongly believes that
[library and archives] proof and certification should be a
requirement in implementing regulations'' and ``that the pre-emptive
opt-out is not available to companies that are not eligible for
Internal Revenue Code of 501[(c)(3)] treatment.'').
\20\ Copyright Alliance et al. NOI Reply Comments at 12-13.
\21\ Id.
---------------------------------------------------------------------------
AIPLA, AMI, and Copyright Alliance et al. proposed creating a
Copyright Office or CCB procedure, separate from a CCB infringement
proceeding, to review the qualifying status of a library or archives
for the preemptive opt-out.\22\ AIPLA recommended that ``anyone,
including members of the public not bringing a CCB claim, should be
permitted to challenge whether a Library or Archive qualifies [for the
preemptive opt-out].'' \23\ Both AIPLA and the Copyright Alliance et
al. proposed that the Office could charge a fee for its review, with
AIPLA suggesting that the fee would be ``paid by the challenger if the
CCB finds the Library or Archive still qualifies, and by the Library or
Archive if it is found not to comply.'' \24\ Finally, the Copyright
Alliance et al. proposed an additional mechanism to address any
circumstance where a federal court ``determines that [an] entity does
not qualify for the section 108 exceptions.'' \25\ In such a case, the
court or the entity would be directed to notify the Copyright Office of
that determination, so that it can ``reconsider the blanket opt-out
after giving the [library or archive] an opportunity to defend its
status.'' \26\
---------------------------------------------------------------------------
\22\ AIPLA NOI Initial Comments at 4 (``If the CCB determines
that a Library or Archive does not qualify, the Library or Archive
should be permitted to appeal the decision for a fee.''); Copyright
Alliance et al. NOI Initial Comments at 20 (same); see AMI NOI
Initial Comments at 2 (``Library/Archive opt-outs should be open to
public comment and granted for 2-year terms then must reapply (using
the 1201 exemption to prohibition on of circumvention process as a
potential model).''); Univ. of Mich. Library NOI Initial Comments at
4-5 (``If a challenge is later brought concerning the library or
archive's status, the library or archive should be required to
attest that they meet the requirements of [section] 108(a)(2).'').
\23\ AIPLA NOI Initial Comments at 4.
\24\ Id.; Copyright Alliance et al. NOI Initial Comments at 20
(``If it is determined that a [library or archives] does not
qualify, the [library or archives] should be permitted to request
that the Board reconsider the decision for a fee (the statute only
precludes a fee to apply not to request reconsideration when the
application is denied).'').
\25\ Copyright Alliance et al. NOI Initial Comments at 20; see
Copyright Alliance et al. NOI Reply Comments at 14-15 (same); AIPLA
NOI Initial Comments at 4 (same).
\26\ Copyright Alliance et al. NOI Initial Comments at 20; see
Copyright Alliance et al. NOI Reply Comments at 14-15 (same); AIPLA
NOI Initial Comments at 4 (same).
---------------------------------------------------------------------------
[[Page 49275]]
LCA did not support such a proceeding and suggested that, if a
claimant wishes to bring a claim against a library or archives that it
believes is ineligible for the preemptive opt out, ``it can file a
claim against the library [or archives] with the CCB, indicating that
the library [or archives] does not meet the [statutory] requirements.''
\27\ At that point, the CCB would review the claim to determine ``[i]f
the claimant has pled facts sufficient to indicate that the library no
longer is eligible for the preemptive opt-out,'' and then the library
or archives would be served with a notice and given the opportunity to
either ``demonstrate that it still meets the requirements of section
108(a)(2), and thus that its preemptive opt-out is still valid,'' or
``opt out of that specific proceeding before the CCB.'' \28\
---------------------------------------------------------------------------
\27\ LCA NOI Reply Comments at 2.
\28\ Id.
---------------------------------------------------------------------------
While taking no position on any process for a library or archives
to ``claim status . . . for purposes of a blanket opt-out,'' the Motion
Picture Association (``MPA''), Recording Industry Association of
America (``RIAA''), and Software and Information Industry Association
(``SIIA'') asked that the Office make clear that ``an entity's status
as a library or archive for the purposes of opting out under CCB does
not constitute a determination of that entity's status, and may not be
cited as such, in any other context, including in any federal court
litigation in which that entity is a party.'' \29\
---------------------------------------------------------------------------
\29\ MPA, RIAA & SIIA NOI Reply Comments at 10. LCA agreed that
any status determination by the CCB should not be treated as
conclusive in other contexts. LCA NOI Reply Comments at 1-2.
---------------------------------------------------------------------------
The Office appreciates parties' comments on this issue and proposes
that any library or archives that wishes to take advantage of the
statutory preemptive opt-out option must submit a self-certification
that it ``qualifies for the limitations on exclusive rights under
section 108.'' \30\ In doing so, the Office is seeking to balance the
statutory goals of ensuring that only libraries and archives are
eligible for a preemptive opt-out, but also that any such entities are
not overly burdened in effecting that election. The proposed rule also
requires that any library or archives that has been found by a federal
court not to qualify for the section 108 exemptions report this
information to the CCB.
---------------------------------------------------------------------------
\30\ 17 U.S.C. 1506(aa)(4); see also Copyright Alliance et al.
NOI Reply Comments at 13 n.7 (opposing ``comments suggesting that
the CCB adopt a definition of `libraries and archives' other than
the definition articulated in the statute''). But see Authors
Alliance NOI Initial Comments at 5-6 (``[W]e support a broad
definition of `libraries and archives' which encompasses public
libraries, academic libraries, and other institutions serving the
essential functions of preservation and sharing of knowledge and
culture.'').
---------------------------------------------------------------------------
The Office will accept the facts stated in the opt-out submission
unless they are implausible or conflict with sources of information
that are known to the Office or the general public.\31\ If the Office
believes, based on such information, that the entity does not qualify,
it will communicate to the submitter that it does not intend to add the
entity to the preemptive opt-out list, or that it intends to remove the
entity from the list. The Office will then allow the submitter to
provide evidence supporting the entity's eligibility for the exemption.
If, after reviewing the submitter's response, the Office determines
that the entity does not qualify, the entity will not be added to, or
will be removed from, the opt-out list. If the Office determines that
the entity does qualify, it will be added to, or remain on, the opt-out
list. Either determination will constitute final agency action under
the Administrative Procedure Act.\32\
---------------------------------------------------------------------------
\31\ See U.S. Copyright Office, Compendium of U.S. Copyright
Office Practices sec. 309.2 (3d ed. 2021) (noting the Office's
similar approach regarding registration materials).
\32\ 5 U.S.C. 704 (``[F]inal agency action for which there is no
other adequate remedy in a court [is] subject to judicial
review.'').
---------------------------------------------------------------------------
With respect to the requests to allow third-party challenges to an
institution's eligibility for the preemptive opt-out, the Office does
not believe it is necessary to establish a procedure for such
objections that is separate from the CCB's adjudication of individual
cases. Such a process would seem an inefficient use of CCB resources,
as it could require the Board to resolve disputes over an institution's
status before any claim involving that entity has been made. As LCA
notes, a party seeking to bring a claim against a library or archives
that it believes is improperly on the opt-out list may file the claim
with the CCB and include the basis for that conclusion in its statement
of material facts. If, during its review of the claim for compliance,
the CCB determines that the claimant has alleged facts sufficient to
support the conclusion that the entity is ineligible, and the claim is
otherwise compliant, the claimant will be instructed to proceed with
service on the respondent. The respondent may then include in its
response any information to demonstrate that it is in fact eligible, or
may simply opt out of that specific proceeding. This process is
reflected in the proposed rule.
2. Persons Allowed To Opt Out on Behalf of a Library or Archives
The NOI noted the ``prevalence of libraries and archives being
located within larger entities, including but not limited to colleges
and universities or municipalities,'' and asked for comments
``addressing which entities, principals, or agents may opt out on
behalf of a library or archive, as well as any associated
certifications.'' \33\ In response, LCA suggested that Office
regulations ``should allow the preemptive opt-out to be exercised by
any person with the authority to take legally binding actions on behalf
of the library in connection to litigation.'' \34\ In its view,
``[b]ecause some institutions have many different libraries, an
official with the appropriate authority should be able in a single
process to exercise a preemptive opt-out with respect to all the
eligible libraries within the institution.'' \35\ Other commenters
suggested that those with the authority to opt out on behalf of a
library or archives could include a university agent (e.g., a dean or
associate dean) or a law firm.\36\ In contrast, AMI contended that ``a
blanket, institutional opt-out should not be permitted'' for
institutions or entities containing multiple archives.\37\ It argued
that ``[o]therwise, a complainant could have wasted money and time on
bringing an action only to have it thrown out because of ignorance of
institutional affiliation of the infringer.'' \38\
---------------------------------------------------------------------------
\33\ 86 FR at 16161.
\34\ LCA NOI Initial Comments at 2.
\35\ Id.
\36\ AALL NOI Initial Comments at 2; Anthony Davis Jr. &
Katherine Luce NOI Initial Comments at 2.
\37\ AMI NOI Initial Comments at 2.
\38\ Id.
---------------------------------------------------------------------------
The Copyright Alliance et al. suggested that ``[w]here a [library
or archives] is a part of a larger entity or municipality, such that
the [library or archives] itself does not have standing to act as a
Claimant or Counterclaimant on its own, only the larger entity or
municipality should be allowed to request the blanket opt-out on behalf
of the [library or archives].'' \39\ They reasoned that ``[b]ecause the
blanket opt-out could have major implications on an entity's exposure
to liability, only the larger entity should be allowed to make that
decision.'' \40\
---------------------------------------------------------------------------
\39\ Copyright Alliance et al. NOI Initial Comments at 20.
\40\ Id. at 20-21.
---------------------------------------------------------------------------
The Office generally agrees with LCA's suggestion that the
authority to exercise the preemptive opt-out option should belong to
any person with the authority to take legally binding actions
[[Page 49276]]
on behalf of the library or archives in connection with litigation. The
proposed rule incorporates this approach. Further, the Office does not
see a reason to restrict the ability of an institution to submit a
preemptive opt-out election for multiple libraries or archives that are
the part of the same institution in a ``blanket'' fashion, as the use
of separate submissions would be inefficient. Any preemptive opt-out
election involving multiple libraries or archives, however, should
separately identify the individual libraries or archives to be covered
by the submission, as opposed to providing a collective description
such as ``all university libraries.''
3. Transparency and Functionality Considerations
The NOI also asked for input ``related to transparency and
functionality considerations with respect to its publication of the
list of libraries and archives that have opted out.'' \41\ Commenters
generally agreed that the list of libraries and archives that have
preemptively opted out of participating in CCB proceedings should be
made publicly available online.\42\ The Office agrees, and accordingly
the list will be maintained on the Board's website.
---------------------------------------------------------------------------
\41\ 86 FR at 16161.
\42\ AIPLA NOI Initial Comments at 5; Copyright Alliance et al.
NOI Initial Comments at 21; LCA NOI Initial Comments at 2.
---------------------------------------------------------------------------
4. Application of the Opt-Out Provision to Persons in the Course of
Their Employment
Finally, the NOI asked parties to comment on whether the Office
``should include a regulatory provision that specifies that this opt
out extends to employees operating in the course of their employment.''
\43\ Commenters representing libraries and archives supported such a
rule, while others, including AIPLA and the Copyright Alliance et al.,
were opposed.
---------------------------------------------------------------------------
\43\ 86 FR at 16161.
---------------------------------------------------------------------------
Several library representatives, including AALL, LCA, the
University of Illinois Library, and the University of Michigan Library,
advocated for regulatory language specifying that the preemptive opt-
out extends to employees operating in the course of their
employment.\44\ As the University of Illinois Library argued, ``[t]o
provide a blanket opt out provision to libraries yet potentially hold
employees liable when working within the scope of their employment
would be to eviscerate the opt out provision as the work of libraries
is conducted by its employees, not by the entity itself.'' \45\ AALL
and the University of Illinois Library also argued that such a rule
would be consistent with section 108,\46\ which extends the statutory
exemption for libraries and archives to ``any of [the library or
archives'] employees acting within the scope of their employment.''
\47\
---------------------------------------------------------------------------
\44\ LCA NOI Reply Comments at 3; Univ. Information Policy
Officers NOI Reply Comments at 1; AALL NOI Initial Comments at 2;
Anonymous II NOI Initial Comments at 1; Anthony Davis Jr. &
Katherine Luce NOI Initial Comments at 2; LCA NOI Initial Comments
at 3; Univ. of Ill. Library NOI Initial Comments at 2; Univ. of
Mich. Library NOI Initial Comments at 5; see also Science Fiction
and Fantasy Writers of Am. NOI Reply Comments at 2 (noting ``no
major objection to such a provision, so long as care is taken to
ensure that employees are in fact acting within the proper scope of
their employment and within the limits of 17 U.S.C. 108'').
\45\ Univ. of Ill. Library NOI Initial Comments at 2.
\46\ AALL NOI Initial Comments at 2 (citing 17 U.S.C. 108);
Univ. of Ill. Library NOI Initial Comments at 2 (citing 17 U.S.C.
108(a)).
\47\ 17 U.S.C. 108(a).
---------------------------------------------------------------------------
In further support of this approach, LCA argued that Copyright
Claims Attorneys, who are required to review new claims to ensure that
they comply with the statute and regulations, would be able ``to
determine from the claim's statement of material facts whether the
respondent is a library employee acting with the scope of her
employment.'' \48\ It argued that such a determination would be no less
burdensome ``than to determine whether the respondent is a library that
has preemptively opted-out of CCB proceedings, a Federal or State
governmental entity,'' or ``a person or entity residing outside of the
United States''--all of which have to be determined by the CCB before a
claimant is allowed to proceed with a claim.\49\ LCA also contended
that ``[a]n employee's failure to opt out inevitably would result in
the library becoming enmeshed in the CCB proceeding on behalf of the
employee, contrary to Congressional intent.'' \50\
---------------------------------------------------------------------------
\48\ LCA NOI Reply Comments at 3.
\49\ Id. (citing 17 U.S.C. 1504(d)(3)-(4)).
\50\ Id.
---------------------------------------------------------------------------
The Copyright Alliance et al. opposed extending the libraries and
archives opt-out provision to employees acting within the scope of
their employment, arguing that ``[w]hether an employee is operating
within the course/scope of their employment is a question of fact that
would need to be determined by the CCB.'' \51\ In their view, ``[i]f a
claim is brought against an individual, and it is determined that the
claim should have been brought against a [library or archive] that has
elected to blanket opt-out, the claim should be dismissed.'' \52\ AIPLA
added that ``[d]eciding whether to extend a blanket opt out to
employees would require the CCB to determine ex parte whether employees
were operating in the course of their employment,'' which would
``undermine the adversarial process and increase the burden on the
CCB.'' \53\ Both AIPLA and the Copyright Alliance et al. noted that
individuals who are potentially acting within the scope of their
employment have the option to opt out of any CCB proceeding
themselves.\54\ AMI similarly stated that it did not support
regulations that would ``shield [a library or archive] employee from
liability for actions taken in the course of employment, but not
authorized or otherwise sanctioned by the employer [who opted out of
the CCB process].'' \55\
---------------------------------------------------------------------------
\51\ Copyright Alliance et al. NOI Initial Comments at 21.
\52\ Id.
\53\ AIPLA NOI Initial Comments at 5.
\54\ Id. at 5; Copyright Alliance et al. NOI Reply Comments at
14.
\55\ AMI NOI Initial Comments at 2.
---------------------------------------------------------------------------
The Office appreciates libraries' and archives' concerns that
excluding individual employees from the blanket opt-out could hamper
the effectiveness of that option by allowing parties to assert claims
against such individuals when claims against the institution are
unavailable. Such a rule, however, seemingly appears inconsistent with
principles of agency law and would require a broad interpretation of
the statutory text. While it is generally true that an employer may be
liable for the actions of employees taken within the scope of their
employment,\56\ the Office does not understand that principle to mean
that suits against the employee individually are precluded in such
circumstances. Rather, as a general rule, ``[u]nless an applicable
statute provides otherwise, an actor remains subject to liability
although the actor acts as an agent or an employee, with actual or
apparent authority, or within the scope of employment.'' \57\ Moreover,
the CASE Act expressly offers the preemptive opt-out option to ``a
library or archives,'' but does not mention employees.\58\ The
[[Page 49277]]
proposed rule accordingly does not include such a provision.
---------------------------------------------------------------------------
\56\ See, e.g., Alan Latman & William S. Tager, Study No. 25:
Liability of Innocent Infringers of Copyrights 145 (1958) (``The
normal agency rule that a[n] [employer] is liable for [the
employee's] wrongful acts committed within the scope of employment
has been considered applicable to copyright infringement.''),
reprinted in Subcomm. on Patents, Trademarks, and Copyrights, S.
Comm. on the Judiciary, 86th Cong., Copyright Law Revision: Studies
22-25 135 (Comm. Print 1960); see also, e.g., Lowry's Reports, Inc.
v. Legg Mason, Inc., 271 F. Supp. 2d 737, 746 (D. Md. 2003) (holding
that employer was potentially liable for the infringing conduct of
its employee-agent).
\57\ Restatement (Third) of Agency sec. 7.01 (Am. Law. Inst.
2006).
\58\ 17 U.S.C. 1506(aa)(1).
---------------------------------------------------------------------------
Some commenters further requested that the Office promulgate a
regulation expanding the statutory opt-out provision to a library's
larger institution,\59\ such as a university, or to that larger
institution's students, staff, adjunct, and faculty.\60\ For the same
reasons just noted, however, such a rule is inconsistent with the
statute's express limitation of this option to libraries and
archives.\61\
---------------------------------------------------------------------------
\59\ LCA NOI Initial Comments at 3.
\60\ Anonymous II NOI Initial Comments at 1.
\61\ 17 U.S.C. 1506(aa)(1); see also 86 FR at 16161 (``Congress
did not establish a blanket opt-out for any entities other than
libraries and archives, and in that case, it did so expressly by
statute. This suggests that the Office lacks authority to adopt
other blanket opt-outs by regulation.'' (citing Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 107
(2012); Lindh v. Murphy, 521 U.S. 320, 330 (1997))).
---------------------------------------------------------------------------
5. Other Proposals
Commenters asked the Office to promulgate certain additional rules
related to participation by libraries and archives. First, some
commenters requested that the Office consider including regulations
allowing a library or archives to revoke or rescind its preemptive opt-
out election.\62\ As LCA explained, ``[a] library should not forever be
excluded from the CCB process because it exercises a preemptive opt-out
at one point in time.'' \63\ The Copyright Alliance et al. opposed this
proposal.\64\ As an alternative, they suggested that the Office could
create a ``two-tiered system,'' with the first tier allowing for
permanent opt outs and the second tier requiring recertification of the
institution's opt-out decision ``on an annual basis.'' \65\ In their
view, this approach ``would have the additional benefit of acting as a
routine `audit' to ensure that [libraries or archives] taking advantage
of the blanket opt-out continue to meet the qualifications for section
108.'' \66\
---------------------------------------------------------------------------
\62\ Anthony Davis Jr. & Katherine Luce NOI Initial Comments at
2; CCIA & IA NOI Initial Comments at 4; LCA NOI Initial Comments at
3.
\63\ LCA NOI Initial Comments at 3.
\64\ Copyright Alliance et al. NOI Reply Comments at 12-13.
\65\ Id. at 13.
\66\ Id.
---------------------------------------------------------------------------
The Office generally agrees that a library's or archives' opt-out
election should not be irreversible. Indeed, permitting such an
institution to rescind an opt-out would help advance the statutory goal
of encouraging participation in the CCB system. The proposed rule
accordingly provides that a library or archives may rescind a
preemptive opt-out election by providing written notification of such
intent to the CCB. To avoid potential abuses and to limit the impact on
CCB resources, the proposed rule provides that an institution may make
no more than one such rescission per calendar year.
In addition, two commenters proposed rules to address errors and
abuses involving the opt-out process. LCA urged the Office to establish
procedures to address circumstances where a Copyright Claims Attorney
erroneously allows a claim to proceed against a library.\67\ Verizon
proposed regulations to ``deter those who repeatedly abuse the opt-out
process,'' including the ability ``to impose monetary fines on bad
faith filers'' and ``the ability to ban such parties from future use of
the CCB process.'' \68\ While these suggestions are related to the
preemptive opt-out provisions for libraries and archives, they are more
appropriately considered in future CASE Act rulemakings addressing
errors in and abuses of CCB procedures generally.
---------------------------------------------------------------------------
\67\ LCA NOI Reply Comments at 4.
\68\ Verizon NOI Initial Comments at 3-4.
---------------------------------------------------------------------------
B. Class Actions
A CCB proceeding does not have any effect on a class action
proceeding in federal district court.\69\ If, however, a party in an
active CCB proceeding ``receives notice of a pending or putative class
action, arising out of the same transaction or occurrence'' as the
claim at issue before the CCB, the CASE Act provides that party with
two choices.\70\ The party must either ``opt out of the class action,
in accordance with regulations established by the Register,'' or seek
dismissal of the CCB proceeding in writing.\71\ In the NOI, the Office
asked for public comment on ``any issues that should be considered
relating to regulations governing dismissal or opt-outs related to
class action proceedings, including specific proposed regulatory
language.'' \72\
---------------------------------------------------------------------------
\69\ 17 U.S.C. 1507(b).
\70\ Id. at 1506(q)(3).
\71\ Id. at 1507(b)(2); 1506(q)(3).
\72\ 86 FR at 16161.
---------------------------------------------------------------------------
Two parties provided comments on this issue. The Copyright Alliance
et al. suggested that ``[i]f a party receives notice of a class action
and wishes to dismiss the case before the CCB, the regulations should
require that party to notify the CCB and the other parties to the case
within 10 business days following receipt of the class action notice.''
\73\ The MPA, RIAA, and SIAA did not suggest a specific time period,
but suggested that ``a party learning of a class action during the
pendency of a proceeding and wishing to exercise a class-action opt-out
should be required to do so promptly after learning of the class
action.'' \74\ The MPA, RIAA, and SIIA also voiced concerns that a
delayed opt out decision ``risks wasting effort and expense by the
litigants and the CCB, and the amount of wasted effort and expense
increases with the passage of time.'' \75\
---------------------------------------------------------------------------
\73\ Copyright Alliance et al. NOI Initial Comments at 21.
\74\ MPA, RIAA & SIIA NOI Initial Comments at 9.
\75\ Id.
---------------------------------------------------------------------------
The Office has proposed a fourteen-day period for a party to either
opt out of the class action or to seek dismissal of the CCB proceeding.
If a party chooses to opt out of the class action, he or she must file
written notice of that intent with the CCB within fourteen days after
filing such notice with the court. The proposed rule authorizes the
Board to extend these time periods for good cause.
List of Subjects in 37 CFR Part 223
Copyright, Claims.
Proposed Regulations
For the reasons set forth in the preamble, the Copyright Office
proposes to amend Chapter II, Subchapter B, of title 37 Code of Federal
Regulations to read as follows:
SUBCHAPTER B--COPYRIGHT CLAIMS BOARD AND PROCEDURES
0
1. The heading of Subchapter B is revised to read as set forth above.
0
2. Part 223 is added to read as follows:
PART 223--OPT-OUT PROVISIONS
Sec.
223.1 [Reserved]
223.2 Libraries and archives opt-out procedures.
223.3 Class action opt-out procedures.
Authority: 17 U.S.C. 702, 1510.
Sec. 223.1 [Reserved]
Sec. 223.2 Libraries and archives opt-out procedures.
(a) Opt-out notification. (1) A library or archives that wishes to
preemptively opt out of participating in Copyright Claims Board
proceedings under 17 U.S.C. 1506(aa) may do so by submitting written
notification to the Copyright Claims Board. The notification shall
include a signed certification under penalty of perjury that the
library or archives qualifies for the limitations on exclusive rights
under section 108 of title 17.
(2) The submission described in paragraph (a)(1) of this section
shall list the name and physical address of each
[[Page 49278]]
library or archives to which the preemptive opt out applies and shall
be signed by a person with the authority described in paragraph (c) of
this section. The library or archives must also provide a point of
contact for future correspondence, including phone number, mailing
address, and email address and shall notify the Copyright Claims Board
if this information changes.
(3) The Copyright Claims Board will accept the facts stated in the
submission described in paragraphs (a)(1) and (2) of this section,
unless they are implausible or conflict with sources of information
that are known to the Copyright Claims Board or the general public.
(4) If a federal court determines that an entity described in
paragraph (a)(1) of this section does not qualify for the limitations
on exclusive rights under section 108 of title 17, that entity must
inform the Copyright Claims Board of that determination and submit a
copy of the relevant order or opinion, if any, within fourteen days
after the determination is issued.
(5) A library or archives may rescind its preemptive opt-out
election under this section, such that it may participate in Copyright
Claims Board proceedings, by providing written notification to the
Copyright Claims Board in accordance with such instructions as are
provided on the Copyright Claims Board website. A library or archives
may submit no more than one such rescission notification per calendar
year.
(6) The notification described in paragraph (a)(1) of this section
shall be submitted to the Copyright Claims Board in accordance with
such instructions as are provided on the Copyright Claims Board
website.
(b) Review of eligibility. (1) The Copyright Claims Board will
maintain on its website a public list of libraries and archives that
have preemptively opted out of Copyright Claims Board proceedings
pursuant to paragraph (a) of this section. If the Register determines
pursuant to paragraph (a)(3) of this section that an entity does not
qualify for the preemptive opt-out provision, the Office will
communicate to the point of contact described in paragraph (a)(2) of
this section that it does not intend to add the entity to the public
list, or that it intends to remove the entity from that list, and will
allow the entity to provide evidence supporting its qualification for
the exemption within thirty days. If the entity fails to respond, or
if, after reviewing the entity's response, the Register determines that
the entity does not qualify for the limitations on exclusive rights
under section 108 of title 17, the entity will be not be added to, or
will be removed from, the public list. If the Register determines that
the entity qualifies for the limitations on exclusive rights under
section 108 of title 17, the entity will be added to, or remain on, the
libraries and archives preemptive opt-out list. This provision does not
limit the Office's ability to request additional information from the
point of contact listed pursuant to paragraph (a)(2) of this section.
(2) A party seeking to assert a claim under this section against a
library or archives that it believes is improperly included on the
public list described in paragraph (b)(1) of this section may file the
claim with the Copyright Claims Board pursuant to 17 U.S.C. 1506(e) and
applicable regulations. The claimant must include in its statement of
material facts allegations sufficient to support that belief. If the
Copyright Claims Board determines, as part of its review of the claim
pursuant to 17 U.S.C. 1506(f), that the claimant has alleged facts
sufficient to support the conclusion that the library or archives is
ineligible for the preemptive opt-out, and the claim is otherwise
complaint, the claimant will be instructed to proceed with service of
the claim. The respondent may include in its response any factual
statements in support of its eligibility.
(3) Any determination made under paragraph (b)(1) of this section
shall constitute final agency action under 5 U.S.C. 704.
(c) Authority. Any person with the authority to take legally
binding actions on behalf of a library or archives in connection with
litigation may submit a notification under paragraph (a) of this
section.
(d) Multiple libraries and archives in a single submission. A
notification under paragraph (a) of this section may include multiple
libraries or archives in the same submission if each library or
archives is listed separately in the submission and the submitter has
the authority described under paragraph (c) of this section to submit
the notification on behalf of all libraries and archives included in
the submission.
Sec. 223.3 Class action opt-out procedures.
(a) Opt-out or dismissal procedures. Any party to an active
proceeding before the Copyright Claims Board who receives notice of a
pending or putative class action, arising out of the same transaction
or occurrence as the proceeding before the Copyright Claims Board, in
which the party is a class member, shall either opt out of the class
action or seek written dismissal of the proceeding before Copyright
Claims Board within fourteen days of receiving notice of the pending
class action. If a party seeks written dismissal of the proceeding
before Copyright Claims Board, upon notice to all claimants and
counterclaimants, the Copyright Claims Board shall dismiss the
proceeding without prejudice.
(b) Filing requirement. A copy of the notice indicating a party's
intent to opt out of a class action proceeding must be filed with the
Copyright Claims Board within fourteen days after the filing of the
notice with the court.
(c) Timing. The time periods provided in paragraphs (a) and (b) of
this section may be extended by the Copyright Claims Board for good
cause shown.
Dated: August 24, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
[FR Doc. 2021-18567 Filed 9-1-21; 8:45 am]
BILLING CODE 1410-30-P
