[Federal Register: November 24, 1999 (Volume 64, Number 226)]
[Proposed Rules]
[Page 66139-66143]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 99-7]
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 to make recommendations in accordance with
section 1201(a)(1) of the Copyright Act, 17 U.S.C. 1201(a)(1), 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 circumventing a technological measure that
controls access to a copyrighted work. The purpose of this rulemaking
proceeding is to determine whether there are classes of works as to
which users are, or are likely to be, adversely affected in their
ability to make noninfringing uses if they are prohibited from
circumventing such technological measures. 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
information and views on whether noninfringing uses of certain classes
of works are, or are likely to be, adversely affected by such
prohibition.
DATES: Written comments are due by February 10, 2000. Reply comments
are due by March 13, 2000.
ADDRESSES: Submissions by electronic mail should be made to
``1201@loc.gov''; see SUPPLEMENTARY INFORMATION section for file
formats and other information about electronic filing. If delivered by
hand, comments should be delivered to the Office of the General
Counsel, Copyright Office, LM-403, James Madison Memorial Building, 101
Independence Avenue, SE., Washington DC. If delivered by mail, comments
should be addressed to David O. Carson, General Counsel, Copyright GC/
I&R, PO Box 70400, Southwest Station, Washington, DC 20024. See
SUPPLEMENTARY INFORMATION section for information about formats of
submissions.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
[[Page 66140]]
Charlotte Douglass, Office of the General Counsel, Copyright GC/I&R, PO
Box 70400, Southwest Station, Washington, DC 20024. Telephone (202)
707-8380; telefax (202) 707-8366.
SUPPLEMENTARY INFORMATION:
1. Written Comments
The Copyright Office will be placing all comments and reply
comments that are submitted in electronic form on its Website (http://
www.loc.gov/copyright/1201). Because of this, the
Office prefers that
comments and reply comments be submitted in electronic form, in one of
the following formats:
If by electronic mail: Send to ``1201@loc.gov' '' a message
containing the name of the person making the submission, his or her
title, organization, mailing address, telephone number, telefax number
and e-mail address. The message should also identify the document
clearly as either a comment or reply comment. The document itself must
be sent as a MIME attachment, and must be in a single file in either
Adobe Portable Document File (PDF) format (preferred), or in Microsoft
Word Version 7.0 or earlier, or in WordPerfect 7 or earlier.
If by regular mail or hand delivery: Send, to the appropriate
address listed above, two copies, each on a 3.5-inch write-protected
diskette, labeled with the name of the person making the submission,
his or her title and organization. The document itself must be in a
single file in either Adobe Portable Document File (PDF) format
(preferred), or in Microsoft Word Version 7.0 or earlier, or in
WordPerfect Version 7 or earlier.
Anyone who is unable to submit a comment in electronic form should
submit an original and fifteen paper copies by hand or by mail to the
appropriate address listed above. It may not be feasible for the Office
to place these comments on its website.
All written comments (in electronic or nonelectronic form) should
contain the name of the person making the submission, his or her title,
organization, mailing address, telephone number, telefax number and e-
mail address.
2. Hearings and Further Comments
Following the receipt of reply comments, the Copyright Office will
conduct hearings. The Office will then accept post-hearing written
submissions that relate to matters addressed at the hearings. A hearing
schedule will be announced in the future.
3. Mandate for Rulemaking Proceeding
On October 28, 1998, President Clinton signed into law the Digital
Millennium Copyright Act, Pub. L. 105-304 (1998). Section 103
(subtitled ``Copyright Protection Systems and Copyright Management
Information'') of Title I of the Act added a new Chapter 12 to title 17
United States Code, which among other things prohibits circumvention of
access control technologies employed by or on behalf of copyright
owners to protect their works. Specifically, new 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 anticircumvention ``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 becomes effective two years after the date of enactment,
on October 28, 2000.
During the 2-year period between the enactment and effective date
of the provision, the Librarian of Congress must make the determination
as to classes of works exempted from the prohibition. This
determination will be made upon the recommendation of the Register of
Copyrights in a rulemaking proceeding. The determination thus made will
remain in effect during the succeeding three years. In making her
recommendation, the Register of Copyrights is to consult with the
Assistant Secretary for Communications and Information of the
Department of Commerce and report and comment on the Assistant
Secretary's views. 17 U.S.C. 1201(a)(1)(C).
4. Background
The WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT) require that Contracting Parties provide
adequate legal protection and effective legal remedies against the
circumvention of effective technological measures that authors (or, in
the case of the WPPT, performers and producers of phonograms) use in
connection with the exercise of their rights and that restrict acts
which they have not authorized and are not permitted by law.
In fulfillment of these treaty obligations, Title I of the Digital
Millennium Copyright Act makes it unlawful to defeat technological
protections used by copyright owners to protect their works in digital
environments, adding a new Chapter 12 to title 17, United States Code.
Specifically, subsection (a)(1) of new section 1201 applies when a
person who is not authorized by the copyright owner to gain access to a
work seeks to do so by circumventing a technological measure put in
place by the copyright owner to prevent access to the work. See 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, (hereafter House Manager's Report)
(Representative Coble) 5 (Comm. Print 1998).
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:
[T]o ``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).
Congress found it appropriate to modify the prohibition to assure
that the public will have continued ability to engage in noninfringing
uses of copyrighted works, such as fair use. See H. R. Rep. No. 105-
551, pt. 2, at 36 (1998) (hereinafter Commerce Comm. Report). To that
end, the statute provides that:
The prohibition contained in subparagraph (A) 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 under
subparagraph (C).
17 U.S.C. 1201(a)(1)(B).
The prohibition against circumvention is subject to delayed
implementation in order to permit determination whether users of
particular classes of copyrighted works are likely to be adversely
affected by the prohibition in their ability to make noninfringing
uses. Within two years, upon the recommendation of the
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Register of Copyrights in a rulemaking proceeding, the Librarian of
Congress must determine whether to exempt certain classes of works
(which he must identify) from the application of the anticircumvention
prohibition due to such adverse effects.
Subparagraph (C) of section 1201(a)(1) provides that:
During the 2-year period described in subparagraph(A), and
during each succeeding 3-year period, the Librarian of Congress,
upon the recommendation of the Register of Copyrights, who shall
consult with the Assistant Secretary for Communications and
Information of the Department of Commerce and report and comment on
his or her views in making such recommendation, shall make the
determination in a rulemaking proceeding on the record for purposes
of subparagraph (B) of 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 under subparagraph (A)
in their ability to make noninfringing uses under this title of a
particular class of copyrighted works.
17 U.S.C. 1201(a)(1)(C).
The Conference Report clarifies the procedure to be used in
conducting the rulemaking:
It is the intention of the conferees that, as is typical with
other rulemaking under title 17, and in recognition of the expertise
of the Copyright Office, 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.
H.R. Rep. No. 105-796, at 64 (1998).
Thus, the Register is to conduct a rulemaking proceeding,
soliciting public comment and consulting with the Assistant Secretary
of Commerce for Communications and Information, and make a
recommendation to the Librarian, who by October 28, 2000, must make a
determination whether any classes of copyrighted works should be exempt
from the statutory prohibition against circumvention during the three
years commencing on that date.
The primary responsibility of the Register and the Librarian in
this respect is to assess whether the implementation of technological
protection measures that effectively control access to copyrighted
works is diminishing the ability of individuals to use copyrighted
works in ways that are otherwise lawful. Commerce Comm. Report, at 37.
As examples of technological protection measures in effect today, the
Commerce Committee offered the use of ``password codes'' to control
authorized access to computer programs, for example, or encryption or
scrambling of cable programming, videocassettes, and CD-ROMs. Id.
Congress intended that the Register and Librarian solicit input
that will enable them to consider a broad range of past or likely
future adverse impacts. Thus, 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. The nature of the Librarian's
inquiry is delineated in 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).
Substantial Effect on Use
It is clear from the legislative history that a determination to
exempt a class of works from the prohibition on circumvention must be
based on a determination that the prohibition has a substantial adverse
effect on noninfringing use of that particular class of works. The
Commerce Committee noted that the rulemaking proceeding is to focus on
``distinct, verifiable, and measurable impacts, and should not be based
upon de minimis impacts.'' Commerce Comm. Report, at 37. Similarly, the
Manager's Report stated that ``[t]he focus of the rulemaking proceeding
must remain on whether the prohibition on circumvention of
technological protection measures (such as encryption or scrambling)
has caused any substantial adverse impact on the ability of users to
make non-infringing uses,'' and suggested that ``mere inconveniences,
or individual cases * * * do not rise to the level of a substantial
adverse impact.'' House Manager's Report, at 6.
Causal Connection
The legislative history also requires the Register and Librarian to
disregard any adverse effects that are caused by factors other than the
prohibition against circumvention. The House Manager's Report is
instructive:
The focus of the rulemaking proceeding must remain on whether
the prohibition on circumvention of technological protection
measures (such as encryption or scrambling) has caused any
substantial adverse impact on the ability of users to make non-
infringing uses. Adverse impacts that flow from other sources * * *
or that are not clearly attributable to such a prohibition, are
outside the scope of the rulemaking.
House Manager's Report, at 6. The House Commerce Committee came to a
similar conclusion: ``Adverse impacts that flow from other sources, or
that are not clearly attributable to implementation of a technological
protection measure, are outside the scope of the rulemaking.'' Commerce
Comm. Report, at 37.
Some technological protection measures may mitigate adverse
effects. Along those lines, the Librarian must also seek information
about positive impacts of technological access control measures. The
House Manager's Report notes that:
In assessing the impact of the implementation of technological
measures, and of the law against their circumvention, the rule-
making proceedings should consider the positive as well as the
adverse effects of these technologies on the availability of
copyrighted materials. The technological measures--such as
encryption, scrambling, and electronic envelopes--that this bill
protects can be deployed, not only to prevent piracy and other
economically harmful unauthorized uses of copyrighted materials, but
also to support new ways of disseminating copyrighted materials to
users, and to safeguard the availability of legitimate uses of those
materials by individuals.
House Manager's Report, at 6.
Another mitigating factor may arise when a work as to which the
copyright owner has instituted a technological control is also
available in formats that are not subject to technological protections.
For example, a work may be available in electronic format only in
encrypted form, but may also be available in traditional hard copy
format which has no such technological restrictions on access. The
availability without restriction in the latter format may alleviate any
adverse effect that would otherwise result from the technological
controls utilized in the electronic format. The Librarian is to
consider the availability of works in such other formats. Id. at 7.
The requirements that proponents of an exemption demonstrate both
causality and substantial adverse effects on noninfringing uses also
apply to the determination whether users of works ``are likely to be''
affected adversely in the three years following the conclusion of the
rulemaking. Proponents who are unable to satisfy those burdens in the
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current rulemaking will have the opportunity to make their cases in
each of the triennial proceedings that will succeed it.
Scope of ``Class of Copyrighted Works''
A major consideration is to determine how to define the scope of
boundaries of a ``particular class'' of copyrighted works. This inquiry
seeks to elicit information to assist the Librarian in addressing that
ultimate question.
The House Manager's Report advises that the scope of ``class of
works'' is narrower than the category of works set forth in 17 U.S.C.
102(a). For example, it notes that within the category of literary
works, one finds prose journals, periodicals, and books as well as
computer programs, and concludes that it is unlikely that the impact on
prohibiting circumvention of access control technologies will be the
same for scientific journals as it is for computer operating systems.
Therefore, all of these types of literary works most likely would not
fall within the same class of works for purposes of this section
1201(a)(1)(A) determination. Id. at 7. The Commerce Committee Report
concurs that ``the `particular class of copyrighted works' (should) be
a narrow and focused subset of the broad categories of works of
authorship than is (sic) identified in Section 102 of the Copyright Act
(17 U.S.C. 102).'' Commerce Comm. Report, at 38.
Nevertheless, the Judiciary Committee cautioned against drawing the
categories too narrowly, as would be its conclusion if, for example,
particular genres of motion pictures were to be divided into thematic
categories such as Westerns, comedies or live action dramas. House
Manager's Report, at 7.
5. Specific Questions
The Office seeks comment on the following specific questions.
Persons submitting comments need not address all questions, but are
encouraged to respond to those as to which they have particular
knowledge or information. Persons submitting comments are encouraged to
submit concrete evidence, examples and data supporting their responses
to these questions. Such submissions will carry greater weight than
unsupported allegations and predictions.
In response to each question, persons submitting comments are
requested to distinguish between (a) their response with respect to the
current state of affairs, and (b) their response with respect to the
state of affairs that is likely to exist during the period between
October 28, 2000 and October 28, 2003. For example, in responding to
Question No. 3, persons submitting comments are requested to state (a)
what technological measures that effectively control access to
copyrighted works exist today, and (b) what new technological measures
that effectively control access to copyrighted works are likely to be
introduced between October 28, 2000 and October 28, 2003. In discussing
the state of affairs that is likely to exist during the period between
October 28, 2000 and October 28, 2003, persons submitting comments
should explain the basis for their projections.
A. Technological Measures
1. What technological measures that effectively control access to
copyrighted works exist today?
2. Do different technological measures have different effects on
the ability of users to make noninfringing uses? Can and should the
Librarian take account of those different effects in determining
whether to exempt any classes of works from the anticircumvention
provisions of section 1201? If so, how? In determining what constitutes
a class of works?
B. Availability of Works
3. How has the use of technological measures that effectively
control access to copyrighted works affected the availability of such
works to persons who are or desire to be lawful users of such works?
4. Are there specific works or classes of works that, because of
the implementation of such technological measures, have become
unavailable to persons who desire to be lawful users of such works? If
so, identify those works or classes of works and explain how they have
become unavailable.
5. Are there specific works or classes of works which, because of
the implementation of such technological measures, have become less
available to persons who desire to be lawful users of such works? If
so, identify those works or classes of works, explain the ways in which
they have become less available, and explain whether those works or
classes of works are also available in other formats to which such
technological measures have not been applied.
6. If there are works that are available both in formats to which
technological measures have been applied and in formats to which
technological measures have not been applied, to what extent can the
works in the latter formats substitute for the works in the formats to
which technological measures have been applied?
7. Are there works or classes of works that are available only
electronically and only in formats to which such technological measures
have been applied? If so, what are they?
C. Availability of Works for Nonprofit Archival, Preservation, and
Educational Purposes
8. Has the use of technological measures that effectively control
access to copyrighted works affected the availability of such works for
nonprofit archival purposes? If so, how? Are there specific works or
classes of works that have been affected in this respect? If so,
identify them, explain how they have been affected, and explain whether
those works or classes of works are also available in other formats to
which such technological measures have not been applied.
9. Has the use of technological measures that effectively control
access to copyrighted works created problems with respect to the
preservation of such works? If so, how? Are there specific works or
classes of works that have been affected in this respect? If so,
identify them and explain how they have been affected.
10. Has the use of technological measures that effectively control
access to copyrighted works affected the availability of such works for
nonprofit educational purposes? If so, how? Are there specific works or
classes of works that have been affected in this respect? If so,
identify them, explain how they have been affected, and explain whether
those works or classes of works are also available in other formats to
which such technological measures have not been applied.
11. For purposes of this rulemaking, in classifying works that are
to be exempted from the prohibition against circumvention of
technological measures that control access, should any classes of works
be defined, in part, based on whether the works are being used for
nonprofit archival, preservation, and/or educational purposes? (E.g.,
``new broadcasts'' may not be an exempted class of works, but ``news
broadcasts used in the course of face-to-face teaching activities of a
nonprofit educational institution, in a classroom or similar place of
instruction,'' may be an exempted class.) Explain why or why not.
D. Impact on Criticism, Comment, News Reporting, Teaching, Scholarship,
or Research
12. What impact has the use of technological measures that
effectively control access to copyrighted works had on the ability of
interested persons to engage in criticism, comment, news
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reporting, teaching, scholarship, or research?
13. What impact has the use of technological measures that
effectively control access to copyrighted works had on the ability of
interested persons to engage in noninfringing uses of such works,
including fair use and activities permitted by exemptions prescribed by
law?
14. Are there specific works or classes of works with respect to
which the ability of interested persons to engage in criticism,
comment, news reporting, teaching, scholarship, or research has been
hindered because of the implementation of such technological measures?
If so, identify them, explain how such activities have been hindered,
and explain whether those works or classes of works are also available
in other formats to which such technological measures have not been
applied.
15. Are there specific works or classes of works with respect to
which the ability of interested persons to engage in noninfringing uses
has been hindered because of the implementation of such technological
measures? If so, identify them, explain how such activities have been
hindered, and explain whether those works or classes of works are also
available in other formats to which such technological measures have
not been applied.
16. For purposes of this rulemaking, in classifying works that are
to be exempted from the prohibition against circumvention of
technological measures that control access, should any classes of works
be defined, in part, based on whether the works are being used for
purposes of criticism, comment, news reporting, teaching, scholarship,
or research? Explain why or why not.
17. For purposes of this rulemaking, in classifying works that are
to be exempted from the prohibition against circumvention of
technological measures that control access, should any classes of works
be defined, in part, based on whether the works are being used in ways
that do not constitute copyright infringement, e.g., as fair use or in
a manner permitted by exemptions prescribed by law? Explain why or why
not.
E. Effect of Circumvention on the Market for or Value of Copyrighted
Works
18. In what ways can technological measures that effectively
control access to copyrighted works be circumvented? How widespread is
such circumvention?
19. Has such circumvention (or the likelihood of circumvention) had
any impact on the price of copyrighted works? Please explain.
20. Has such circumvention (or the likelihood of circumvention) had
any impact on the availability of copyrighted works? In particular
formats or in all formats? Please explain.
21. Has such circumvention had any other impact on the marketing of
copyrighted works? If so, please explain the impact and which works or
classes of works have been affected.
22. Do the answers to any of these questions relating to the effect
of circumvention on the market for or value of copyrighted works depend
upon the class of work? Please explain.
F. Other Factors and Questions
23. For purposes of this rulemaking, what criteria should be used
in determining what is a ``class'' of copyrighted works?
24. With respect to any adverse effect on use of or access to
copyrighted works that has been identified in response to any of the
preceding questions, is there an explanation for the adverse effect
other than the presence of technological measures that effectively
control access to copyrighted works?
25. Has the use of technological measures that effectively control
access to copyrighted works resulted in making copyrighted works more
widely available? Please explain.
26. Has the use of technological measures that effectively control
access to copyrighted works resulted in facilitating lawful uses of
copyrighted works?
27. Are there other factors that should be taken into account? If
so, please identify and address those factors.
28. What other comments, if any, do you have?
29. Do you wish to testify at a hearing to be conducted by the
Copyright Office in connection with this rulemaking?
Dated: November 15, 1999.
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 99-30556 Filed 11-23-99; 8:45 am]
BILLING CODE 1410-30-P