80 FR 81369 - Section 1201 Study: Notice and Request for Public Comment
LIBRARY OF CONGRESS
Copyright Office Federal Register Volume 80, Issue 249 (December 29, 2015)
Copyright Office
Federal Register Volume 80, Issue 249 (December 29, 2015)
| Page Range | 81369-81373 | |
| FR Document | 2015-32678 |
[Federal Register Volume 80, Number 249 (Tuesday, December 29, 2015)] [Notices] [Pages 81369-81373] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-32678] ======================================================================= ----------------------------------------------------------------------- LIBRARY OF CONGRESS U.S. Copyright Office [Docket No. 2015-8] Section 1201 Study: Notice and Request for Public Comment AGENCY: U.S. Copyright Office, Library of Congress. ACTION: Notice of inquiry. ----------------------------------------------------------------------- SUMMARY: The United States Copyright Office is undertaking a public study to assess the operation of section 1201 of Title 17, including the triennial rulemaking process established under the DMCA to adopt exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works. To aid this effort, and to ensure thorough assistance to Congress, the Office is seeking public input on a number of key questions. DATES: Written comments must be received no later than 11:59 p.m. Eastern Time on February 25, 2016. Written reply comments must be received no later than 11:59 p.m. Eastern Time on March 25, 2016. The Office will be announcing one or more public meetings, to take place after written comments are received, by separate notice in the future. ADDRESSES: All comments must be submitted electronically. Specific instructions for submitting comments will be posted on the Copyright Office Web site at http://www.copyright.gov/policy/1201 on or before February 1, 2016. To meet accessibility standards, all comments must be provided in a single file not to exceed six megabytes (MB) in one of the following formats: Portable Document File (PDF) format containing searchable, accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a scanned document). All comments must include the name of the submitter and any organization the submitter represents. The Office will post all comments publicly in the form that they are received. If electronic submission of comments is not feasible, please contact the Office using the contact information below for special instructions. FOR FURTHER INFORMATION CONTACT: Regan A. Smith, Associate General Counsel, by email at [email protected] or by telephone at 202-707-8350; or Kevin Amer, Senior Counsel for Policy and International Affairs, by email at [email protected] or by telephone at 202-707-8350. SUPPLEMENTARY INFORMATION: I. Background The Digital Millennium Copyright Act (``DMCA'') has played a pivotal role in the development of the modern digital economy. Enacted in 1998 to implement the United States' obligations under two international treaties,\1\ it is intended to foster the growth of the digital marketplace by ensuring adequate legal protections for copyrighted content.\2\ As envisioned by Congress, the DMCA seeks to balance the interests of copyright owners and users, including the personal interests of consumers, in the digital environment.\3\ In addition to provisions limiting the liability of online service providers,\4\ the DMCA includes provisions prohibiting the circumvention of technological measures used to protect copyrighted works as well as trafficking in anticircumvention devices.\5\ These anticircumvention provisions, codified in section 1201 of the Copyright Act, were the subject of a 2014 hearing held by the House Judiciary Committee's Subcommittee on Courts, Intellectual Property and the Internet as part of its comprehensive review of the nation's copyright law,\6\ and, as discussed below, a recently concluded rulemaking conducted by the Copyright Office. In accordance with the request from the House Judiciary Committee's Ranking Member to the Register of Copyrights at the April 2015 House Judiciary Committee hearing on copyright review, and consistent with the Register's testimony in that hearing that the impact and efficacy of section 1201 merit analysis at this time, the Office is undertaking a study and soliciting public input.\7\ --------------------------------------------------------------------------- \1\ See WIPO Copyright Treaty art. 11, Dec. 20, 1996, 36 I.L.M. 65 (1997); WIPO Performances and Phonograms Treaty art. 18, Dec. 20, 1996, 36 I.L.M. 76 (1997). \2\ See H.R. Rep. No. 105-551, pt. 2, at 23 (1998). \3\ See id. at 26. \4\ See 17 U.S.C. 512. \5\ The DMCA also established protections for the integrity of copyright management information. See id. 1202. \6\ See Chapter 12 of Title 17: Hearing Before the Subcomm. on Courts, Intellectual Prop., and the Internet of the H. Comm. on the Judiciary, 113th Cong. (2014) (``Chapter 12 of Title 17 Hearing''). \7\ See Register's Perspective on Copyright Review: Hearing Before the H. Comm. on the Judiciary, 114th Cong. 6 (2015) (``Register's Perspective on Copyright Review Hearing'') (statement of Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office) (``For [certain] aspects of section 1201, we are recommending a comprehensive study, including the permanent exemptions for security, encryption, and privacy research.''); id. at 49 (statement of Rep. John Conyers, Jr., Ranking Member, H. Comm. on the Judiciary) (``[T]here are policy issues that warrant studies and analysis, including section 512, section 1201, mass digitization, and moral rights. I would like the Copyright Office to conduct and complete reports on those policy issues . . . .''). Separately, as discussed below, the Register has also proposed amending the triennial rulemaking process to ease the burden of renewing existing exemptions. See id. at 5 (statement of Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office) (``We are therefore recommending a legislative change to provide a presumption in favor of renewal in cases where there is no opposition.''). --------------------------------------------------------------------------- A. Overview of Section 1201 Prohibitions on Circumvention and Trafficking Section 1201 prohibits the circumvention of technological measures employed by or on behalf of copyright owners to control access to their works (also known as ``access controls''), as well as the trafficking in technologies or services that facilitate such circumvention.\8\ It also prohibits trafficking in technologies or services that facilitate circumvention of technological measures that protect the exclusive rights granted to copyright owners under Title 17 (also known as ``copy controls'').\9\ In enacting section 1201, Congress recognized that technological measures can be deployed ``not only to prevent piracy and other economically harmful unauthorized uses of copyrighted material, but also to support new ways of disseminating copyrighted materials to users,'' as well as to make ``the process of obtaining permissions easier.'' \10\ Violations of [[Page 81370]] section 1201 are subject to both civil and criminal penalties.\11\ --------------------------------------------------------------------------- \8\ 17 U.S.C. 1201(a); 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 5-9 (Comm. Print 1998) (``House Manager's Report''). \9\ 17 U.S.C. 1201(b); see House Manager's Report at 12-13. While section 1201 does not prohibit the circumvention of copy controls, in some cases access control and copy control measures are merged, and thus circumvention of such measures is prohibited by section 1201(a)(1). U.S. Copyright Office, Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 4 n.13 (2015), http://copyright.gov/1201/2015/registers-recommendation.pdf (``2015 Recommendation''); U.S. Copyright Office, Recommendation of the Register of Copyrights in RM 2008-8, Rulemaking on Exemptions from Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies 44-47 (June 11, 2010), http://www.copyright.gov/1201/2010/initialed-registers-recommendation-june-11-2010.pdf (``2010 Recommendation''). \10\ House Manager's Report at 6. \11\ 17 U.S.C. 1203-1204. --------------------------------------------------------------------------- Rulemaking Process Section 1201 includes a triennial rulemaking process through which the Librarian of Congress, following a public proceeding conducted by the Register of Copyrights in consultation with the National Telecommunications and Information Administration of the Department of Commerce (``NTIA''), may grant limited exceptions to section 1201(a)(1)'s bar on the circumvention of access controls. By statute, the triennial rulemaking process addresses only the prohibition on the act of circumvention itself; section 1201 does not provide a mechanism to grant exceptions to the anti-trafficking provisions of sections 1201(a)(2) or 1201(b).\12\ The section 1201 rulemaking is intended to serve as a ``fail-safe'' mechanism through which the Copyright Office can monitor developments in the copyright marketplace and recommend limited exemptions as needed to prevent the unnecessary restriction of fair and other noninfringing uses.\13\ In keeping with that goal, the primary responsibility of the Office in the rulemaking proceeding is to assess whether the implementation of access controls impairs the ability of individuals to make noninfringing uses of copyrighted works within the meaning of section 1201(a)(1). To do this, the Register solicits proposals from the public, develops a comprehensive administrative record using information submitted by interested parties, and makes recommendations to the Librarian concerning whether exemptions are warranted based on that record. While the first triennial rulemaking completed in the year 2000 considered nearly 400 comments, resulting in the adoption of two exemptions,\14\ the process has grown such that the recently concluded sixth triennial rulemaking considered nearly 40,000 comments, resulting in exemptions for twenty- two types of uses.\15\ --------------------------------------------------------------------------- \12\ Id. 1201(a)(1)(C). \13\ H.R. Rep. No. 105-551, pt. 2, at 36. \14\ Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Final Rule, 65 FR 64556, 64557 (Oct. 27, 2000). \15\ 2015 Recommendation at 2-7 (2015). --------------------------------------------------------------------------- Those seeking an exemption from the prohibition on circumvention must establish 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 this title of a particular class of copyrighted works.'' \16\ To meet the statutory standard, a proponent must show: (1) That uses affected by the prohibition on circumvention are or are likely to be noninfringing; and (2) that as a result of a technological measure controlling access to a copyrighted work, the prohibition is causing, or in the next three years is likely to cause, an adverse impact on those uses.\17\ With respect to the first requirement, proponents in prior rulemakings have pointed to several types of noninfringing uses that could be affected by the prohibition of section 1201(a)(1), including fair use (codified in section 107 of the Copyright Act), certain educational uses (section 110), and certain uses of computer programs (section 117).\18\ The second requirement asks whether technological measures are ``diminishing the ability of individuals to use these works in ways that are otherwise lawful.'' \19\ Congress stressed that proponents must establish that a ``substantial diminution'' of the availability of works for noninfringing uses is ``actually occurring'' in the marketplace--or, in ``extraordinary circumstances,'' may establish the ``likelihood of future adverse impact during that time period'' where such evidence is ``highly specific, strong and persuasive.'' \20\ --------------------------------------------------------------------------- \16\ 17 U.S.C. 1201(a)(1)(C); see 2015 Recommendation at 13-14; 2010 Recommendation at 10. Under the APA, ``[e]xcept as otherwise provided by statute, the proponent of a rule or order has the burden of proof.'' 5 U.S.C. 556(d). The Breaking Down Barriers to Innovation Act of 2015, introduced in both the House and the Senate, would shift the burden of proof away from proponents of exemptions and provide discretion to the Librarian to conduct a rulemaking proceeding outside the triennial process. H.R. 1883, 114th Cong. sec. 3(a)(1)(E) (2015); S. 990, 114th Cong. sec. 3(a)(1)(E) (2015). \17\ 17 U.S.C. 1201(a)(1)(B). \18\ See, e.g., Transcript, U.S. Copyright Office, Hearing on Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies 10:17-11:9 (May 2, 2000) (statement of Peter Jaszi, Digital Future Coalition) (discussing adverse effects of section 1201(a)(1) on noninfringing uses under sections 107 and 110); Internet Archive, Creative Commons, and Berkman Center for Internet & Society, Initial Comments Submitted in Response to U.S. Copyright Office's Oct. 15, 2002 Notice of Inquiry at 7-9 (2002) (seeking an exemption to allow software archiving as allowed under sections 117 and 107); National Association of Independent Schools, Initial Comments Submitted in Response to U.S. Copyright Office's Nov. 24, 1999 Notice of Inquiry (2000) (discussing fair use for educational purposes). \19\ H.R. Rep. No. 105-551, pt. 2, at 37. \20\ House Manager's Report at 6. --------------------------------------------------------------------------- In considering a proposed exemption, the Librarian--and hence the Register--must also weigh the statutory factors listed in section 1201(a)(1)(C), namely: ``(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.'' \21\ --------------------------------------------------------------------------- \21\ 17 U.S.C. 1201(a)(1)(C). In the latest triennial rulemaking, due to the increasing prevalence of technological measures employed in connection with embedded computer software, many participants urged the Register and Librarian to consider non- copyright issues relating to health, safety, and environmental concerns under the rubric of ``other factors'' appropriate for consideration. See 2015 Recommendation at 2-3. The Breaking Down Barriers to Innovation Act of 2015 would add two additional factors to the list to be considered by the Librarian when deciding whether to grant an exemption: (1) Whether the prohibition on circumvention impacts accessibility for persons with disabilities, and (2) whether the prohibition impacts the furtherance of security research. H.R. 1883 sec. 3(a)(1)(B)(v); S. 990 sec. 3(a)(1)(B)(v). --------------------------------------------------------------------------- In addition, section 1201(a)(1) specifies that exemptions adopted through the triennial rulemaking must be defined based on ``a particular class of works.'' \22\ The legislative history explains that ``the `particular class of copyrighted works' [is intended to] be a narrow and focused subset of the broad categories of works'' appearing in section 102 of Title 17, such as literary works, musical works, and sound recordings.\23\ In the course of prior rulemakings, the Register has concluded that, based on the record presented, a ``class of works'' defined initially by reference to a section 102 category or subcategory of works may be additionally refined by reference to the medium in which the works are distributed, the particular access controls at issue, or the particular type of use and/or user to which the exemption will apply.\24\ --------------------------------------------------------------------------- \22\ See 17 U.S.C. 1201(a)(1)(B) (emphasis added). \23\ H.R. Rep. No. 105-551, pt. 2, at 38. \24\ U.S. Copyright Office, Recommendation of the Register of Copyrights in RM 2005-11, Rulemaking on Exemptions from Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies 9-10 (Nov. 17, 2006), http://www.copyright.gov/1201/docs/1201_recommendation.pdf. --------------------------------------------------------------------------- Exemptions adopted via the rulemaking process are to remain in effect for three years. Congress made clear that the basis for an exemption must be established de novo in each triennial proceeding.\25\ Accordingly, even if the same exemption is sought [[Page 81371]] again, it cannot be granted unless its proponents establish a new record that satisfies the statutory criteria. --------------------------------------------------------------------------- \25\ See H.R. Rep. No. 105-551, pt. 2, at 37 (explaining that for every rulemaking, ``the assessment of adverse impacts on particular categories of works is to be determined de novo''). --------------------------------------------------------------------------- Permanent Exemptions In addition to the temporary exemptions adopted pursuant to the triennial rulemaking process, section 1201 provides eight permanent exemptions to the prohibition on circumvention, namely for certain activities of nonprofit libraries, archives, and educational institutions (section 1201(d)) and law enforcement (section 1201(e)); for reverse engineering (section 1201(f)); encryption research (section 1201(g)); the protection of personally identifying information (section 1201(i)); security testing (section 1201(j)); the prevention of access by minors to the internet (section 1201(h)); and relating to certain analog devices such as VHS and Beta format cassettes (section 1201(k)). Separately, section 112 includes a limited permanent exception to section 1201 for purposes of making ephemeral recordings.\26\ As discussed below, the applicability and usefulness of the existing permanent exemptions has been questioned by some.\27\ --------------------------------------------------------------------------- \26\ 17 U.S.C. 112(a)(2). \27\ See Register's Perspective on Copyright Review Hearing at 29 (statement of Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office) (``The permanent exemptions in Section 1201 relating to reverse engineering, encryption research, and security testing are an ongoing issue, with some stakeholders suggesting that they are too narrow in scope and others of the view that they strike an appropriate balance. For its part, the Office has previously highlighted the limited nature of the existing security testing exemptions and supported congressional review of the problem.'') (citations omitted). --------------------------------------------------------------------------- Unlocking Consumer Choice and Wireless Competition Act In 2014, Congress addressed certain issues relating to section 1201 by passing the Unlocking Consumer Choice and Wireless Competition Act (``Unlocking Act''), which primarily concerned the circumvention of technological measures that control access to computer programs that enable wireless telephone handsets to connect to wireless communication networks (``cellphone unlocking'').\28\ The Unlocking Act reinstated the cellphone unlocking exemption adopted by the Librarian in 2010,\29\ replacing the narrower version adopted in 2012,\30\ and directed the Librarian to consider in the 2015 rulemaking whether to ``extend'' the exemption ``to include any other category of wireless devices in addition to wireless telephone handsets.'' \31\ (On the Register's recommendation, the Librarian granted additional exemptions for tablets and other types of wireless devices in the 2015 proceeding.\32\) --------------------------------------------------------------------------- \28\ Unlocking Consumer Choice and Wireless Competition Act, Public Law 113-144, 128 Stat. 1751 (2014). Subsequently, the Librarian adopted regulatory amendments to reflect the new legislation. See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Wireless Telephone Handsets, Final Rule, 79 FR 50552 (Aug. 25, 2014). \29\ See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Final Rule, 75 FR 43825, 43828-32 (July 27, 2010). \30\ See Unlocking Consumer Choice and Wireless Competition Act sec. 2(a), 128 Stat. at 1751. \31\ Id. 2(b), 128 Stat. at 1751. \32\ See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Final Rule, 80 FR 65944, 65952, 65962-63. --------------------------------------------------------------------------- The Unlocking Act also permanently established that circumvention under any exemption to permit a wireless telephone handset or other wireless device to connect to a different telecommunications network may be initiated by the owner of the handset or device, by another person at the direction of the owner, or by a provider of commercial mobile radio or data service, so long as the purpose is to enable the owner or a family member to connect to a wireless network in an authorized manner.\33\ The legislation served to clarify that the owner of a device or the owner's family member can obtain assistance with the circumvention from another party notwithstanding the anti-trafficking provisions of section 1201.\34\ --------------------------------------------------------------------------- \33\ Unlocking Consumer Choice and Wireless Competition Act sec. 2(a), (c), 128 Stat. at 1751-52; see also 37 CFR 201.40(b)(3) (2012). \34\ Other bills have recently been introduced that would alter the operation of section 1201. Recent examples include the Unlocking Technology Act of 2015, H.R. 1587, 114th Cong. (2015); and the Breaking Down Barriers to Innovation Act of 2015, H.R. 1883, S. 990, 114th Cong. (2015). --------------------------------------------------------------------------- B. Areas of Concern Rulemaking Process As the number of participants in the triennial rulemaking has expanded with each successive cycle, the Office has done what it can within the existing statutory framework to streamline the proceedings. For the recent sixth triennial rulemaking proceeding, the Register (in consultation with NTIA and past proceeding participants) adjusted the administrative procedures to make the process more accessible and understandable; facilitate participation, coordination, and the development of the factual record; and reduce administrative burdens on both the participants and the Copyright Office.\35\ The Office solicited initial petitions setting forth only the essential elements of proposed exemptions and then issued a Notice of Proposed Rulemaking that reviewed and grouped the proposals and provided detailed guidance on the submission of written comments.\36\ The Office also refined the comment phase to encourage a more organized and complete administrative record, including by instituting three distinct rounds of comments to allow participants to better respond to issues raised by other commenters.\37\ The Office instituted procedures to encourage advance submission of multimedia evidence where appropriate.\38\ --------------------------------------------------------------------------- \35\ See generally Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Notice of Inquiry, 79 FR 55687 (Sept. 17, 2014) (``Sixth Triennial Rulemaking NOI''); Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Notice of Proposed Rulemaking, 79 FR 73856 (Dec. 12, 2014) (``Sixth Triennial Rulemaking NPRM''); cf. Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Notice of Inquiry, 76 FR 60398 (Sept. 29, 2011). \36\ Sixth Triennial Rulemaking NPRM, 79 FR 73856, 73858-71. \37\ See Sixth Triennial Rulemaking NPRM, 79 FR 73856, 73857-58; see also Sixth Triennial Rulemaking NOI, 79 FR 55687, 55693. \38\ See Sixth Triennial Rulemaking NPRM, 79 FR 73856, 73858. --------------------------------------------------------------------------- Even with these improvements, however, the rulemaking procedure, as enacted by Congress, is resource-intensive for both participants and the Office. An area of particular concern is the requirement that previously granted exemptions be reviewed anew. During the most recent rulemaking, a number of petitions essentially sought renewal of existing exemptions--for example, unlocking of cellphones and jailbreaking of smartphones. Some of these petitions--including a petition to permit circumvention so that literary works distributed electronically could continue to be accessed by persons who are blind, visually impaired, or print disabled--were unopposed.\39\ In testimony, the Register has recommended that Congress amend the rulemaking process to create a presumption in favor of renewal when there is no meaningful opposition to the continuation of an exemption.\40\ --------------------------------------------------------------------------- \39\ See 2015 Recommendation at 127-37. \40\ In her testimony, the Register noted this issue is ripe for legislative process. See Register's Perspective on Copyright Review Hearing at 27 (statement of Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office); 2015 Recommendation at 4. The Breaking Down Barriers to Innovation Act of 2015 would require the renewal of previously-granted exemptions unless ``changed circumstances'' justify revoking the exemption. H.R. 1883 sec. 3(a)(1)(F)(iii); S. 990 sec. 3(a)(1)(F)(iii). --------------------------------------------------------------------------- [[Page 81372]] Consumer Issues Since the enactment of section 1201, the use of technological measures has been useful in expanding consumer choice and the avenues for dissemination of creative works, for example, movies and video games.\41\ At the same time, as the Copyright Office has stated, it is also apparent that the prohibition on circumvention impacts a wide range of consumer activities that have little to do with the consumption of creative content or the core concerns of copyright.\42\ Considering these impacts, some stakeholders have expressed concern over the effect of section 1201 on competition and innovation in the marketplace. In their view, technological measures are often deployed to ``lock in'' particular business models by inhibiting the development of interoperable products, such as printer cartridges, or to prevent individuals from engaging in otherwise legitimate pursuits, such as the repair of automobiles and farm equipment--despite the fact that these sorts of activities seem far removed from piracy of copyrighted works.\43\ --------------------------------------------------------------------------- \41\ See, e.g., Chapter 12 of Title 17 Hearing at 28-29 (statement of Christian Genetski, Senior Vice-President and General Counsel, Entertainment Software Association). \42\ 2015 Recommendation at 2. \43\ See, e.g., Chapter 12 of Title 17 Hearing at 43-44 (statement of Corynne McSherry, Intellectual Property Director, Electronic Frontier Foundation); Unintended Consequences: Fifteen Years under the DMCA, Electronic Frontier Foundation, https://www.eff.org/pages/unintended-consequences-fifteen-years-under-dmca (last updated March 2013). The proposed Unlocking Technology Act of 2015 would amend both the anticircumvention and anti-trafficking provisions of section 1201(a) to prohibit such conduct only when done with the intent to facilitate the infringement of a copyrighted work. H.R. 1587 sec. 2(a). --------------------------------------------------------------------------- These concerns were highlighted throughout the recently completed sixth triennial proceeding. In the 2015 rulemaking, some of the proposed exemptions concerned the ability to access and make noninfringing uses of expressive copyrighted works, such as motion pictures, video games, and e-books, which Congress undoubtedly had in mind when it created the triennial review process. But others concerned the ability to circumvent access controls on copyrighted computer code in consumer devices. Proponents of these latter classes sought to access the computer code not for its creative content, but rather to enable greater functionality and interoperability of devices ranging from cellphones, tablets, and smart TVs to 3-D printers, automobiles, tractors, and pacemakers.\44\ As the Register has testified, the effect of section 1201 on a wide range of consumer goods that today contain copyrighted software merits review.\45\ --------------------------------------------------------------------------- \44\ 2015 Recommendation at 2; Register's Perspective on Copyright Review Hearing at 29-30 (statement of Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office). \45\ Register's Perspective on Copyright Review Hearing at 29-30 (statement of Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office). --------------------------------------------------------------------------- Third-Party Assistance A related issue is whether section 1201 should be clarified to ensure that intended beneficiaries of exemptions are able to engage in the permitted circumvention activities.\46\ For example, a vehicle owner may require assistance from a repair shop technician to take advantage of an exemption that allows circumvention of access controls on automobile software to make a repair.\47\ The anti-trafficking provisions of section 1201, however, prevent the adoption of exemptions that permit third parties to offer circumvention services.\48\ While the Unlocking Act clarified section 1201 to permit specified third parties to circumvent technological measures on behalf of device owners in the case of cellphones and other wireless devices, the statute does not extend to other types of uses or allow the Librarian to grant an exemption that provides for third-party assistance in other circumstances. --------------------------------------------------------------------------- \46\ Id. at 29 (noting that intended beneficiaries of exemptions lack the practical ability to engage in the permitted circumvention themselves and suggesting the need for further study). \47\ See 2015 Recommendation at 4-5. \48\ Id. --------------------------------------------------------------------------- Permanent Exemptions Another concern is that section 1201's permanent exemptions have failed to keep up with changing technologies. In testimony, the Register has identified the limited nature of the existing security testing exemptions and supported congressional review of this problem.\49\ Based on the record in the most recent section 1201 rulemaking, the Register concluded that commenting parties had made a ``compelling case that the current permanent exemptions in section 1201, specifically section 1201(f) for reverse engineering, section 1201(g) for encryption research, and section 1201(j) for security testing, are inadequate to accommodate their intended purposes.'' \50\ For example, when considering a requested exemption for good-faith security research, the Register noted that ``the existing permanent exemptions . . . do not cover the full range of proposed security research activities, many of which . . . are likely [to] be noninfringing.'' \51\ Separately, others have suggested that section 1201(d)'s exemption for activities of nonprofit entities is inadequate to meet the legitimate archiving and preservation needs of libraries and archives.\52\ --------------------------------------------------------------------------- \49\ Register's Perspective on Copyright Review Hearing at 29 (statement of Maria A. Pallante, Register of Copyrights and Director, U.S. Copyright Office). \50\ 2015 Recommendation at 307. Legislation recently introduced in Congress would increase exemptions for reverse engineering, encryption research, the protection of personally identifying information, and security testing. See Breaking Down Barriers to Innovation Act of 2015, H.R. 1883 sec. 3(b)-(e); Breaking Down Barriers to Innovation Act of 2015, S. 990 sec. 3(b)-(e). \51\ 2015 Recommendation at 299. The Breaking Down Barriers to Innovation Act of 2015 would increase exemptions for reverse engineering, encryption research, the protection of personally identifying information, and security testing. H.R. 1883 sec. 3(b)- (e); S. 990 sec. 3(b)-(e). \52\ See, e.g., 2015 Recommendation at 327 (discussing proposal for exemption for video game preservationists); Pan C. Lee et al., Samuelson Law, Technology & Public Policy Clinic, University of California, Berkeley School of Law, on behalf of Public Knowledge, Updating 17 U.S.C. 1201 for Innovators, Creators, and Consumers in the Digital Age 52 (2010), https://www.publicknowledge.org/assets/uploads//2_Circumvention.pdf. --------------------------------------------------------------------------- International Issues As noted above, section 1201 was adopted in 1998 to implement the United States' obligations under two international treaties.\53\ Those treaties--the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty--require signatory countries to provide ``adequate legal protection and effective legal remedies against the circumvention of effective technological measures'' that are used by authors, performers, and phonogram producers in connection with the exercise of their rights, and that restrict acts, in respect of their works, performances, or phonograms, which are not authorized by rightsholders or permitted by law.\54\ Since then, the United States has included anticircumvention provisions in a number of bilateral and regional agreements entered into with other nations.\55\ Therefore, any proposals to [[Page 81373]] modify or amend Section 1201 would require consideration of the United States' international obligations. --------------------------------------------------------------------------- \53\ See H.R. Rep. No. 105-551, pt. 2, at 20. \54\ WIPO Copyright Treaty art. 11, Dec. 20, 1996, 36 I.L.M. 65 (1997); WIPO Performances and Phonograms Treaty art. 18, Dec. 20, 1996, 36 I.L.M. 76 (1997). \55\ See United States-Australia Free Trade Agreement, U.S.- Austl., art. 17.4.7, May 18, 2004, 43 I.L.M. 1248, http://www.ustr.gov/trade-agreements/free-trade-agreements/australian-fta/final-text; United States-Bahrain Free Trade Agreement, U.S.-Bahr., art. 14.4.7, Sept. 14, 2004, 44 I.L.M. 544, http://www.ustr.gov/trade-agreements/free-trade-agreements/bahrain-fta/final-text; United States-Chile Free Trade Agreement, U.S.-Chile, art. 17.7.5, June 6, 2003, 42 I.L.M. 1026, http://www.ustr.gov/trade-agreements/free-trade-agreements/chile-fta/final-text; United States-Colombia Trade Promotion Agreement, U.S.-Colom., art. 16.7.4, Nov. 22, 2006, http://www.ustr.gov/trade-agreements/free-trade-agreements/colombia-fta/final-text; Dominican Republic-Central America-United States Free Trade Agreement, U.S.-Costa Rica-Dom. Rep.-El Sal.-Guat.-Hond.- Nicar., art 15.5.7, Aug. 5, 2004, 43 I.L.M. 514, https://ustr.gov/trade-agreements/free-trade-agreements/cafta-dr-dominican-republic-central-america-fta/final-text; United States-Jordan Free Trade Agreement, U.S.-Jordan, art. 4(13), Oct. 24, 2000, 41 I.L.M. 63, http://www.ustr.gov/trade-agreements/free-trade-agreements/jordan-fta/final-text; United States-Korea Free Trade Agreement, U.S.-S. Kor. art. 18.4.7, June 30, 2007, 46 I.L.M. 642, https://ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text; United States-Morocco Free Trade Agreement, U.S.-Morocco, art. 15.5.8, June 15, 2004, 44 I.L.M. 544, http://www.ustr.gov/trade-agreements/free-trade-agreements/morocco-fta/final-text; United States-Oman Free Trade Agreement, U.S.-Oman, art. 15.4.7, Jan. 19, 2006, http://www.ustr.gov/trade-agreements/free-trade-agreements/oman-fta/final-text; United States-Panama Trade Promotion Agreement, U.S.-Pan., art 15.5.7, June 28, 2007, http://www.ustr.gov/trade-agreements/free-trade-agreements/panama-tpa/final-text; United States-Peru Trade Promotion Agreement, U.S.-Peru, art. 16.7.4, Apr. 12, 2006, http://www.ustr.gov/trade-agreements/free-trade-agreements/peru-tpa/final-text; United States-Singapore Free Trade Agreement, U.S.-Sing., art. 16.4.7, May 6, 2003, 42 I.L.M. 1026, https://ustr.gov/trade-agreements/free-trade-agreements/singapore-fta/final-text. --------------------------------------------------------------------------- C. Relationship to Software Study The scope of this study is limited to the operation and effectiveness of section 1201. It is not intended to focus on broader issues concerning the role of copyright with respect to software embedded in everyday products. Those issues are the subject of a separate and concurrent Copyright Office study.\56\ Although, as noted, section 1201 certainly has implications for the use of such products, members of the public who wish to address the impact of other provisions of copyright law on embedded software are encouraged to submit comments in that separate process. More information about the Software-Enabled Consumer Products Study may be found at http://www.copyright.gov/policy/software/. --------------------------------------------------------------------------- \56\ See Software-Enabled Consumer Products Study: Notice and Request for Public Comment, 80 FR 77668 (Dec. 15, 2015). --------------------------------------------------------------------------- II. Subjects of Inquiry The Office invites written comments on the specific subjects below. A party choosing to respond to this Notice of Inquiry need not address every subject, but the Office requests that responding parties clearly identify and separately address each subject for which a response is submitted. General 1. Please provide any insights or observations regarding the role and effectiveness of the prohibition on circumvention of technological measures in section 1201(a). 2. How should section 1201 accommodate interests that are outside of core copyright concerns, for example, in cases where circumvention of access controls protecting computer programs implicates issues of product interoperability or public safety? Rulemaking Process 3. Should section 1201 be adjusted to provide for presumptive renewal of previously granted exemptions--for example, when there is no meaningful opposition to renewal--or otherwise be modified to streamline the process of continuing an existing exemption? If so, how? 4. Please assess the current legal requirements that proponents of an exemption must satisfy to demonstrate entitlement to an exemption. Should they be altered? If so, how? In responding, please comment on the relationship to traditional principles of administrative law. 5. Please provide additional suggestions to improve the rulemaking process. Anti-Trafficking Prohibitions 6. Please assess the role of the anti-trafficking provisions of sections 1201(a)(2) and 1201(b) in deterring copyright infringement, and address whether any amendments may be advisable. 7. Should section 1201 be amended to allow the adoption of exemptions to the prohibition on circumvention that can extend to exemptions to the anti-trafficking prohibitions, and if so, in what way? For example, should the Register be able to recommend, and the Librarian able to adopt, exemptions that permit third-party assistance when justified by the record? Permanent Exemptions 8. Please assess whether the existing categories of permanent exemptions are necessary, relevant, and/or sufficient. How do the permanent exemptions affect the current state of reverse engineering, encryption research, and security testing? How do the permanent exemptions affect the activities of libraries, archives, and educational institutions? How might the existing permanent exemptions be amended to better facilitate such activities? 9. Please assess whether there are other permanent exemption categories that Congress should consider establishing--for example, to facilitate access to literary works by print-disabled persons? Other 10. To what extent and how might any proposed amendments to section 1201 implicate the United States' trade and treaty obligations? 11. Please identify any pertinent issues not referenced above that the Copyright Office should consider in conducting its study. Dated: December 22, 2015. Maria A. Pallante, Register of Copyrights, U.S. Copyright Office. [FR Doc. 2015-32678 Filed 12-28-15; 8:45 am] BILLING CODE 1410-30-P
![Federal Register / Vol. 80, No. 249 / Tuesday, December 29, 2015 / Notices 81369
Signed at Washington, DC, this 22nd day FOR FURTHER INFORMATION CONTACT: A. Overview of Section 1201
of December 2015. Regan A. Smith, Associate General
Kimberly D. Hill, Counsel, by email at resm@loc.gov or by Prohibitions on Circumvention and
Chief, Division of Management Systems, telephone at 202–707–8350; or Kevin Trafficking
Bureau of Labor Statistics. Amer, Senior Counsel for Policy and Section 1201 prohibits the
[FR Doc. 2015–32664 Filed 12–28–15; 8:45 am] International Affairs, by email at circumvention of technological
BILLING CODE 4510–24–P kamer@loc.gov or by telephone at 202– measures employed by or on behalf of
707–8350.
copyright owners to control access to
SUPPLEMENTARY INFORMATION:
their works (also known as ‘‘access
LIBRARY OF CONGRESS I. Background controls’’), as well as the trafficking in
The Digital Millennium Copyright Act technologies or services that facilitate
U.S. Copyright Office (‘‘DMCA’’) has played a pivotal role in such circumvention.8 It also prohibits
the development of the modern digital trafficking in technologies or services
[Docket No. 2015–8] that facilitate circumvention of
economy. Enacted in 1998 to implement
the United States’ obligations under two technological measures that protect the
Section 1201 Study: Notice and
international treaties,1 it is intended to exclusive rights granted to copyright
Request for Public Comment
foster the growth of the digital owners under Title 17 (also known as
AGENCY: U.S. Copyright Office, Library marketplace by ensuring adequate legal ‘‘copy controls’’).9 In enacting section
of Congress. protections for copyrighted content.2 As 1201, Congress recognized that
ACTION: Notice of inquiry. envisioned by Congress, the DMCA technological measures can be deployed
seeks to balance the interests of ‘‘not only to prevent piracy and other
SUMMARY: The United States Copyright copyright owners and users, including economically harmful unauthorized
Office is undertaking a public study to the personal interests of consumers, in uses of copyrighted material, but also to
assess the operation of section 1201 of the digital environment.3 In addition to support new ways of disseminating
Title 17, including the triennial provisions limiting the liability of copyrighted materials to users,’’ as well
rulemaking process established under online service providers,4 the DMCA as to make ‘‘the process of obtaining
the DMCA to adopt exemptions to the includes provisions prohibiting the permissions easier.’’ 10 Violations of
prohibition against circumvention of circumvention of technological
technological measures that control measures used to protect copyrighted Copyright Review Hearing’’) (statement of Maria A.
access to copyrighted works. To aid this works as well as trafficking in Pallante, Register of Copyrights and Director, U.S.
effort, and to ensure thorough assistance anticircumvention devices.5 These Copyright Office) (‘‘For [certain] aspects of section
to Congress, the Office is seeking public anticircumvention provisions, codified 1201, we are recommending a comprehensive
input on a number of key questions. in section 1201 of the Copyright Act, study, including the permanent exemptions for
security, encryption, and privacy research.’’); id. at
DATES: Written comments must be were the subject of a 2014 hearing held 49 (statement of Rep. John Conyers, Jr., Ranking
received no later than 11:59 p.m. by the House Judiciary Committee’s Member, H. Comm. on the Judiciary) (‘‘[T]here are
Eastern Time on February 25, 2016. Subcommittee on Courts, Intellectual policy issues that warrant studies and analysis,
Written reply comments must be Property and the Internet as part of its including section 512, section 1201, mass
digitization, and moral rights. I would like the
received no later than 11:59 p.m. comprehensive review of the nation’s Copyright Office to conduct and complete reports
Eastern Time on March 25, 2016. The copyright law,6 and, as discussed below, on those policy issues . . . .’’). Separately, as
Office will be announcing one or more a recently concluded rulemaking discussed below, the Register has also proposed
public meetings, to take place after conducted by the Copyright Office. In amending the triennial rulemaking process to ease
accordance with the request from the the burden of renewing existing exemptions. See id.
written comments are received, by at 5 (statement of Maria A. Pallante, Register of
separate notice in the future. House Judiciary Committee’s Ranking Copyrights and Director, U.S. Copyright Office)
ADDRESSES: All comments must be Member to the Register of Copyrights at (‘‘We are therefore recommending a legislative
submitted electronically. Specific the April 2015 House Judiciary change to provide a presumption in favor of
Committee hearing on copyright review, renewal in cases where there is no opposition.’’).
instructions for submitting comments 8 17 U.S.C. 1201(a); see Staff of H. Comm. on the
will be posted on the Copyright Office and consistent with the Register’s
Judiciary, 105th Cong., Section-by-Section Analysis
Web site at http://www.copyright.gov/ testimony in that hearing that the of H.R. 2281 as Passed by the United States House
policy/1201 on or before February 1, impact and efficacy of section 1201 of Representatives on August 4th, 1998, at 5–9
2016. To meet accessibility standards, merit analysis at this time, the Office is (Comm. Print 1998) (‘‘House Manager’s Report’’).
all comments must be provided in a undertaking a study and soliciting 9 17 U.S.C. 1201(b); see House Manager’s Report
public input.7 at 12–13. While section 1201 does not prohibit the
single file not to exceed six megabytes circumvention of copy controls, in some cases
(MB) in one of the following formats: 1 See WIPO Copyright Treaty art. 11, Dec. 20,
access control and copy control measures are
Portable Document File (PDF) format 1996, 36 I.L.M. 65 (1997); WIPO Performances and
merged, and thus circumvention of such measures
containing searchable, accessible text is prohibited by section 1201(a)(1). U.S. Copyright
Phonograms Treaty art. 18, Dec. 20, 1996, 36 I.L.M.
Office, Section 1201 Rulemaking: Sixth Triennial
(not an image); Microsoft Word; 76 (1997).
Proceeding to Determine Exemptions to the
WordPerfect; Rich Text Format (RTF); or 2 See H.R. Rep. No. 105–551, pt. 2, at 23 (1998).
Prohibition on Circumvention, Recommendation of
3 See id. at 26.
ASCII text file format (not a scanned the Register of Copyrights 4 n.13 (2015), http://
4 See 17 U.S.C. 512.
document). All comments must include copyright.gov/1201/2015/registers-
asabaliauskas on DSK5VPTVN1PROD with NOTICES
5 The DMCA also established protections for the recommendation.pdf (‘‘2015 Recommendation’’);
the name of the submitter and any integrity of copyright management information. See U.S. Copyright Office, Recommendation of the
organization the submitter represents. id. 1202. Register of Copyrights in RM 2008–8, Rulemaking
The Office will post all comments 6 See Chapter 12 of Title 17: Hearing Before the on Exemptions from Prohibition on Circumvention
publicly in the form that they are Subcomm. on Courts, Intellectual Prop., and the of Copyright Protection Systems for Access Control
Internet of the H. Comm. on the Judiciary, 113th Technologies 44–47 (June 11, 2010), http://
received. If electronic submission of
Cong. (2014) (‘‘Chapter 12 of Title 17 Hearing’’). www.copyright.gov/1201/2010/initialed-registers-
comments is not feasible, please contact 7 See Register’s Perspective on Copyright Review: recommendation-june-11-2010.pdf (‘‘2010
the Office using the contact information Hearing Before the H. Comm. on the Judiciary, Recommendation’’).
below for special instructions. 114th Cong. 6 (2015) (‘‘Register’s Perspective on 10 House Manager’s Report at 6.
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![81370 Federal Register / Vol. 80, No. 249 / Tuesday, December 29, 2015 / Notices
section 1201 are subject to both civil particular class of copyrighted for use of works for nonprofit archival,
and criminal penalties.11 works.’’ 16 To meet the statutory preservation, and educational purposes;
standard, a proponent must show: (1) (iii) the impact that the prohibition on
Rulemaking Process
That uses affected by the prohibition on the circumvention of technological
Section 1201 includes a triennial circumvention are or are likely to be measures applied to copyrighted works
rulemaking process through which the noninfringing; and (2) that as a result of has on criticism, comment, news
Librarian of Congress, following a a technological measure controlling reporting, teaching, scholarship, or
public proceeding conducted by the access to a copyrighted work, the research; (iv) the effect of circumvention
Register of Copyrights in consultation prohibition is causing, or in the next of technological measures on the market
with the National Telecommunications three years is likely to cause, an adverse for or value of copyrighted works; and
and Information Administration of the impact on those uses.17 With respect to (v) such other factors as the Librarian
Department of Commerce (‘‘NTIA’’), the first requirement, proponents in considers appropriate.’’ 21
may grant limited exceptions to section prior rulemakings have pointed to In addition, section 1201(a)(1)
1201(a)(1)’s bar on the circumvention of several types of noninfringing uses that specifies that exemptions adopted
access controls. By statute, the triennial could be affected by the prohibition of through the triennial rulemaking must
rulemaking process addresses only the section 1201(a)(1), including fair use be defined based on ‘‘a particular class
prohibition on the act of circumvention (codified in section 107 of the Copyright of works.’’ 22 The legislative history
itself; section 1201 does not provide a Act), certain educational uses (section explains that ‘‘the ‘particular class of
mechanism to grant exceptions to the 110), and certain uses of computer copyrighted works’ [is intended to] be a
anti-trafficking provisions of sections programs (section 117).18 The second narrow and focused subset of the broad
1201(a)(2) or 1201(b).12 The section requirement asks whether technological categories of works’’ appearing in
1201 rulemaking is intended to serve as measures are ‘‘diminishing the ability of section 102 of Title 17, such as literary
a ‘‘fail-safe’’ mechanism through which individuals to use these works in ways works, musical works, and sound
the Copyright Office can monitor that are otherwise lawful.’’ 19 Congress recordings.23 In the course of prior
developments in the copyright stressed that proponents must establish rulemakings, the Register has concluded
marketplace and recommend limited that a ‘‘substantial diminution’’ of the that, based on the record presented, a
exemptions as needed to prevent the availability of works for noninfringing ‘‘class of works’’ defined initially by
unnecessary restriction of fair and other uses is ‘‘actually occurring’’ in the reference to a section 102 category or
noninfringing uses.13 In keeping with marketplace—or, in ‘‘extraordinary subcategory of works may be
that goal, the primary responsibility of circumstances,’’ may establish the additionally refined by reference to the
the Office in the rulemaking proceeding ‘‘likelihood of future adverse impact medium in which the works are
is to assess whether the implementation during that time period’’ where such distributed, the particular access
of access controls impairs the ability of evidence is ‘‘highly specific, strong and controls at issue, or the particular type
individuals to make noninfringing uses persuasive.’’ 20 of use and/or user to which the
of copyrighted works within the In considering a proposed exemption, exemption will apply.24
meaning of section 1201(a)(1). To do the Librarian—and hence the Register— Exemptions adopted via the
this, the Register solicits proposals from must also weigh the statutory factors rulemaking process are to remain in
the public, develops a comprehensive listed in section 1201(a)(1)(C), namely: effect for three years. Congress made
administrative record using information ‘‘(i) the availability for use of clear that the basis for an exemption
submitted by interested parties, and copyrighted works; (ii) the availability must be established de novo in each
makes recommendations to the triennial proceeding.25 Accordingly,
Librarian concerning whether 16 17 U.S.C. 1201(a)(1)(C); see 2015
even if the same exemption is sought
exemptions are warranted based on that Recommendation at 13–14; 2010 Recommendation
record. While the first triennial at 10. Under the APA, ‘‘[e]xcept as otherwise
21 17 U.S.C. 1201(a)(1)(C). In the latest triennial
provided by statute, the proponent of a rule or order
rulemaking completed in the year 2000 has the burden of proof.’’ 5 U.S.C. 556(d). The rulemaking, due to the increasing prevalence of
considered nearly 400 comments, Breaking Down Barriers to Innovation Act of 2015, technological measures employed in connection
resulting in the adoption of two introduced in both the House and the Senate, with embedded computer software, many
would shift the burden of proof away from participants urged the Register and Librarian to
exemptions,14 the process has grown proponents of exemptions and provide discretion to consider non-copyright issues relating to health,
such that the recently concluded sixth the Librarian to conduct a rulemaking proceeding safety, and environmental concerns under the
triennial rulemaking considered nearly outside the triennial process. H.R. 1883, 114th rubric of ‘‘other factors’’ appropriate for
40,000 comments, resulting in Cong. sec. 3(a)(1)(E) (2015); S. 990, 114th Cong. sec. consideration. See 2015 Recommendation at 2–3.
exemptions for twenty-two types of 3(a)(1)(E) (2015). The Breaking Down Barriers to Innovation Act of
17 17 U.S.C. 1201(a)(1)(B). 2015 would add two additional factors to the list
uses.15 18 See, e.g., Transcript, U.S. Copyright Office, to be considered by the Librarian when deciding
Those seeking an exemption from the Hearing on Exemption to Prohibition on whether to grant an exemption: (1) Whether the
prohibition on circumvention must Circumvention of Copyright Protection Systems for prohibition on circumvention impacts accessibility
establish that ‘‘persons who are users of Access Control Technologies 10:17–11:9 (May 2, for persons with disabilities, and (2) whether the
2000) (statement of Peter Jaszi, Digital Future prohibition impacts the furtherance of security
a copyrighted work are, or are likely to research. H.R. 1883 sec. 3(a)(1)(B)(v); S. 990 sec.
Coalition) (discussing adverse effects of section
be in the succeeding 3-year period, 1201(a)(1) on noninfringing uses under sections 107 3(a)(1)(B)(v).
adversely affected by the prohibition and 110); Internet Archive, Creative Commons, and 22 See 17 U.S.C. 1201(a)(1)(B) (emphasis added).
. . . in their ability to make Berkman Center for Internet & Society, Initial 23 H.R. Rep. No. 105–551, pt. 2, at 38.
noninfringing uses under this title of a Comments Submitted in Response to U.S. Copyright 24 U.S. Copyright Office, Recommendation of the
asabaliauskas on DSK5VPTVN1PROD with NOTICES
Office’s Oct. 15, 2002 Notice of Inquiry at 7–9 Register of Copyrights in RM 2005–11, Rulemaking
(2002) (seeking an exemption to allow software on Exemptions from Prohibition on Circumvention
11 17U.S.C. 1203–1204. archiving as allowed under sections 117 and 107); of Copyright Protection Systems for Access Control
12 Id.1201(a)(1)(C). National Association of Independent Schools, Technologies 9–10 (Nov. 17, 2006), http://
13 H.R. Rep. No. 105–551, pt. 2, at 36. Initial Comments Submitted in Response to U.S. www.copyright.gov/1201/docs/1201_
14 Exemption to Prohibition on Circumvention of Copyright Office’s Nov. 24, 1999 Notice of Inquiry recommendation.pdf.
Copyright Protection Systems for Access Control (2000) (discussing fair use for educational 25 See H.R. Rep. No. 105–551, pt. 2, at 37
Technologies, Final Rule, 65 FR 64556, 64557 (Oct. purposes). (explaining that for every rulemaking, ‘‘the
27, 2000). 19 H.R. Rep. No. 105–551, pt. 2, at 37.
assessment of adverse impacts on particular
15 2015 Recommendation at 2–7 (2015). 20 House Manager’s Report at 6. categories of works is to be determined de novo’’).
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![81372 Federal Register / Vol. 80, No. 249 / Tuesday, December 29, 2015 / Notices
Consumer Issues testified, the effect of section 1201 on a when considering a requested
Since the enactment of section 1201, wide range of consumer goods that exemption for good-faith security
the use of technological measures has today contain copyrighted software research, the Register noted that ‘‘the
been useful in expanding consumer merits review.45 existing permanent exemptions . . . do
choice and the avenues for not cover the full range of proposed
Third-Party Assistance security research activities, many of
dissemination of creative works, for
example, movies and video games.41 At A related issue is whether section which . . . are likely [to] be
the same time, as the Copyright Office 1201 should be clarified to ensure that noninfringing.’’ 51 Separately, others
has stated, it is also apparent that the intended beneficiaries of exemptions are have suggested that section 1201(d)’s
prohibition on circumvention impacts a able to engage in the permitted exemption for activities of nonprofit
wide range of consumer activities that circumvention activities.46 For example, entities is inadequate to meet the
have little to do with the consumption a vehicle owner may require assistance legitimate archiving and preservation
of creative content or the core concerns from a repair shop technician to take needs of libraries and archives.52
of copyright.42 Considering these advantage of an exemption that allows
International Issues
impacts, some stakeholders have circumvention of access controls on
automobile software to make a repair.47 As noted above, section 1201 was
expressed concern over the effect of
The anti-trafficking provisions of adopted in 1998 to implement the
section 1201 on competition and
section 1201, however, prevent the United States’ obligations under two
innovation in the marketplace. In their
adoption of exemptions that permit international treaties.53 Those treaties—
view, technological measures are often
third parties to offer circumvention the WIPO Copyright Treaty and the
deployed to ‘‘lock in’’ particular
services.48 While the Unlocking Act WIPO Performances and Phonograms
business models by inhibiting the
clarified section 1201 to permit Treaty—require signatory countries to
development of interoperable products,
specified third parties to circumvent provide ‘‘adequate legal protection and
such as printer cartridges, or to prevent
technological measures on behalf of effective legal remedies against the
individuals from engaging in otherwise
device owners in the case of cellphones circumvention of effective technological
legitimate pursuits, such as the repair of
and other wireless devices, the statute measures’’ that are used by authors,
automobiles and farm equipment—
does not extend to other types of uses performers, and phonogram producers
despite the fact that these sorts of
or allow the Librarian to grant an in connection with the exercise of their
activities seem far removed from piracy
exemption that provides for third-party rights, and that restrict acts, in respect
of copyrighted works.43
These concerns were highlighted assistance in other circumstances. of their works, performances, or
throughout the recently completed sixth phonograms, which are not authorized
Permanent Exemptions by rightsholders or permitted by law.54
triennial proceeding. In the 2015
rulemaking, some of the proposed Another concern is that section 1201’s Since then, the United States has
exemptions concerned the ability to permanent exemptions have failed to included anticircumvention provisions
access and make noninfringing uses of keep up with changing technologies. In in a number of bilateral and regional
expressive copyrighted works, such as testimony, the Register has identified agreements entered into with other
motion pictures, video games, and e- the limited nature of the existing nations.55 Therefore, any proposals to
books, which Congress undoubtedly had security testing exemptions and
supported congressional review of this Down Barriers to Innovation Act of 2015, H.R. 1883
in mind when it created the triennial sec. 3(b)–(e); Breaking Down Barriers to Innovation
review process. But others concerned problem.49 Based on the record in the Act of 2015, S. 990 sec. 3(b)–(e).
the ability to circumvent access controls most recent section 1201 rulemaking, 51 2015 Recommendation at 299. The Breaking
on copyrighted computer code in the Register concluded that commenting Down Barriers to Innovation Act of 2015 would
parties had made a ‘‘compelling case increase exemptions for reverse engineering,
consumer devices. Proponents of these encryption research, the protection of personally
latter classes sought to access the that the current permanent exemptions identifying information, and security testing. H.R.
computer code not for its creative in section 1201, specifically section 1883 sec. 3(b)–(e); S. 990 sec. 3(b)–(e).
content, but rather to enable greater 1201(f) for reverse engineering, section 52 See, e.g., 2015 Recommendation at 327
functionality and interoperability of 1201(g) for encryption research, and (discussing proposal for exemption for video game
preservationists); Pan C. Lee et al., Samuelson Law,
devices ranging from cellphones, section 1201(j) for security testing, are Technology & Public Policy Clinic, University of
tablets, and smart TVs to 3–D printers, inadequate to accommodate their California, Berkeley School of Law, on behalf of
automobiles, tractors, and intended purposes.’’ 50 For example, Public Knowledge, Updating 17 U.S.C. 1201 for
pacemakers.44 As the Register has Innovators, Creators, and Consumers in the Digital
(statement of Maria A. Pallante, Register of Age 52 (2010), https://www.publicknowledge.org/
Copyrights and Director, U.S. Copyright Office). assets/uploads//2_Circumvention.pdf.
41 See, e.g., Chapter 12 of Title 17 Hearing at 28– 53 See H.R. Rep. No. 105–551, pt. 2, at 20.
45 Register’s Perspective on Copyright Review
29 (statement of Christian Genetski, Senior Vice- 54 WIPO Copyright Treaty art. 11, Dec. 20, 1996,
President and General Counsel, Entertainment Hearing at 29–30 (statement of Maria A. Pallante,
Register of Copyrights and Director, U.S. Copyright 36 I.L.M. 65 (1997); WIPO Performances and
Software Association). Phonograms Treaty art. 18, Dec. 20, 1996, 36 I.L.M.
42 2015 Recommendation at 2. Office).
46 Id. at 29 (noting that intended beneficiaries of 76 (1997).
43 See, e.g., Chapter 12 of Title 17 Hearing at 43– 55 See United States-Australia Free Trade
44 (statement of Corynne McSherry, Intellectual exemptions lack the practical ability to engage in
the permitted circumvention themselves and Agreement, U.S.-Austl., art. 17.4.7, May 18, 2004,
Property Director, Electronic Frontier Foundation); 43 I.L.M. 1248, http://www.ustr.gov/trade-
Unintended Consequences: Fifteen Years under the suggesting the need for further study).
47 See 2015 Recommendation at 4–5.
agreements/free-trade-agreements/australian-fta/
DMCA, Electronic Frontier Foundation, https://
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final-text; United States-Bahrain Free Trade
48 Id.
www.eff.org/pages/unintended-consequences- Agreement, U.S.-Bahr., art. 14.4.7, Sept. 14, 2004,
fifteen-years-under-dmca (last updated March 49 Register’s Perspective on Copyright Review
44 I.L.M. 544, http://www.ustr.gov/trade-
2013). The proposed Unlocking Technology Act of Hearing at 29 (statement of Maria A. Pallante, agreements/free-trade-agreements/bahrain-fta/final-
2015 would amend both the anticircumvention and Register of Copyrights and Director, U.S. Copyright text; United States-Chile Free Trade Agreement,
anti-trafficking provisions of section 1201(a) to Office). U.S.-Chile, art. 17.7.5, June 6, 2003, 42 I.L.M. 1026,
prohibit such conduct only when done with the 50 2015 Recommendation at 307. Legislation http://www.ustr.gov/trade-agreements/free-trade-
intent to facilitate the infringement of a copyrighted recently introduced in Congress would increase agreements/chile-fta/final-text; United States-
work. H.R. 1587 sec. 2(a). exemptions for reverse engineering, encryption Colombia Trade Promotion Agreement, U.S.-
44 2015 Recommendation at 2; Register’s research, the protection of personally identifying Colom., art. 16.7.4, Nov. 22, 2006, http://
Perspective on Copyright Review Hearing at 29–30 information, and security testing. See Breaking www.ustr.gov/trade-agreements/free-trade-
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![Federal Register / Vol. 80, No. 249 / Tuesday, December 29, 2015 / Notices 81373
modify or amend Section 1201 would circumvention of technological Other
require consideration of the United measures in section 1201(a). 10. To what extent and how might
States’ international obligations. 2. How should section 1201 any proposed amendments to section
C. Relationship to Software Study accommodate interests that are outside 1201 implicate the United States’ trade
of core copyright concerns, for example, and treaty obligations?
The scope of this study is limited to in cases where circumvention of access 11. Please identify any pertinent
the operation and effectiveness of controls protecting computer programs issues not referenced above that the
section 1201. It is not intended to focus implicates issues of product Copyright Office should consider in
on broader issues concerning the role of interoperability or public safety? conducting its study.
copyright with respect to software
embedded in everyday products. Those Rulemaking Process Dated: December 22, 2015.
issues are the subject of a separate and 3. Should section 1201 be adjusted to Maria A. Pallante,
concurrent Copyright Office study.56 provide for presumptive renewal of Register of Copyrights, U.S. Copyright Office.
Although, as noted, section 1201 previously granted exemptions—for [FR Doc. 2015–32678 Filed 12–28–15; 8:45 am]
certainly has implications for the use of example, when there is no meaningful BILLING CODE 1410–30–P
such products, members of the public opposition to renewal—or otherwise be
who wish to address the impact of other modified to streamline the process of
provisions of copyright law on continuing an existing exemption? If so, NATIONAL AERONAUTICS AND
embedded software are encouraged to how? SPACE ADMINISTRATION
submit comments in that separate 4. Please assess the current legal [Notice (15–122)]
process. More information about the requirements that proponents of an
Software-Enabled Consumer Products exemption must satisfy to demonstrate Privacy Act of 1974; Privacy Act
Study may be found at http:// entitlement to an exemption. Should System of Records
www.copyright.gov/policy/software/. they be altered? If so, how? In
responding, please comment on the AGENCY: National Aeronautics and
II. Subjects of Inquiry Space Administration (NASA).
relationship to traditional principles of
The Office invites written comments administrative law. ACTION: Notice of proposed revisions to
on the specific subjects below. A party 5. Please provide additional existing Privacy Act systems of records.
choosing to respond to this Notice of suggestions to improve the rulemaking
Inquiry need not address every subject, SUMMARY: Pursuant to the provisions of
process.
but the Office requests that responding the Privacy Act of 1974 (5 U.S.C. 552a),
parties clearly identify and separately Anti-Trafficking Prohibitions the National Aeronautics and Space
address each subject for which a Administration is issuing public notice
6. Please assess the role of the anti-
response is submitted. its proposal to modify a previously
trafficking provisions of sections
noticed system of records and rescind
General 1201(a)(2) and 1201(b) in deterring
another previously noticed system. This
copyright infringement, and address
1. Please provide any insights or notice publishes details of the proposed
whether any amendments may be
observations regarding the role and updates as set forth below under the
advisable.
effectiveness of the prohibition on caption SUPPLEMENTARY INFORMATION.
7. Should section 1201 be amended to
DATES: Submit comments within 30
allow the adoption of exemptions to the
agreements/colombia-fta/final-text; Dominican prohibition on circumvention that can calendar days from the date of this
Republic-Central America-United States Free Trade
extend to exemptions to the anti- publication. The changes will take effect
Agreement, U.S.-Costa Rica-Dom. Rep.-El Sal.- at the end of that period, if no adverse
Guat.-Hond.-Nicar., art 15.5.7, Aug. 5, 2004, 43 trafficking prohibitions, and if so, in
I.L.M. 514, https://ustr.gov/trade-agreements/free- what way? For example, should the comments are received.
trade-agreements/cafta-dr-dominican-republic- Register be able to recommend, and the ADDRESSES: Patti F. Stockman, Privacy
central-america-fta/final-text; United States-Jordan Act Officer, Office of the Chief
Free Trade Agreement, U.S.-Jordan, art. 4(13), Oct. Librarian able to adopt, exemptions that
24, 2000, 41 I.L.M. 63, http://www.ustr.gov/trade- permit third-party assistance when Information Officer, National
agreements/free-trade-agreements/jordan-fta/final- justified by the record? Aeronautics and Space Administration
text; United States-Korea Free Trade Agreement, Headquarters, Washington, DC 20546–
U.S.-S. Kor. art. 18.4.7, June 30, 2007, 46 I.L.M. 642, Permanent Exemptions 0001, (202) 358–4787, NASA–
https://ustr.gov/trade-agreements/free-trade-
agreements/korus-fta/final-text; United States- 8. Please assess whether the existing PAOfficer@nasa.gov.
Morocco Free Trade Agreement, U.S.-Morocco, art. categories of permanent exemptions are FOR FURTHER INFORMATION CONTACT:
15.5.8, June 15, 2004, 44 I.L.M. 544, http:// necessary, relevant, and/or sufficient. NASA Privacy Act Officer, Patti F.
www.ustr.gov/trade-agreements/free-trade-
agreements/morocco-fta/final-text; United States-
How do the permanent exemptions Stockman, (202) 358–4787, NASA–
Oman Free Trade Agreement, U.S.-Oman, art. affect the current state of reverse PAOfficer@nasa.gov.
15.4.7, Jan. 19, 2006, http://www.ustr.gov/trade- engineering, encryption research, and SUPPLEMENTARY INFORMATION: Pursuant
agreements/free-trade-agreements/oman-fta/final- security testing? How do the permanent to the provisions of the Privacy Act of
text; United States-Panama Trade Promotion
Agreement, U.S.-Pan., art 15.5.7, June 28, 2007,
exemptions affect the activities of 1974, 5 U.S.C. 552a, and as part of its
http://www.ustr.gov/trade-agreements/free-trade- libraries, archives, and educational biennial System of Records review,
agreements/panama-tpa/final-text; United States- institutions? How might the existing NASA is making the following minor
asabaliauskas on DSK5VPTVN1PROD with NOTICES
Peru Trade Promotion Agreement, U.S.-Peru, art. permanent exemptions be amended to modifications of its system of records
16.7.4, Apr. 12, 2006, http://www.ustr.gov/trade-
agreements/free-trade-agreements/peru-tpa/final-
better facilitate such activities? Exchange Records on Individuals/NASA
text; United States-Singapore Free Trade 9. Please assess whether there are 10XROI: Inclusion of a statement of
Agreement, U.S.-Sing., art. 16.4.7, May 6, 2003, 42 other permanent exemption categories purpose for the system of records;
I.L.M. 1026, https://ustr.gov/trade-agreements/free- that Congress should consider updates of system and subsystem
trade-agreements/singapore-fta/final-text.
56 See Software-Enabled Consumer Products establishing—for example, to facilitate managers; clarification of routine uses;
Study: Notice and Request for Public Comment, 80 access to literary works by print- and correction of previous
FR 77668 (Dec. 15, 2015). disabled persons? typographical errors. Further, NASA
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Document Created: 2015-12-29 10:15:06
Document Modified: 2015-12-29 10:15:06
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of inquiry. | |
| Dates | Written comments must be received no later than 11:59 p.m. Eastern Time on February 25, 2016. Written reply comments must be received no later than 11:59 p.m. Eastern Time on March 25, 2016. The Office will be announcing one or more public meetings, to take place after written comments are received, by separate notice in the future. | |
| Contact | Regan A. Smith, Associate General Counsel, by email at [email protected] or by telephone at 202-707-8350; or Kevin Amer, Senior Counsel for Policy and International Affairs, by email at [email protected] or by telephone at 202-707-8350. | |
| FR Citation | 80 FR 81369 |
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