Exemptions To Permit Circumvention of Access Controls on Copyrighted Works, 37486-37489 [2023-12250]

Agencies

• Library of Congress
• Copyright Office

[Federal Register Volume 88, Number 110 (Thursday, June 8, 2023)]
[Proposed Rules]
[Pages 37486-37489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12250]


=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. 2023-5]


Exemptions To Permit Circumvention of Access Controls on 
Copyrighted Works

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

ACTION: Notification of inquiry and request for petitions.

-----------------------------------------------------------------------

SUMMARY: The United States Copyright Office is initiating the ninth 
triennial rulemaking proceeding under the Digital Millennium Copyright 
Act (``DMCA'') to consider possible temporary exemptions to the DMCA's 
prohibition against circumvention of technological measures that 
control access to copyrighted works. In this proceeding, the Copyright 
Office is again providing a streamlined procedure for the renewal of 
exemptions that were granted during the eighth triennial rulemaking. If 
renewed, those current exemptions would remain in force for an 
additional three-year period (October 2024-October 2027). Members of 
the public seeking the renewal of current exemptions should submit 
petitions as described below; parties opposing such renewal will then 
have the opportunity to file comments in response. The Office is also 
accepting petitions for new exemptions to engage in activities not 
currently permitted by existing exemptions, which may include proposals 
that expand on a current exemption. Those petitions, and any renewal 
petitions that are opposed, will be considered pursuant to a rulemaking 
process that includes three rounds of written comment, followed by 
public hearings, which the Office intends to conduct virtually.

DATES: Written petitions for renewal of current exemptions must be 
received no later than 11:59 p.m. Eastern Time on July 7, 2023. Written 
comments in response to any petitions for renewal must be received no 
later than 11:59 p.m. Eastern Time on August 11, 2023. Written 
petitions for new exemptions must be received no later than 11:59 p.m. 
Eastern Time on August 11, 2023.

ADDRESSES: Written petitions for renewal of current exemptions must be 
completed using the form provided on the Office's website at https://www.copyright.gov/1201/2024/renewal-petition.pdf. Written petitions 
proposing new exemptions must be completed using the form provided on 
the Office's website at https://www.copyright.gov/1201/2024/new-petition.pdf. The Copyright Office is using the regulations.gov system 
for the submission and posting of public petitions and comments in this 
proceeding. All petitions and comments are therefore to be submitted 
electronically through regulations.gov. Specific instructions for 
submitting petitions and comments are available on the Copyright Office 
website at https://www.copyright.gov/1201/2024. If electronic 
submission is not feasible, please contact the Office using the contact 
information below for special instructions.

FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the 
General Counsel, by email at [email protected] or telephone at 202-
707-8350.

SUPPLEMENTARY INFORMATION: 

I. The Digital Millennium Copyright Act and Section 1201

    The Digital Millennium Copyright Act (``DMCA'') \1\ has played a 
pivotal role in the development of the modern digital economy. Enacted 
by Congress in 1998 to implement the United States' obligations under 
two international treaties,\2\ the DMCA was intended to foster the 
growth and development of a thriving, innovative, and flexible digital 
marketplace by making digital networks safe places to disseminate and 
use copyrighted materials.\3\ It did this by, among other things, 
providing new legal protections for copyrighted content made available 
in digital formats.\4\
---------------------------------------------------------------------------

    \1\ Public Law 105-304, 112 Stat. 2860 (1998).
    \2\ WIPO Copyright Treaty, Dec. 20, 1996, 36 I.L.M. 65 (1997); 
WIPO Performances and Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 76 
(1997).
    \3\ See Staff of H. Comm. on the Judiciary, 105th Cong., 
Section-by-Section Analysis of H.R. 2281 as Passed by the United 
States House of Representatives on August 4th, 1998, at 2, 6 (Comm. 
Print 1998) (``House Manager's Report''); H.R. Rep. No. 105-551, pt. 
2, at 21, 23 (1998); H.R. Rep. No. 105-551, pt. 1, at 10 (1998); S. 
Rep. No. 105-190, at 1-2, 8-9 (1998).
    \4\ See House Manager's Report at 6 (noting Congress's intention 
to ``support new ways of disseminating copyrighted materials to 
users, and to safeguard the availability of legitimate uses of those 
materials by individuals'').
---------------------------------------------------------------------------

    These protections, codified in section 1201 of title 17, United 
States Code, seek to balance the interests of copyright owners and 
users, including the personal interests of consumers, in the digital 
environment.\5\ Section 1201 protects technological measures (also 
called technological protection measures or ``TPMs'') used by copyright 
owners to prevent unauthorized access to or use of their works.\6\ 
Section 1201 contains three separate protections for TPMs. First, it 
prohibits circumvention of technological measures employed by or on 
behalf of copyright owners to protect access to their works (also known 
as access controls). Access controls include, for example, a password 
requirement limiting access to an online service to paying customers or 
an authentication code in a video game console to prevent the playing 
of pirated copies. Second, the statute prohibits trafficking in devices 
or services primarily designed to circumvent access controls. Finally, 
it prohibits trafficking in devices or services primarily designed to 
circumvent TPMs used to protect the exclusive rights of the copyright 
owner of a work (also known as copy controls). Copy controls protect 
against unauthorized uses of a copyrighted work once access has been 
lawfully obtained. They include, for example, technology preventing the 
copying of an e-book after it has been downloaded to a user's device. 
Though trafficking in circumvention devices and services is prohibited, 
the statute does not ban the act of circumventing a copy control.\7\ 
All of these prohibitions supplement the preexisting rights of 
copyright owners under the Copyright Act of 1976 by establishing 
separate and distinct causes of action independent of any infringement 
of copyright.\8\
---------------------------------------------------------------------------

    \5\ See H.R. Rep. No. 105-551, pt. 2, at 26.
    \6\ 17 U.S.C. 1201(a)-(b).
    \7\ S. Rep. No. 105-190, at 12.
    \8\ See U.S. Copyright Office, Section 1201 of Title 17, at i, 
iii, 43-45 (June 2017) (``Section 1201 Study''), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf.
---------------------------------------------------------------------------

    Section 1201 contains a number of specific exemptions to these 
prohibitions to avoid curtailing legitimate activities such as security 
testing, law enforcement activities, or the protection of personally 
identifying information.\9\ In addition, to accommodate changing 
marketplace conditions and ensure that access to copyrighted works for 
other lawful purposes is not unjustifiably diminished,\10\ the statute 
provides for a rulemaking proceeding where temporary exemptions to the

[[Page 37487]]

prohibition on circumventing access controls may be adopted by the 
Librarian of Congress, on the recommendation of the Register of 
Copyrights after consultation with the Assistant Secretary for 
Communications and Information of the Department of Commerce.\11\ In 
contrast to the permanent exemptions set out by statute, exemptions 
adopted pursuant to the rulemaking must be reconsidered every three 
years.\12\ By statute, the triennial rulemaking process only addresses 
the prohibition on circumvention of access controls; the statute does 
not grant the authority to adopt exemptions to the anti-trafficking 
provisions.\13\
---------------------------------------------------------------------------

    \9\ 17 U.S.C. 1201(d)-(j).
    \10\ H.R. Rep. No. 105-551, pt. 2, at 35-36.
    \11\ 17 U.S.C. 1201(a)(1)(C); see also id. at 1201(a)(1)(B)-(D).
    \12\ Id. at 1201(a)(1)(C).
    \13\ Id. at 1201(a)(1)(C), (a)(1)(E).
---------------------------------------------------------------------------

    For an exemption to be granted through the triennial rulemaking, it 
must be established that ``persons who are users of a copyrighted work 
are, or are likely to be in the succeeding 3-year period, adversely 
affected by the prohibition . . . in their ability to make 
noninfringing uses under [title 17] of a particular class of 
copyrighted works.'' \14\ In evaluating the evidence, several statutory 
factors must be weighed: ``(i) the availability for use of copyrighted 
works; (ii) the availability for use of works for nonprofit archival, 
preservation, and educational purposes; (iii) the impact that the 
prohibition on the circumvention of technological measures applied to 
copyrighted works has on criticism, comment, news reporting, teaching, 
scholarship, or research; (iv) the effect of circumvention of 
technological measures on the market for or value of copyrighted works; 
and (v) such other factors as the Librarian considers appropriate.'' 
\15\
---------------------------------------------------------------------------

    \14\ Id. at 1201(a)(1)(C).
    \15\ Id.
---------------------------------------------------------------------------

II. Overview of the Rulemaking Process

    To assess whether the implementation of access controls impairs the 
ability of individuals to make noninfringing uses of copyrighted works, 
the Copyright Office solicits exemption proposals from the public and 
develops a comprehensive administrative record using information 
submitted by interested parties.\16\ Based on that record, the Register 
provides a written recommendation to the Librarian concerning which 
exemptions are warranted. The recommendation includes proposed 
regulatory text for adoption and publication in the Federal Register.
---------------------------------------------------------------------------

    \16\ See H.R. Rep. No. 105-796, at 64 (1998) (Conf. Rep.) (``It 
is the intention of the conferees that . . . the Register of 
Copyrights will conduct the rulemaking, including providing notice 
of the rulemaking, seeking comments from the public, consulting with 
the Assistant Secretary for Communications and Information of the 
Department of Commerce and any other agencies that are deemed 
appropriate, and recommending final regulations in the report to the 
Librarian.''); see also H.R. Rep. No. 106-464, at 149 (1999) (Conf. 
Rep.) (``[T]he Copyright Office shall conduct the rulemaking under 
section 1201(a)(1)(C) . . . .'').
---------------------------------------------------------------------------

    The rulemaking process for the ninth triennial proceeding will be 
generally the same as the process followed in the eighth proceeding. 
This includes the streamlined procedure introduced in the seventh 
proceeding through which members of the public may petition for 
temporary exemptions that were granted during the previous rulemaking 
to remain in force for an additional three-year period (October 2024-
October 2027).
    With this notification of inquiry, the Copyright Office is 
initiating the petition phase of the rulemaking, asking the public to 
submit petitions both to renew current exemptions, as well as any 
comments in support of or opposition to such petitions, and to propose 
new exemptions. After the close of the petition phase, the Office will 
publish a notice of proposed rulemaking (``NPRM'') to initiate the next 
phase of the rulemaking process, also described below.
    Video tutorials explaining section 1201 and the rulemaking process 
can be found on the Office's section 1201 rulemaking web page at 
https://www.copyright.gov/1201.

III. Process for Seeking Renewal of Current Exemptions

    For the last two rulemakings, the Copyright Office has used a 
streamlined process to facilitate the renewal of previously adopted 
exemptions for which there was no substantive opposition.\17\ This 
process remains in effect, and parties seeking readoption of a current 
exemption may petition for its renewal by submitting a required form, 
available on the Office's website at https://www.copyright.gov/1201/2024/renewal-petition.pdf. This form is for renewal petitions only. 
Petitions for new exemptions must use a different form, as discussed 
below.
---------------------------------------------------------------------------

    \17\ Exemptions to Permit Circumvention of Access Controls on 
Copyrighted Works: Notice of Inquiry, 85 FR 37399 (June 22, 2020) 
(``2020 NOI''). The streamlined process was first introduced during 
the seventh proceeding shortly after the Office concluded a 
comprehensive public policy study of section 1201. See Exemptions to 
Permit Circumvention of Access Controls on Copyrighted Works: Notice 
of Inquiry, 82 FR 29804 (June 30, 2017); see generally Section 1201 
Study. In that study, the Office concluded that ``the statute itself 
requires that exemptions cannot be renewed automatically, 
presumptively, or otherwise, without a fresh determination 
concerning the next three-year period. . . . [A] determination must 
be made specifically for each triennial period.'' Section 1201 Study 
at 142. The Office further determined, however, that ``the statutory 
language appears to be broad enough to permit determinations to be 
based upon evidence drawn from prior proceedings, but only upon a 
conclusion that this evidence remains reliable to support granting 
an exemption in the current proceeding.'' Id. at 143.
---------------------------------------------------------------------------

    Scope of Renewal. The Office will only permit renewal of current 
exemptions as they are currently written in the Code of Federal 
Regulations, without modification. If a proponent seeks to engage in 
any activities not currently permitted by an existing exemption, they 
must submit a petition for a new exemption. Petitioners seeking to 
expand an existing exemption are encouraged to submit both a petition 
to renew the existing exemption and a separate petition for a new 
exemption. In such cases, the petition for a new exemption may focus on 
legal and factual issues relevant to the proposed expansion. If the 
Office recommends renewal of the current exemption, then it will 
consider only the discrete aspects relevant to its expansion as a new 
petition.
    Automatic Reconsideration. If the Office declines to recommend 
renewal of a current exemption (as discussed below), proponents of 
renewal do not need to submit additional material. The petition to 
renew will automatically convert into a petition for a new exemption. 
If a proponent petitions for both renewal and expansion, and the Office 
declines to recommend renewal of the existing exemption, the expanded 
exemption as a whole will be treated as a new petition.
    Petition Form and Contents. The petition to renew is a short form 
designed to let proponents identify themselves, identify the relevant 
exemption, and make sworn statements to the Copyright Office concerning 
the existence of a continuing need and justification for the exemption. 
Proponents are required to use the Office's prepared form and must 
follow the instructions contained in this notice and on the form. 
Proponents seeking renewal of multiple exemptions must submit separate 
forms for each exemption. This requirement ensures a clear record of 
the basis for each renewal request.
    The petition form has four components:
    1. Petitioner identity and contact information. Each petitioner 
(i.e., the individual or entity seeking renewal) must provide its name 
and the name of its representative, if any, along with contact 
information. Any member of the public capable of making the sworn 
declaration discussed below may submit

[[Page 37488]]

a petition for renewal, regardless of whether they were involved with 
past rulemakings. Petitioners and/or their representatives should be 
reachable through the provided contact information for the duration of 
the rulemaking proceeding. Multiple petitioning parties may jointly 
file a single petition.
    2. Identification of the current exemption that is the subject of 
the petition. The form lists all exemptions currently in effect and 
codified at 37 CFR 201.40. Petitioners must mark the appropriate 
checkbox for the exemption they seek to renew.
    3. Explanation of need for renewal. The petitioner must provide a 
brief explanation summarizing the basis for claiming a continuing need 
and justification for the exemption. The required showing is meant to 
be minimal. The Office anticipates that petitioners will provide a 
paragraph or two detailing this information, but there is no page 
limit. While it is permissible to attach supporting documentary 
evidence as exhibits to the petition, it is not necessary. The Office's 
petition form includes an example of what it regards as a sufficient 
explanation.
    4. Declaration and signature. One of the named petitioners must 
sign a declaration attesting to the continued need for the exemption 
and the truth of the explanation provided in support. Where the 
petitioner is an entity, the declaration must be signed by an 
individual at the organization having appropriate personal knowledge to 
make the declaration and authority to sign on behalf of the entity. The 
declaration may be signed electronically.
    For the attestation to be trustworthy and reliable, it is important 
that the petitioner make it based on his or her own personal knowledge 
and experience. This requirement should not be burdensome, as a broad 
range of individuals have a sufficient level of knowledge and 
experience. For example, a blind individual having difficulty finding 
and purchasing e-books with appropriate assistive technologies would 
have personal knowledge and experience to make the declaration with 
regard to the assistive technology exemption. The same would hold true 
for an organization like the American Foundation for the Blind, which 
advocates for the blind, visually impaired, and print disabled, is 
familiar with the needs of the community, and has particular knowledge 
of e-book accessibility. It would be improper, however, for a general 
member of the public to petition for renewal if he or she knows nothing 
more about matters concerning e-book accessibility other than what he 
or she might have read in a brief newspaper article, or simply opposes 
the use of TPM tools as a matter of general principle.
    The declaration also requires an affirmation that, to the best of 
the petitioner's knowledge, there has not been any material change in 
the facts, law, or other circumstances in the rulemaking record that 
resulted in the exemption being issued initially.\18\ By ``material 
change,'' the Office means a significant change in the underlying 
conditions that justified the exemption when it was first granted, such 
as legal precedent that led the Office to conclude a use was likely 
noninfringing, or factual circumstances that demonstrated individuals 
could not engage in a noninfringing use due to the statutory 
prohibition on circumvention. The attestation serves as evidence that 
the Office can continue to rely on the prior rulemaking record and 
that, absent renewal of the exemption, users of copyrighted works would 
be adversely affected in their ability to engage in noninfringing uses.
---------------------------------------------------------------------------

    \18\ Depending on when the exemption was originally recommended 
by the Office, the relevant rulemaking record may be discussed in 
the 2015, 2018, or 2021 Register's Recommendation.
---------------------------------------------------------------------------

C. Comments in Response to a Petition to Renew an Exemption

    Any interested party may submit comments in response to a renewal 
petition. While the primary purpose of these comments is to allow for 
opposition to renewal requests, parties may also submit comments in 
support of renewal. The Office will not provide a form for such 
comments, and the first page of any responsive comments must clearly 
identify which exemption's renewal is being supported or opposed. Each 
submission must address only a single exemption, but participants may 
submit multiple comments to address multiple exemptions. For example, a 
party who opposes (or supports) the renewal of both the wireless device 
unlocking exemption and the jailbreaking exemption for routers and 
other networking devices must file separate comments for each.\19\ The 
Office recognizes that this format may require some parties to repeat 
some general information (e.g., about their organization) across 
multiple submissions, but it has determined that the administrative 
benefits of creating self-contained, separate records for each 
exemption will be worth the modest amount of added effort involved.
---------------------------------------------------------------------------

    \19\ If a single exemption receives multiple petitions for its 
renewal, commenters may respond to all of those petitions in a 
single submission. For instance, if the Office receives six 
petitions in favor of readopting the current unlocking exemption, a 
commenter may file a single comment that addresses points made in 
the six petitions. That comment, however, may not address petitions 
to readopt the jailbreaking exemption for routers and other 
networking devices.
---------------------------------------------------------------------------

    Opposition to a renewal petition should provide evidence that the 
prior rulemaking record is no longer a valid basis to support 
recommending renewal of an exemption.\20\ Specifically, evidence should 
consist of new legal or factual developments that implicate ``the 
reliability of the previously-analyzed administrative record.'' \21\ 
For example, a change in case law might affect whether a particular use 
is noninfringing, new technological developments might affect the 
availability for use of copyrighted works, or new business models might 
affect the market for or value of copyrighted works. The Office may 
also consider whether opposition evidence casts doubt only as to 
renewal of part of a current exemption.
---------------------------------------------------------------------------

    \20\ In the past two rulemaking cycles, the Office referred to 
such oppositions as ``meaningful.'' See 2020 NOI at 37402. The 
Office is adopting different terminology here to avoid potential 
confusion about when an opposition can be considered ``meaningful.''
    \21\ See Exemptions to Permit Circumvention of Access Controls 
on Copyrighted Works: Notice of Proposed Rulemaking, 85 FR 65293, 
65295 (Oct. 15, 2020) (``2020 NPRM'') (finding renewal oppositions 
were not meaningful where they questioned the sufficiency of the 
renewal petition's justifications ``rather than themselves disputing 
the reliability of the previously-analyzed administrative record''). 
Opponents may also explain if a petitioner has failed to comply with 
the renewal process outlined above (such as because the petitioner 
lacks personal knowledge or experience relevant to the exemption 
sought to be renewed).
---------------------------------------------------------------------------

    Unsupported conclusory opinion and speculation will not be enough 
for the Office to refuse to recommend renewing an exemption it would 
have otherwise recommended in the absence of any opposition, or to 
convert a renewal petition into a petition for a new exemption. Nor 
should opposition comments opine on unrelated issues, such as whether 
proponents have in fact engaged in ``every possible use covered by an 
exemption'' or ``whether any user's activities may or may not be 
consistent with the exemption'' as codified.\22\ The sole purpose of 
the streamlined renewal proceeding is to determine whether petitioners 
have made a minimal showing that the regulatory record that supported a 
previously issued exemption remains representative of the current 
environment.\23\ It is not a forum to litigate other concerns.
---------------------------------------------------------------------------

    \22\ Id. at 65296-97.
    \23\ Id. at 65297-98 (finding proponents had made ``minimal 
showing'' required for renewal and concluding that, given a lack of 
opposition, ``the conditions that led to adoption of this exemption 
are likely to continue during the next triennial period'').

---------------------------------------------------------------------------

[[Page 37489]]

IV. Process for Seeking New Exemptions

    Those seeking to engage in activities not currently permitted by an 
existing exemption, including activities that expand on a current 
exemption, may propose a new exemption by filing a petition using the 
fillable form, available on the Office's website at https://www.copyright.gov/1201/2024/new-petition.pdf. Use of the Office's 
prepared form is mandatory, and petitioners must follow the 
instructions contained in this notice and on the petition form. As in 
previous rulemakings, a separate petition must be filed for each 
proposed exemption. By requiring separate submissions for each proposed 
exemption, the Office will ensure a clear administrative record for 
each proposed exemption. Although a single petition may not encompass 
more than one proposed exemption, the same party may submit multiple 
petitions.
    The petition form has two components:
    1. Petitioner identity and contact information. The form asks each 
petitioner (i.e., the individual or entity proposing the exemption) to 
provide its name and the name of its representative, if any, along with 
contact information. Petitioners and/or their representatives must be 
reachable through the provided contact information for the duration of 
the rulemaking proceeding. Multiple petitioning parties may jointly 
file a single petition.
    2. Description of the proposed exemption. At this stage, the Office 
is only asking petitioners to briefly explain the nature of the 
proposed new or expanded exemption. The information that would be most 
helpful to the Office includes the following, to the extent relevant: 
(1) the types of copyrighted works sought to be accessed; (2) the 
physical media or devices on which the works are stored or the services 
through which the works are accessed; (3) the purposes for which the 
works are sought to be accessed; (4) the types of users who want 
access; and (5) the barriers that currently exist or which are likely 
to exist in the near future preventing these users from obtaining 
access to the relevant copyrighted works.
    The description of the new exemption may be minimal. Petitioners do 
not need to propose regulatory language or fully define the contours of 
an exemption class. A short statement describing the nature of the 
activities in which petitioners seek to engage is sufficient. The 
Office anticipates that petitioners will be able to adequately describe 
in plain terms the relevant information in a few sentences. The form 
includes examples of what the Office regards as a sufficient 
description. At this point, petitioners need not, and should not, 
provide a complete legal and evidentiary basis for their proposals.
    The sole purpose of the petition is to provide the Office with 
basic information about what uses of copyrighted works petitioners 
believe are adversely affected by the statutory prohibition on 
circumvention. The Office will then use that information to organize 
and formulate categories of potential exemptions, grouping similar 
proposals together. This organization will be used in the substantive 
phase of the rulemaking that begins with the publication of the NPRM in 
the fall.
    As in previous rulemakings, the NPRM will not ``put forward precise 
regulatory language for the proposed classes.'' \24\ The Office's 
grouping of proposed exemption classes in the NPRM is ``only a starting 
point for further consideration in the rulemaking proceeding,'' and 
will be subject to ``further refinement based on the record.'' \25\ 
Proponents will have the opportunity to further refine or expound on 
their initial petitions as the rulemaking progresses.
---------------------------------------------------------------------------

    \24\ 2020 NOI at 37402 (quoting 82 FR 29804, 29807 (June 30, 
2017)).
    \25\ Id.
---------------------------------------------------------------------------

V. Notice of Proposed Rulemaking

    After reviewing the petitions for new exemptions, petitions for 
renewal of existing exemptions, and comments on petitions for renewal, 
the Office will issue an NPRM addressing all of the potential 
exemptions to be considered in the rulemaking.
    With respect to renewal petitions, the NPRM will set forth which 
exemptions the Register intends to recommend for renewal, along with 
proposed regulatory language. The NPRM will also identify any 
exemptions the Register declines to recommend for renewal due to an 
insufficient showing or evidence presented in comments opposing 
renewal. Those exemptions will instead be treated as a new petition and 
require a new administrative record. At the NPRM stage, the Register 
will not reject any petitioned exemption, unless it fails to meets the 
threshold requirements of section 1201(a).\26\
---------------------------------------------------------------------------

    \26\ See Exemption to Prohibition on Circumvention of Copyright 
Protection Systems for Access Control Technologies: Notice of 
Proposed Rulemaking, 79 FR 73856, 73859 (Dec. 12, 2014) (noting that 
three petitions sought an exemption which could not be granted as a 
matter of law and declining to put them forward for comment).
---------------------------------------------------------------------------

    For newly requested exemptions, including proposals to expand 
current exemptions, the NPRM will group such exemptions appropriately, 
describe them, and initiate at least three rounds of public comment. 
The Office plans to consolidate or group related and/or overlapping 
proposed exemptions where possible to simplify the rulemaking process 
and encourage joint participation among parties with common interests 
(though such collaboration is not required). As in previous 
rulemakings, the exemptions described in the NPRM will serve as a 
starting point for further consideration in the rulemaking proceeding 
and are subject to further refinement. Additionally, the NPRM will 
highlight specific legal and factual issues in proposed exemptions that 
the Office finds particularly important and should be addressed in 
public comments. The NPRM will also contain additional instructions and 
requirements for submitting comments and will detail the later phases 
of the rulemaking proceeding--i.e., public hearings, post-hearing 
questions, recommendation, and final rule. The Office intends to hold 
virtual public hearings as in the previous rulemaking, as this format 
supports an efficient process and provides greater accessibility for 
the public and rulemaking participants.
    The Office expects to follow a similar timeframe for issuance of 
the NPRM and submission of comments as in the eighth rulemaking.\27\ If 
appropriate, the Office may issue post-hearing questions to hearing 
participants or hold ex parte meetings to discuss discrete issues in 
the proposed classes, including suggestions regarding regulatory 
language, as well as to provide opportunities for sufficient 
stakeholder participation.\28\
---------------------------------------------------------------------------

    \27\ In the previous rulemaking, the NPRM was published on 
October 15, 2020, initial comments supporting new exemptions due on 
December 14, 2020, opposition comments due on February 9, 2021, and 
reply comments due on March 10, 2021. 2020 NPRM at 65293.
    \28\ See 2020 NOI at 37403; U.S. Copyright Office, Ex Parte 
Communications, https://www.copyright.gov/1201/2021/ex-parte-communications.html; U.S. Copyright Office, Letters Between the U.S. 
Copyright Office and Other Agencies, https://www.copyright.gov/1201/2021/USCO-letters/; Section 1201 Study at 150-51.

    Dated: June 5, 2023.
Suzanne V. Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2023-12250 Filed 6-7-23; 8:45 am]
BILLING CODE 1410-30-P