[Federal Register: October 3, 2005 (Volume 70, Number 190)]
[Proposed Rules]
[Page 57526-57531]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03oc05-21]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2005-11]
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
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SUMMARY: The Copyright Office of the Library of Congress is preparing
to conduct proceedings in accordance with section 1201(a)(1) of the
Copyright Act, which was added by the Digital Millennium Copyright Act
and which provides that the Librarian of Congress may exempt certain
classes of works from the prohibition against circumvention of
technological measures that control access to copyrighted works. The
purpose of this rulemaking proceeding is to determine whether there are
particular classes of works as to which users are, or are likely to be,
adversely affected in their ability to make noninfringing uses due to
the prohibition on circumvention. This notice requests written comments
from all interested parties, including representatives of copyright
owners, educational institutions, libraries and archives, scholars,
researchers and members of the public, in order to elicit evidence on
whether noninfringing uses of certain classes of works are, or are
likely to be, adversely affected by this prohibition on the
circumvention of measures that control access to copyrighted works.
DATES: Written comments are due by December 1, 2005. Reply comments are
due by February 2, 2006.
ADDRESSES: Electronic submissions must be made through the Copyright
Office website: http://www.copyright.gov/1201/comment_forms; see
section 3 of the SUPPLEMENTARY INFORMATION section for file formats and
other information about electronic and non-electronic filing
requirements. Addresses for nonelectronic submissions are as follows:
If hand delivered by a private party, deliver to Room LM-401 of the
James Madison Memorial Building between 8:30 a.m. and 5 p.m. and the
envelope should be addressed as follows: Office of the General Counsel,
U.S. Copyright Office, James Madison Memorial Building, Room LM-401,
101 Independence
[[Page 57527]]
Avenue, SE., Washington, DC 20559-6000. If hand delivered by a
commercial courier, any comment must be delivered to the Congressional
Courier Acceptance Site located at Second and D Streets, NE.,
Washington, DC, between 8:30 a.m. and 4 p.m. The envelope should be
addressed as follows: Copyright Office General Counsel, Room LM-403,
James Madison Memorial Building, 101 Independence Avenue, SE.,
Washington DC. If delivered by means of the United States Postal
Service (see section 3 of the SUPPLEMENTARY INFORMATION about mail
screening and possible delays), address to David O. Carson, General
Counsel, Copyright GC/I&R, PO Box 70400, Washington, DC 20024-0400. See
SUPPLEMENTARY INFORMATION section for information about requirements
and formats of submissions. Comments may not be delivered by means of
overnight delivery services such as Federal Express, United Parcel
Service, etc., due to delays in processing receipt of such deliveries.
FOR FURTHER INFORMATION CONTACT: Rob Kasunic, Principal Legal Advisor,
Office of the General Counsel, Copyright GC/I&R, PO Box 70400,
Washington, DC 20024-0400. Telephone (202) 707-8380; telefax (202) 707-
8366.
SUPPLEMENTARY INFORMATION:
1. Mandate for Rulemaking Proceeding
The Digital Millennium Copyright Act, Pub. L. 105-304 (1998),
amended title 17 of the United States Code to add a new Chapter 12,
which among other things prohibits circumvention of access control
technologies employed by or on behalf of copyright owners to protect
their works. Specifically, subsection 1201(a)(1)(A) provides, inter
alia, that ``No person shall circumvent a technological measure that
effectively controls access to a work protected under this title.''
Subparagraph (B) limits this prohibition. It provides that
prohibition against circumvention ``shall not apply to persons who are
users of a copyrighted work which is in a particular class of works, if
such persons are, or are likely to be in the succeeding 3-year period,
adversely affected by virtue of such prohibition in their ability to
make noninfringing uses of that particular class of works under this
title'' as determined in this rulemaking. This prohibition on
circumvention became effective two years after the date of enactment,
on October 28, 2000.
At the end of the 2-year period between the enactment and effective
date of the provision, the Librarian of Congress made an initial
determination as to classes of works to be exempted from the
prohibition for the first triennial period. Exemption to Prohibition on
Circumvention of Copyright Protection Systems for Access Control
Technologies, 65 FR 64556, 64564 (2000) (hereinafter Final Reg. 2000).
The exemptions promulgated by the Librarian in the first rulemaking
remained in effect through October 27, 2003. On October 28, 2003, the
Librarian of Congress announced the second determination as to classes
of works to be exempted from the prohibition. Exemption to Prohibition
on Circumvention of Copyright Protection Systems for Access Control
Technologies, 68 FR 62011, 62013 (2003) (hereinafter Final Reg. 2003).
The four exemptions created in the second anticircumvention rulemaking
will be in effect through October 27, 2006 and any exemptions
promulgated as a result of the third anticircumvention rulemaking will
take effect the next day for a 3-year period lasting through October
27, 2009. Both determinations by the Librarian of Congress were made
upon the recommendation of the Register of Copyrights following
extensive rulemaking proceedings. This notice announces the initiation
of the third section 1201 rulemaking required under 17 U.S.C.
1201(a)(1)(C).
2. Background
Title I of the Digital Millennium Copyright Act was, inter alia,
the congressional fulfillment of obligations of the United States under
the WIPO Copyright Treaty and the WIPO Performances and Phonograms
Treaty. For additional information on the historical background and the
legislative history of Title I, see Exemption to Prohibition on
Circumvention of Copyright Protection Systems for Access Control
Technologies, 64 FR 66139, 66140 (1999) [http://www.loc.gov/copyright/fedreg/1999/64fr66139.html
].
Section 1201 of title 17 of the United States Code prohibits two
general types of activity: (1) the conduct of ``circumvention'' of
technological protection measures that control access to copyrighted
works and (2) trafficking in any technology, product, service, device,
component, or part thereof that protects either ``access'' to a
copyrighted work or that protects the ``rights of the copyright
owner,'' if that device or service meets one of three conditions. The
first type of activity, the conduct of circumvention, is prohibited in
section 1201(a)(1). The latter activities, trafficking in devices or
services that circumvent ``access'' or ``the rights of the copyright
owner'' are contained in sections 1201(a)(2) and 1201(b), respectively.
In addition to these prohibitions, section 1201 also includes a series
of section-specific limitations and exemptions to the prohibitions of
section 1201.
The Anticircumvention Provision At Issue
Subsection 1201(a)(1) applies when a person who is not authorized
by the copyright owner to gain access to a work does so by
circumventing a technological measure put in place with the authority
of the copyright owner to control access to the work. See the Report of
the House Committee on Commerce on the Digital Millennium Copyright Act
of 1998, H.R. Rep. No. 105-551, pt. 2, at 36 (1998) (hereinafter
Commerce Comm. Report).
That section provides that ``No person shall circumvent a
technological measure that effectively controls access to a work
protected under this title.'' 17 U.S.C. 1201(a)(1)(A) (1998).
The relevant terms are defined:
(3) As used in this subsection-
(A) to ``circumvent a technological measure'' means to descramble a
scrambled work, to decrypt an encrypted work, or otherwise to avoid,
bypass, remove, deactivate, or impair a technological measure, without
the authority of the copyright owner; and
(B) a technological measure ``effectively controls access to a
work'' if the measure, in the ordinary course of its operation,
requires the application of information, or a process or a treatment,
with the authority of the copyright owner, to gain access to the work.
17 U.S.C. 1201(a)(3).
Scope of the Rulemaking
The statutory focus of this rulemaking is limited to one subsection
of section 1201: the prohibition on the conduct of circumvention of
technological measures that control access to copyrighted works. 17
U.S.C. 1201(a)(1)(C) [http://www.copyright.gov/title17/92chap12.html
1201]. The Librarian of Congress has no authority
to limit either of the anti-trafficking provisions contained in
subsections 1201(a)(2) or 1201(b). 17 U.S.C. 1201(a)(1)(E). Moreover,
for a proposed exemption to be considered in this rulemaking, there
must be a causal connection between the prohibition in 1201(a)(1) and
the adverse effect on noninfringing uses.
This rulemaking addresses only the prohibition on the conduct of
circumventing measures that control ``access'' to copyrighted
works,e.g., prohibiting unauthorized decryption of an encrypted work or
bypassing
[[Page 57528]]
passwords used to restrict access to copyrighted works. The structure
of section 1201 is such that there exists no comparable prohibition on
the conduct of circumventing technological measures that protect the
``rights of the copyright owner'' in 1201(b), e.g., the section 106
rights to reproduce, adapt, distribute, publicly perform, or publicly
display a work. Circumventing a technological measure that protects
these section 106 rights of the copyright owner is governed not by
section 1201, but rather by the traditional copyright rights and the
applicable limitations in the Copyright Act. For example, if a person
circumvents a measure that prohibits printing or saving an electronic
copy of an article, there is no provision in section 1201 that
precludes this activity. Instead, it would be actionable as copyright
infringement of the section 106 right of reproduction unless an
applicable limitation applied, e.g., fair use. Since section 1201
contains no prohibition on the circumvention of technological measures
that protect the ``rights of the copyright owner,'' sometimes referred
to as ``use'' or ``copy'' control measures, any effect these measures
may have on noninfringing uses would not be attributable to a section
1201 prohibition.
On the other hand, because there is a prohibition on the act of
circumventing a technological measure that controls access to a work,
and since traditional Copyright Act limitations are not defenses to the
act of circumventing a technological measure that controls access,
Congress chose to create the current rulemaking proceeding as a ``fail-
safe mechanism'' to monitor the effect of the anticircumvention
provision in 1201(a)(1)(A). Commerce Comm. Report, at 36. This
anticircumvention rulemaking is authorized to monitor the effect of the
prohibition on ``access'' circumvention on noninfringing uses of
copyrighted works. In this triennial rulemaking proceeding, effects on
noninfringing uses that are unrelated to section 1201(a)(1)(A) may not
be considered. 17 U.S.C. 1201(a)(1)(C).
Burden of Proof
In the first rulemaking, the Register concluded from the language
of the statute and the legislative history that a determination to
exempt a class of works from the prohibition on circumvention must be
based on a showing that the prohibition has or is likely to have a
substantial adverse effect on noninfringing uses of a particular class
of works. It was determined that proponents of an exemption bear the
burden of proof that an exemption is warranted for a particular class
of works and that the prohibition is presumed to apply to all classes
of works unless an adverse impact has been shown. See Commerce Comm.
Report, at 37 and see also, Final Reg. 2000, at 64558.
Some have objected to the Register's use of a standard that
requires a showing of a ``substantial'' adverse effect on noninfringing
uses, and have asserted that the Register has increased the evidentiary
standard higher than the statutory requirement. In the most recent
rulemaking in 2003, the Register addressed this criticism and found it
to be misplaced, noting that
Use of the term ``substantial'' does not impose a ``heightened''
requirement; it imposes the requirement found throughout the
legislative history, which is variously stated as ``substantial
adverse impact,'' ``distinct, verifiable, and measurable impacts,''
and more than ``de minimis impacts.'' As is apparent from the
dictionary definition of ``substantial,'' and the Supreme Court's
treatment of the term (e.g., in its articulation of the substantial
evidence rule), requiring that one's proof be ``substantial'' simply
means that it must have substance.
Final Reg. 2003, at 62013.
Whatever label one uses, proponents of an exemption bear the burden
of providing sufficient evidence under the foregoing standards to
support an exemption. How much evidence is sufficient will vary with
the factual context of the alleged harm. Further, proof of harm is
never the only consideration in the rulemaking process, and therefore
the sufficiency of the harm will always be relative to other
considerations, such as, the availability of the affected works for
use, the availability of the works for nonprofit archival,
preservation, and educational purposes, the impact that the prohibition
has on criticism, comment, news reporting, teaching, scholarship, or
research, the effect of circumvention on the market for or value of
copyrighted works, and any other relevant factors.
In order to meet the burden of proof, proponents of an exemption
must provide evidence either that actual harm exists or that it is
``likely'' to occur in the ensuing 3-year period. Actual instances of
verifiable problems occurring in the marketplace are generally
necessary in order to prove actual harm. The most compelling cases of
actual harm will be based on first-hand knowledge of such problems.
Circumstantial evidence may also support a claim of present or likely
harm, but such evidence must also reasonably demonstrate that a measure
protecting access was the cause of the harm and that the adversely
affected use was, in fact, noninfringing. ``Likely'' adverse effects
may also support an exemption. This standard of ``likelihood'' requires
proof that adverse effects are more likely than not to occur. Claims
based on ``likely'' adverse effects cannot be supported by speculation
alone. The House Manager's Report stated that an exemption based on
``likely'' future adverse impacts during the applicable period should
only be made ``in extraordinary circumstances in which the evidence of
likelihood is highly specific, strong and persuasive.'' Staff of House
Committee on the Judiciary, 105th Cong., Section-By-Section Analysis of
H.R. 2281 as Passed by the United States House of Representatives on
August 4, 1998, (hereinafter House Manager's Report), at 6. This
statement could be interpreted as raising the burden beyond a standard
of a preponderance of the evidence. The statutory language enacted,
however, - ``whether 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'' - does not specify a standard beyond mere
likelihood and thus the preponderance standard will be applied by the
Register. Nevertheless, as the Register's final recommendation of 2000
explained, the expectation of ``distinct, verifiable and measurable
impacts'' in the legislative history as to actual harm suggests that
conjecture alone would be insufficient to support a finding of
``likely'' adverse effect. Final Reg. 2000, at 64559. Although a
showing of ``likely'' adverse impact will necessarily involve
prediction, the burden of proving that the expected adverse effect is
more likely than other possible outcomes rests firmly on the proponent
of the exemption.
The identification of existing or likely problems is not, however,
the end of the analysis. In order for an exemption of a particular
class of works to be warranted, a proponent must show that such
problems warrant an exemption in light of all of the relevant facts.
The identification of isolated or anecdotal problems will be generally
insufficient to warrant an exemption of a class of works. Similarly,
the mere fact that the digital format would be more convenient to use
for noninfringing purposes is generally insufficient factual support
for an exemption. Further, purely theoretical critiques of Section 1201
will never satisfy the requisite showing. House Manager's Report, at 6.
Proponents of exemptions must show sufficient harm to warrant an
exemption
[[Page 57529]]
from the default rule established by Congress - the prohibition in
circumvention.
There is a presumption that the Sec. 1201 prohibition will apply
to any and all classes of works, including previously exempted classes,
unless a new showing is made that an exemption is warranted. Final Reg.
2000, at 64558. Exemptions are reviewed de novo and prior exemptions
will expire unless sufficient new evidence is presented in each
rulemaking that the prohibition has or is likely to have an adverse
effect on noninfringing uses. The facts and argument that supported an
exemption during any given 3-year period may be insufficient within the
context of the marketplace in a different 3-year period. Similarly,
proposals that were not found to warrant an exemption in any particular
rulemaking could find factual support in the context of another
rulemaking.
Availability of Works in Unprotected Formats
Other statutory considerations must also be balanced with evidence
of adverse effects attributable to the prohibition. In making her
recommendation to the Librarian, the Register is instructed to consider
the availability for use of copyrighted works. 17 U.S.C.
1201(a)(1)(C)(i). This inquiry demands that the Register consider
whether ``works'' protected by technological measures that control
access are also available in the marketplace in formats that are
unprotected. The fact that a ``work'' (in contrast to a particular
``copy'' of a work) is available in a format without technological
protection measures may be significant because the unprotected formats
might allow the public to make noninfringing uses of the work even
though other formats of the work would not. For example, in the first
rulemaking, many users claimed that the technological measures on
motion pictures contained on Digital Versatile Disks (DVDs) restricted
noninfringing uses of the motion pictures. A balancing consideration
was that the record revealed that at that time, the vast majority of
these works were also available in analog format on VHS tapes. Final
Reg. 2000, at 64568. Thus, the full range of availability of a work for
use is necessary to consider in assessing the need for an exemption to
the prohibition on circumvention.
Another consideration relating to the availability for use of
copyrighted works is whether the measure supports a distribution model
that benefits the public generally. For example, while a measure may
limit the length of time that a work may be accessed (time-limited) or
may limit the scope of access (scope-limited), e.g., access to only a
portion of work, those limitations may benefit the public by providing
``use-facilitating'' models that allow users to obtain access to works
at a lower cost than they would otherwise be able to obtain were such
restrictions not in place. If there is sufficient evidence that
particular classes of works would not be offered at all without the
protection afforded by technological protection measures that control
access, this evidence must be considered. House Manager's Report, at 6.
Accord, Final Reg. 2000, at 64559. Thus, the Register's inquiry must
assess any benefits to the public resulting from the prohibition as
well as the adverse effects that may be established.
The Scope of the Term ``Class of Works''
Section 1201 does not define a critical term for the rulemaking
process: ``class of works.'' In the first rulemaking, the Register
elicited views on the scope and meaning of this term. After review of
the statutory language, the legislative history and the extensive
record in the proceeding [see Final Reg. 2000, at 64557 for a
description of the record in the 2000 rulemaking proceeding], the
Register reached certain conclusions on the scope of this term and
requested further congressional guidance. [For a more detailed
discussion, see Final Reg. 2000, at 64559.]
The Register found that the statutory language required that the
Librarian identify ``classes of works'' based upon attributes of the
works themselves, and not by reference to some external criteria such
as the intended use or users of the works. The phrase ``class of
works'' connotes that the shared, common attributes of the ``class''
relate to the nature of authorship in the ``works.'' Thus, a ``class of
works'' was intended to be a ``narrow and focused subset of the broad
categories of works of authorship * * * identified in section 102.''
Commerce Comm. Report, at 38. The starting point for a proposed
exemption of a particular class of works must be the section 102
categories of authorship: literary works; musical works; dramatic
works; pantomimes and choreographic works; pictorial, graphic and
sculptural works; motion pictures and other audiovisual works; sound
recordings; and architectural works.
This determination is supported by the House Manager's Report,
which discussed the importance of appropriately defining the proper
scope of the exemption. House Manager's Report, at 7. The legislative
history stated that it would be highly unlikely for all literary works
to be adversely affected by the prohibition and therefore, determining
an appropriate subcategory of the works in this category would be the
goal of the rulemaking. Id.
The Register concluded that the starting point for identifying a
particular ``class of works'' to be exempted must be one of the section
102 categories. Final Reg. 2000, at 64559-64561. From that starting
point, it is likely that the scope or boundaries of a particular class
would need to be further limited to remedy the particular harm to
noninfringing uses identified in the rulemaking.
As a result of the Register's recommendation in 2003,the Librarian
of Congress decided that four classes of works should be exempted:
(1) Compilations consisting of lists of Internet locations blocked
by commercially marketed filtering software applications that are
intended to prevent access to domains, websites or portions of
websites, but not including lists of Internet locations blocked by
software applications that operate exclusively to protect against
damage to a computer or a computer network or lists of Internet
locations blocked by software applications that operate exclusively
to prevent receipt of email.
(2) Computer programs protected by dongles that prevent access due
to malfunction or damage and which are obsolete.
(3) Computer programs and video games distributed in formats that
have become obsolete and which require the original media or
hardware as a condition of access. A format shall be considered
obsolete if the machine or system necessary to render perceptible a
work stored in that format is no longer manufactured or is no longer
reasonably available in the commercial marketplace.
(4) Literary works distributed in ebook format when all existing
ebook editions of the work (including digital text editions made
available by authorized entities) contain access controls that
prevent the enabling of the ebook's read-aloud function and that
prevent the enabling of screen readers to render the text into a
specialized format.
Commenters should familiarize themselves with the Register's
recommendation in the prior rulemaking proceedings, since many of the
issues addressed may provide guidance for current showings either for
or against an exemption.
This notice requests written comments from all interested parties.
In addition to the necessary showing discussed above, in order to make
a prima facie case for a proposed exemption, at least three critical
points should be established.
First, a proponent must attempt to identify the specific
technological measure that is the causal source of the
[[Page 57530]]
alleged problem, and show why that technological measure ``effectively
controls access to a [copyrighted] work.''
Second, a proponent must specifically explain what noninfringing
activity the prohibition is adversely affecting.
Third, a proponent must establish that the prevented activity is,
in fact, a noninfringing use under current law.
The nature of the Librarian's inquiry is further delineated by the
statutory areas to be examined:
(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.
17 U.S.C. 1201(a)(1)(C).
These statutory considerations require examination and careful
balancing. The harm identified by a proponent of an exemption must be
balanced against the harm that would result from an exemption. In
certain circumstances, an exemption could have a greater adverse effect
on the public than would the adverse effects on noninfringing uses
identified. The ultimate determination of the Librarian must take all
of these factors into consideration. Therefore, a commenter's analysis
should also address these considerations.
For the entire record of the two previous anticircumvention
rulemakings, including all comments, testimony and notices published,
see the Copyright Office's website at: http://www.loc.gov/copyright/1201/
.
3. Written Comments
In the first rulemaking, the Register determined that the burden of
proof is on the proponent of an exemption to come forward with evidence
supporting an exemption for a particular class of works. In this third
triennial rulemaking, the Register shall continue with the procedure
adopted in the second rulemaking: Comments submitted in the initial
comment period should be confined to proposals for exempted classes.
They should specifically identify particular classes of works adversely
affected by the prohibition and provide evidentiary support for the
need for the proposed exemptions.
For each particular class of works that a commenter proposes for
exemption, the commenter should first identify that class, followed by
a summary of the argument in favor of exempting that proposed class.
The commenter should then specify the facts and evidence providing a
basis for this exemption. Finally, the commenter should state any legal
arguments in support of the exemption. This format of class/summary/
facts/argument should be sequentially followed for each class of work
proposed as necessary.
As discussed above, the best evidence in support of an exemption
would consist of concrete examples or specific instances in which the
prohibition on circumvention of technological measures protecting
access has had or is likely to have an adverse effect on noninfringing
uses. It would also be useful for the commenter to quantify the adverse
effects in order to explain the scope of the present or likely problem.
In the reply comments, persons who oppose or support any exemptions
proposed in the initial comments will have the opportunity to respond
to the proposals made in the initial comments and to provide factual
information and legal argument addressing whether or not a proposed
exemption should be adopted. Since the reply comments are intended to
be responsive to the initial comments, reply commenters must identify
which proposal(s) they are responding to, whether in opposition,
support, amplification or correction. As with initial comments, reply
comments should first identify the proposed class to which the reply is
responsive, provide a summary of the argument, and then provide the
factual and/or legal support for their argument. This format of class/
summary/facts and/or legal argument should be repeated for each reply
to a particular class of work proposed.
The Copyright Office intends to place the comments and reply
comments that are submitted in this proceeding on its public website
(http://www.copyright.gov/1201).\1\ Regardless of the mode of
submission, all comments must, at a minimum, contain the legal name of
the submitter and the entity, if any, on whose behalf the comment was
submitted. If persons do not wish to have their address, telephone
number, or email address publicly displayed on the Office's website,
comments should not include such information on the document itself but
should only include the legal name of the commenter. The Office prefers
that comments and reply comments be submitted in electronic form.
However, the Office recognizes that persons may be unable to submit
their comments through the Office's website or to deliver their
comments in person. Therefore, comments may also be delivered through
the United States Postal Service, addressed to the General Counsel,
Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, DC
20024-0400. Due to mail screening on Capitol Hill and possible delays
in delivery, submission by means of the United States Postal Service is
discouraged and there is a risk that the comment will not be received
at the Copyright Office in time to be considered. Electronic filing or
hand-delivery will help insure timely receipt of comments by the
Office. Electronic comments successfully submitted through the Office's
website will generate a confirmation receipt to the submitter and
submitters hand-delivering comments may request a date stamp on an
extra copy provided by the submitter.
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\1\ If a comment includes attached material that appears to be
protected by copyright and there is no indication that the material
was attached with permission of the copyright owner, the attached
material will not be placed on the Office's website.
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Submission of Comments
Comments may be submitted in the following ways: If submitted
through the Copyright Office's website: The Copyright Office's website
will contain a submission page at: http://www.copyright.gov/1201/comment_forms.
Approximately thirty days prior to each applicable
deadline (see DATES), the form page will be activated on the Copyright
Office website allowing information to be entered into the required
fields, including the name of the person making the submission, mailing
address, telephone number, and email address. There will also be non-
required fields for, e.g., the commenter's title, the organization that
the commenter is representing, whether the commenter is likely to
request to testify at public hearings and if so, whether the commenter
is likely to prefer to testify in Washington, DC or a location in
California. For initial comments, there will be two additional fields
required: 1) the proposed class or classes of copyrighted work(s) to be
exempted, and 2) a brief summary of the argument(s). For reply
comments, there will be two similar required fields: 1) the class or
classes to which the reply is responsive, including the initial comment
numbers, and 2) a brief summary of the argument.
The comment or reply comment itself must be sent as an attachment,
and must be in a single file in either Adobe Portable Document File
(PDF) format (preferred), Microsoft Word Version
[[Page 57531]]
2003 or earlier, WordPerfect 9.0 or earlier, Rich Text Format (RTF), or
ASCII text file format. There will be a browse button on the form that
will allow submitters to attach the comment file to the form and then
to submit the completed form to the Office. The personal information
entered into the required fields on the form page will not be publicly
posted on the Copyright Office website, but the Office intends to post
on its website the proposed class and the summary of the argument, as
well as the entire, attached comment document. Only the commenter's
name is required on the comment document itself and a commenter who
does not want other personal information posted on the Office's website
should avoid including other private information on the comment itself.
Except in exceptional circumstances, changes to the submitted comment
will not be allowed and it will become a part of the permanent public
record of this rulemaking.
If by means of the United States Postal Service or hand delivery:
Send, to the appropriate address listed above, two copies, each on a
3.5-inch write-protected diskette or CD-ROM, labeled with the legal
name of the person making the submission and the entity on whose behalf
the comment was submitted, if any. The document itself must be in a
single file in either Adobe Portable Document File (PDF) format
(preferred), Microsoft Word Version 2003 or earlier, WordPerfect
Version 9 or earlier, Rich Text Format (RTF), or ASCII text file
document. If the comment is hand delivered or mailed to the Office and
the submitter does not wish to have the address, telephone number, or
email address publicly displayed on the Office's website, the comment
should not include such information on the document itself, but only
the name and affiliation, if any, of the commenter. In that case, a
cover letter should be included with the comment that contains the
commenter's address, phone number, email address, and for initial
comments, the proposed class of copyrighted work to be exempted and a
brief summary of the argument.
Anyone who is unable to submit a comment in electronic form (on the
website as an attachment or by means of the United States Postal
Service or hand delivery on disk or CD-ROM) should submit an original
and fifteen paper copies by hand or by means of the United States
Postal Service to the appropriate address listed above. It may not be
feasible for the Office to place these comments on its website.
General Requirements for all submissions: All submissions (in
either electronic or non-electronic form delivered through the website,
by means of the United States Postal Service by hand-delivery or by
courier) must contain on the comment itself, the name of the person
making the submission and his or her title and affiliation, if the
comment is being submitted on behalf of that organization. The mailing
address, telephone number, telefax number, if any, and email address
need not be included on the comment itself, but must be included in
some form, e.g., on the website form or in a cover letter with the
submission. All submissions must also include the class/summary/factual
and/or legal argument format in the comment itself for each class of
work proposed or for each reply to a proposal.
Initial comments and reply comments will be accepted for a 30-day
period in each round, and a form will be placed on the Copyright Office
website at least 30 days prior to the deadline for submission. Initial
comments will be accepted from November 2, 2005 until December 1, 2005,
at 5:00 P.M. Eastern Standard Time, at which time the submission form
will be removed from the website. Reply comments will be accepted from
January 4, 2006 until February 2, 2006, at 5:00 P.M. Eastern Standard
Time.
4. Hearings and Further Comments
The Register also plans on holding public hearings in the Spring
after receipt of the comments and reply comments. The tentative dates
for the Washington, DC hearings are currently March 29 and 31, 2006,
and April 3 and 4, 2006, and the hearings most likely will take place
in the James Madison Memorial Building of the Library of Congress in
Washington, DC. The dates and location of hearings for the West Coast
have yet to be decided. A separate notice for details on all hearings
in this rulemaking proceeding will be published at a later time in the
Federal Register and on the Copyright Office's website. In order to
assist the Copyright Office in identifying the number of days for
hearings, the comment and reply comment form page will contain non-
required fields asking whether the commenter is likely to request to
testify and if so, in which location. Formal requests to testify will
be solicited early in 2006.
To provide sufficient flexibility in this proceeding, in the event
that unforeseen developments occur that would significantly affect the
Register's recommendation, an opportunity to petition the Register for
consideration of new information will be made available after the
deadlines specified. A petition, including proposed new classes of
works to be exempted, must be in writing and must set forth the reasons
why the information could not have been made available earlier and why
it should be considered by the Register after the deadline. A petition
must also be accompanied by fifteen copies of any new proposed
exemption that includes the proposed class of works to be exempted, a
summary of the argument, the factual basis for such an exemption and
the legal argument supporting such an exemption. These materials must
be delivered to the Copyright Office at the address listed above. The
Register will make a determination whether to accept such a petition
based on the stage of the rulemaking process at which the request is
made and the merits of the petition. If a petition is accepted, the
Register will announce deadlines for comments in response to the
petition.
Dated: September 27, 2005
Marybeth Peters,
Register of Copyrights.
[FR Doc. 05-19721 Filed 9-30-05; 8:45 am]
BILLING CODE 1410-33-S