83 FR 52176 - Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being Commercially Exploited
LIBRARY OF CONGRESS
Copyright Office Federal Register Volume 83, Issue 200 (October 16, 2018)
Copyright Office
Federal Register Volume 83, Issue 200 (October 16, 2018)
| Page Range | 52176-52178 | |
| FR Document | 2018-22516 |
[Federal Register Volume 83, Number 200 (Tuesday, October 16, 2018)] [Proposed Rules] [Pages 52176-52178] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-22516] ======================================================================= ----------------------------------------------------------------------- LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 2018-8] Noncommercial Use of Pre-1972 Sound Recordings That Are Not Being Commercially Exploited AGENCY: U.S. Copyright Office, Library of Congress. ACTION: Notice of inquiry. ----------------------------------------------------------------------- SUMMARY: The U.S. Copyright Office is issuing a notice of inquiry regarding the Classics Protection and Access Act, title II of the recently enacted Orrin G. Hatch-Bob Goodlatte Music Modernization Act. In connection with the establishment of federal remedies for unauthorized uses of sound recordings fixed before February 15, 1972 (``Pre-1972 Sound Recordings''), Congress also established an exception for certain noncommercial uses of Pre-1972 Sound Recordings that are not being commercially exploited. To qualify for this exemption, a user must file a notice of noncommercial use after conducting a good faith, reasonable search to determine whether the Pre-1972 Sound Recording is being commercially exploited, and the rights owner of the sound recording must not object to the use within 90 days. To promulgate the regulations required by the new statute, the Office is soliciting comments regarding specific steps that a user should take to demonstrate she has made a good faith, reasonable search. The Office also solicits comments regarding the filing requirements for the user to submit a notice of noncommercial use and for a rights owner to submit a notice objecting to such use. DATES: Initial written comments must be received no later than 11:59 p.m. Eastern Time on November 15, 2018. Written reply comments must be received no later than 11:59 p.m. Eastern Time on November 30, 2018. Rather than reserving time for potential extensions of time to file comments, commenting parties should be aware that the Office has already established what it believes to be the most reasonable deadlines consistent with the statutory deadlines by which it must promulgate the regulations described in this notice of inquiry. ADDRESSES: For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office's website at https://www.copyright.gov/rulemaking/pre1972-soundrecordings-noncommercial/. If electronic submission of comments is not feasible due to lack of access to a computer and/or the internet, please contact the Office using the contact information below for special instructions. FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and Associate Register of Copyrights, by email at [email protected], Anna Chauvet, Assistant General Counsel, by email at [email protected], or Jason E. Sloan, Assistant General Counsel, by email at [email protected]. Each can be contacted by telephone by calling (202) 707-8350. SUPPLEMENTARY INFORMATION: I. Background On October 11, 2018, the president signed into law the Orrin G. Hatch-Bob Goodlatte Music Modernization Act, H.R. 1551 (``MMA''). Title II of the MMA, the Classics Protection and Access Act, created chapter 14 of the copyright law, title 17, United States Code, which, among other things, extends remedies for copyright infringement to owners of sound recordings fixed before February 15, 1972 (``Pre-1972 Sound Recordings''). Under the provision, rights owners may be eligible to recover statutory damages [[Page 52177]] and/or attorneys' fees for the unauthorized use of their Pre-1972 Sound Recordings if certain requirements are met. To be eligible for these remedies, rights owners must typically file schedules listing their Pre-1972 Sound Recordings (``Pre-1972 Schedules'') with the U.S. Copyright Office (the ``Office''), which are indexed into the Office's public records.\1\ The filing requirement is ``designed to operate in place of a formal registration requirement that normally applies to claims involving statutory damages.'' \2\ --------------------------------------------------------------------------- \1\ 17 U.S.C. 1401(f)(5)(A)(i)(I)-(II). \2\ H.R. Rep. No. 115-651, at 16 (2018); see S. Rep. No. 115- 339, at 18 (2018). --------------------------------------------------------------------------- The MMA also creates a new mechanism for the public to obtain authorization to make noncommercial uses of Pre-1972 Sound Recordings that are not being commercially exploited. Under section 1401, a person may file a notice with the Copyright Office and propose a specific noncommercial use after taking steps to determine whether the recording is, at that time, being commercially exploited by or under the authority of the rights owner.\3\ Specifically, before determining that the recording is not being commercially exploited, she must first undertake a ``good faith, reasonable search'' of both the Pre-1972 Schedules indexed by the Copyright Office and music services ``offering a comprehensive set of sound recordings for sale or streaming.'' \4\ At that point, she may file a notice identifying the Pre-1972 Sound Recording and nature of the intended noncommercial use with the Office (``Notice of Pre-1972 Noncommercial Use'').\5\ The Office will index this notice into its public records.\6\ --------------------------------------------------------------------------- \3\ 17 U.S.C. 1401(c)(1)(A)-(B). \4\ 17 U.S.C. 1401(c)(1)(A). \5\ Id. 1401(c)(1)(B). \6\ Id. 1401(c)(1)(C). --------------------------------------------------------------------------- In response, the rights owner of the Pre-1972 Sound Recording may file a notice with the Copyright Office ``opting out'' of (i.e., objecting to) the noncommercial use (``Pre-1972 Opt-Out Notice''), and if the user nonetheless engages in the noncommercial use, such use may subject the user to liability under section 1401(a) if no other limitation on liability applies.\7\ The rights owner of the Pre-1972 Sound Recording has 90 days from when the Notice of Pre-1972 Noncommercial Use is indexed into the Office's public records to file a Pre-1972 Opt-Out Notice.\8\ If, however, the rights owner does not opt- out within 90 days, the user may engage in the noncommercial use of the Pre-1972 Sound Recording without violating section 1401(a).\9\ The filing of a Notice of Pre-1972 Noncommercial Use does not affect any limitation on the exclusive rights of a copyright owner described in sections 107, 108, 109, 110, or 112(f) of the Copyright Act, as applied to a claim of unauthorized use of a Pre-1972 Sound Recording.\10\ --------------------------------------------------------------------------- \7\ Id. 1401(c)(1). \8\ Id. 1401(c)(1)(C). \9\ Id. 1401(c)(1). \10\ Id. 1401(c)(2)(C). --------------------------------------------------------------------------- Under the Classics Protection and Access Act, the Copyright Office has 180 days to issue regulations identifying the ``specific, reasonable steps that, if taken by a [noncommercial user of a Pre-1972 Sound Recording], are sufficient to constitute a good faith, reasonable search'' of the Office's records and commercial services to support a conclusion that a relevant Pre-1972 Sound Recording is not being commercially exploited.\11\ Once this regulation is promulgated, a user following the ``specific, reasonable steps'' identified by the Office will be shielded from liability, even if the sound recording is later discovered to be commercially exploited.\12\ Other searches may also satisfy the statutory requirement of conducting a good faith search, but the user would need to independently demonstrate how she met the statutory requirement if challenged.\13\ --------------------------------------------------------------------------- \11\ Id. 1401(c)(3)(A). \12\ Id. 1401(c)(4)(B). \13\ Id. 1401(c)(4)(A)-(B). --------------------------------------------------------------------------- The Office must also issue regulations ``establish[ing] the form, content, and procedures'' for users to file Notices of Pre-1972 Noncommercial Use and rights owners to file Pre-1972 Opt-Out Notices.\14\ --------------------------------------------------------------------------- \14\ Id. 1401(c)(3)(B), (5)(A). --------------------------------------------------------------------------- II. Subjects of Inquiry A. Good Faith, Reasonable Search The Copyright Office seeks public input regarding the ``specific, reasonable steps'' that should be sufficient for a user to undertake to satisfy the requirement to conduct a ``good faith, reasonable search'' and qualify for the noncommercial use safe harbor.\15\ --------------------------------------------------------------------------- \15\ Id. 1401(c)(3)(A), (4)(B). --------------------------------------------------------------------------- Requiring a ``good faith, reasonable search'' to determine whether a work is being commercially exploited is not foreign to copyright law. Under the section 108 exception for libraries and archives, once a published work is in its last twenty years of copyright protection, a library or archives may reproduce, distribute, display, or perform that work, for purposes of preservation, scholarship, or research, provided the institution has determined after ``reasonable investigation'' that the work is not currently subject to normal commercial exploitation.\16\ In addition, the Office has examined ``good faith'' searches of works in the context of orphan works (i.e., works for which a good faith prospective user cannot readily identify and/or locate the copyright owner(s) in a situation where permission from the copyright owner(s) is necessary as a matter of law).\17\ In its 2015 policy study on orphan works, the Office recommended that any limitation on liability for using an orphan work must require, among other things, that users have performed a ``good faith, qualifying search to locate and identify the owner of the infringed copyright before the use of the work began.'' \18\ Similarly, for example, in 2008, the U.S. Senate passed a bill that would have limited liability for the use of orphan works where a user, before making a use, ``performed and documented a qualifying search, in good faith, to locate and identify the owner of the infringed copyright.'' \19\ The bill stated that a qualifying search was one where the user ``undertakes a diligent effort that is reasonable under the circumstances to locate the owner of the infringed copy,'' which required, at a minimum: ``a search of the records of the Copyright Office that are available to the public through the internet . . .''; ``use of appropriate technology tools, printed publications, and where reasonable, internal or external expert assistance''; ``use of appropriate databases, including databases that are available to the public through the internet''; and ``any actions that are reasonable and appropriate under the facts relevant to the search, including actions based on facts known at the start of the search and facts uncovered during the search, and including a review, as appropriate, of Copyright Office records not available to the public through the internet that are reasonably likely to be useful in identifying and locating the copyright owner.'' \20\ --------------------------------------------------------------------------- \16\ 17 U.S.C. 108(h)(1), (2)(A). \17\ U.S. Copyright Office, Orphan Works and Mass Digitization 56 (2015), https://www.copyright.gov/orphan/reports/orphan-works2015.pdf. \18\ Id. \19\ Shawn Bentley Orphan Works Act, S. 2913, 110th Cong. sec. 514(b)(1) (as passed by Senate, Sept. 26, 2008). \20\ Id. sec. 514(2)(A). --------------------------------------------------------------------------- In this notice of inquiry, the Office seeks practical sources and other information that would allow it to enumerate a list of reasonable steps that a user should undertake as part of a good faith, reasonable search, including services that should be searched. The [[Page 52178]] Office also seeks input on any model methods of search. Specifically: 1. What would constitute a reasonable search of the Office's database of Pre-1972 Schedules, which will index information including the name of the rights owner, title, and featured artist for each sound recording filed on a schedule? 2. Please suggest specific ``services offering a comprehensive set of sound recordings for sale or streaming'' that users should be asked to reasonably search before qualifying for the safe harbor. 3. Which criteria should be used to identify music streaming services that should be searched, now and in the future? For example, one publication recently analyzed search requests for music providers, and determined that the most frequently searched services were YouTube Music, Amazon Music, Apple Music, Pandora, and Spotify.\21\ Is this a reasonable list, or should the Office consider different and/or additional analytics, such as catalog size, number of listeners, or inclusion into indexes such as Nielsen Music? To that end, Billboard recently added the iHeartRadio subscription stream to various streaming-inclusive charts,\22\ and other services, such as SiriusXM, Deezer, Bandcamp, SoundCloud, and Tidal provide music to millions of users. --------------------------------------------------------------------------- \21\ Daniel Sanchez, We Asked a Search Analytics Company to Tell Us the Most Popular Music Services, Digital Music News (June 11, 2018), https://www.digitalmusicnews.com/2018/06/11/most-popular-music-services/. \22\ Billboard Staff, Pandora & iHeartRadio Subscription Streams to Be Added to Billboard Charts, Billboard (June 25, 2018), https://www.billboard.com/articles/news/8462711/pandora-iheartradio-subscription-streams-added-billboard-charts. --------------------------------------------------------------------------- 4. Is it reasonable to expect a user's search to encompass music distribution services, such as CD Baby, TuneCore, or The Orchard? 5. Are there other sources to which the Office should look that may demonstrate commercialization of physical copies of recordings, e.g., vinyl records or compact discs? 6. Are there other specialized services or salesfronts regarding particular genres or eras within the category of Pre-1972 Sound Recordings that should be considered by the Office? 7. How many sources should a user be required to search before qualifying for the safe harbor? In responding, please consider that the Office must promulgate a ``reasonable'' list of steps, but in a way that does not overlook commercialization of Pre-1972 sound recordings. 8. Please describe specific steps that should constitute a reasonable search for a recording on an identified service. Should the steps be service-specific or would a single list of steps be adequate for any identified source? Is the description of a qualifying search described by the 2008 bill referenced above useful in defining whether a user has conducted a reasonable search to determine whether a work is being commercially exploited? B. Filing of Notices of Pre-1972 Noncommercial Use and Pre-1972 Opt-Out Notices The Office also seeks written comments on how it should ``establish the form, content, and procedures'' for users to file Notices of Pre- 1972 Noncommercial Use and rights owners to file Pre-1972 Opt-Out Notices. Specifically: 1. Should the Office provide guidelines as to what constitutes a ``noncommercial'' use, and if so, what? In answering, consider that ``merely recovering costs of production and distribution of a sound recording resulting from a use otherwise permitted under this subsection does not itself necessarily constitute a commercial use of the sound recording,'' and ``the fact that a person engaging in the use of a sound recording also engages in commercial activities does not itself necessarily render the use commercial.'' \23\ For example, should the online use of a work where the user receives website advertising revenue be considered ``commercial''? Should a prospective user be asked to disclose whether they are an individual, or whether they will operate as a commercial or noncommercial entity? --------------------------------------------------------------------------- \23\ 17 U.S.C. 1401(C)(2). --------------------------------------------------------------------------- 2. To what extent should a user be required to specify the nature of the use, such as the expected audience, duration of the use, and whether it will be online or limited to a particular geographic area? 3. How should the user be required to certify or describe the steps taken for a search to constitute a ``good faith, reasonable search''? How detailed should any description be? In responding, the Office encourages commenters to consider other forms and procedures offered by the Office, which reflect operational considerations by the Office, as well as the resources described above.\24\ --------------------------------------------------------------------------- \24\ See, e.g., Document Recordation: Completing and Submitting Declarations of Ownership in Musical Works, U.S. Copyright Office, https://www.copyright.gov/recordation/domw/#requirements (instructions on filing Declarations of Ownership in Musical Works); Requirements and Instructions for Completing and Submitting Schedules of Pre-1972 Sound Recordings, U.S. Copyright Office, https://copyright.gov/music-modernization/pre1972-soundrecordings/schedulefiling-instructions.html (instructions on filing Pre-1972 Schedules); Requirements and Instructions for Completing and Submitting Notices of Contact Information For Transmitting Entities Publicly Performing Pre-1972 Sound Recordings, U.S. Copyright Office, https://copyright.gov/music-modernization/pre1972-soundrecordings/contactinformation-instructions.html (instructions on filing notices of contact information for transmitting entities publicly performing Pre-1972 Sound Recordings); Modernizing Copyright Recordation, 82 FR 52213 (Nov. 13, 2017) (issuing interim rule amending regulations governing recordation of transfers of copyright ownership, other documents pertaining to a copyright, and notices of termination). --------------------------------------------------------------------------- Depending on the feedback received, the Office will either issue an interim rule, or a notice of proposed rulemaking with further request for comment. Dated: October 11, 2018. Regan A. Smith, General Counsel and Associate Register of Copyrights. [FR Doc. 2018-22516 Filed 10-15-18; 8:45 am] BILLING CODE 1410-30-P
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Instructions of Boeing Alert Service Bulletin phone and fax: 206–231–3525; email: lu.lu@ a user should take to demonstrate she
737–53A1360, dated June 21, 2018, that are faa.gov. has made a good faith, reasonable
required by paragraph (h) of this AD, for that (2) For information about AMOCs, contact search. The Office also solicits
modified tooling hole location only. George Garrido, Aerospace Engineer, comments regarding the filing
(2) Accomplishment of an high frequency Airframe Section, FAA, Los Angeles ACO
eddy current inspection specified in Part 9 of Branch, 3960 Paramount Boulevard,
requirements for the user to submit a
the Accomplishment Instructions of Boeing Lakewood, CA 90712–4137; phone: 562–627– notice of noncommercial use and for a
Alert Service Bulletin 737–53A1360, dated 5232; fax: 562–627–5210; email: rights owner to submit a notice
June 21, 2018, terminates the repetitive george.garrido@faa.gov. objecting to such use.
inspections specified in Part 2 of the (3) For service information identified in DATES: Initial written comments must be
Accomplishment Instructions of Boeing Alert this AD, contact Boeing Commercial received no later than 11:59 p.m.
Service Bulletin 737–53A1360, dated June Airplanes, Attention: Contractual & Data Eastern Time on November 15, 2018.
21, 2018, that are required by paragraph (h) Services (C&DS), 2600 Westminster Blvd., Written reply comments must be
of this AD, at the uppermost frame splice MC 110–SK57, Seal Beach, CA 90740–5600;
telephone 562–797–1717; internet https://
received no later than 11:59 p.m.
fastener location only.
www.myboeingfleet.com. You may view this Eastern Time on November 30, 2018.
(k) Alternative Methods of Compliance referenced service information at the FAA, Rather than reserving time for potential
(AMOCs) Transport Standards Branch, 2200 South extensions of time to file comments,
(1) The Manager, Los Angeles ACO Branch, 216th St., Des Moines, WA. For information commenting parties should be aware
FAA, has the authority to approve AMOCs on the availability of this material at the that the Office has already established
for this AD, if requested using the procedures FAA, call 206–231–3195. what it believes to be the most
found in 14 CFR 39.19. In accordance with reasonable deadlines consistent with the
14 CFR 39.19, send your request to your Issued in Des Moines, Washington, on
October 4, 2018.
statutory deadlines by which it must
principal inspector or local Flight Standards
District Office, as appropriate. If sending promulgate the regulations described in
Michael Kaszycki,
information directly to the manager of the this notice of inquiry.
Acting Director, System Oversight Division,
certification office, send it to the attention of ADDRESSES: For reasons of government
Aircraft Certification Service.
the person identified in paragraph (l)(2) of efficiency, the Copyright Office is using
this AD. Information may be emailed to: 9- [FR Doc. 2018–22278 Filed 10–15–18; 8:45 am]
the regulations.gov system for the
ANM-LAACO-AMOC-Requests@faa.gov. BILLING CODE 4910–13–P
submission and posting of public
(2) Before using any approved AMOC, comments in this proceeding. All
notify your appropriate principal inspector,
or lacking a principal inspector, the manager
comments are therefore to be submitted
LIBRARY OF CONGRESS electronically through regulations.gov.
of the local flight standards district office/
certificate holding district office. Specific instructions for submitting
Copyright Office
(3) An AMOC that provides an acceptable comments are available on the
level of safety may be used for any repair, Copyright Office’s website at https://
37 CFR Part 201
modification, or alteration required by this www.copyright.gov/rulemaking/
AD if it is approved by the Boeing [Docket No. 2018–8] pre1972-soundrecordings-
Commercial Airplanes Organization noncommercial/. If electronic
Designation Authorization (ODA) that has Noncommercial Use of Pre-1972 Sound submission of comments is not feasible
been authorized by the Manager, Los Angeles Recordings That Are Not Being
ACO Branch, FAA, to make those findings.
due to lack of access to a computer and/
Commercially Exploited or the internet, please contact the Office
To be approved, the repair method,
modification deviation, or alteration AGENCY: U.S. Copyright Office, Library using the contact information below for
deviation must meet the certification basis of of Congress. special instructions.
the airplane, and the approval must ACTION: Notice of inquiry. FOR FURTHER INFORMATION CONTACT:
specifically refer to this AD. Regan A. Smith, General Counsel and
(4) Except as required by paragraph (i) of SUMMARY: The U.S. Copyright Office is Associate Register of Copyrights, by
this AD: For service information that issuing a notice of inquiry regarding the email at regans@copyright.gov, Anna
contains steps that are labeled as RC, the Classics Protection and Access Act, title
provisions of paragraphs (k)(4)(i) and
Chauvet, Assistant General Counsel, by
(k)(4)(ii) of this AD apply.
II of the recently enacted Orrin G. email at achau@copyright.gov, or Jason
(i) The steps labeled as RC, including Hatch–Bob Goodlatte Music E. Sloan, Assistant General Counsel, by
substeps under an RC step and any figures Modernization Act. In connection with email at jslo@copyright.gov. Each can be
identified in an RC step, must be done to the establishment of federal remedies contacted by telephone by calling (202)
comply with the AD. If a step or substep is for unauthorized uses of sound 707–8350.
labeled ‘‘RC Exempt,’’ then the RC recordings fixed before February 15, SUPPLEMENTARY INFORMATION:
requirement is removed from that step or 1972 (‘‘Pre-1972 Sound Recordings’’),
substep. An AMOC is required for any Congress also established an exception I. Background
deviations to RC steps, including substeps for certain noncommercial uses of Pre- On October 11, 2018, the president
and identified figures.
(ii) Steps not labeled as RC may be
1972 Sound Recordings that are not signed into law the Orrin G. Hatch–Bob
deviated from using accepted methods in being commercially exploited. To Goodlatte Music Modernization Act,
accordance with the operator’s maintenance qualify for this exemption, a user must H.R. 1551 (‘‘MMA’’). Title II of the
or inspection program without obtaining file a notice of noncommercial use after MMA, the Classics Protection and
approval of an AMOC, provided the RC steps, conducting a good faith, reasonable Access Act, created chapter 14 of the
amozie on DSK3GDR082PROD with PROPOSALS1
including substeps and identified figures, can search to determine whether the Pre- copyright law, title 17, United States
still be done as specified, and the airplane 1972 Sound Recording is being Code, which, among other things,
can be put back in an airworthy condition. commercially exploited, and the rights extends remedies for copyright
(l) Related Information owner of the sound recording must not infringement to owners of sound
(1) For more information about this AD, object to the use within 90 days. To recordings fixed before February 15,
contact Lu Lu, Aerospace Engineer, Airframe promulgate the regulations required by 1972 (‘‘Pre-1972 Sound Recordings’’).
Section, FAA, Seattle ACO Branch, 2200 the new statute, the Office is soliciting Under the provision, rights owners may
South 216th St., Des Moines, WA 98198; comments regarding specific steps that be eligible to recover statutory damages
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and/or attorneys’ fees for the without violating section 1401(a).9 The after ‘‘reasonable investigation’’ that the
unauthorized use of their Pre-1972 filing of a Notice of Pre-1972 work is not currently subject to normal
Sound Recordings if certain Noncommercial Use does not affect any commercial exploitation.16 In addition,
requirements are met. To be eligible for limitation on the exclusive rights of a the Office has examined ‘‘good faith’’
these remedies, rights owners must copyright owner described in sections searches of works in the context of
typically file schedules listing their Pre- 107, 108, 109, 110, or 112(f) of the orphan works (i.e., works for which a
1972 Sound Recordings (‘‘Pre-1972 Copyright Act, as applied to a claim of good faith prospective user cannot
Schedules’’) with the U.S. Copyright unauthorized use of a Pre-1972 Sound readily identify and/or locate the
Office (the ‘‘Office’’), which are indexed Recording.10 copyright owner(s) in a situation where
into the Office’s public records.1 The Under the Classics Protection and permission from the copyright owner(s)
filing requirement is ‘‘designed to Access Act, the Copyright Office has is necessary as a matter of law).17 In its
operate in place of a formal registration 180 days to issue regulations identifying 2015 policy study on orphan works, the
requirement that normally applies to the ‘‘specific, reasonable steps that, if Office recommended that any limitation
claims involving statutory damages.’’ 2 taken by a [noncommercial user of a on liability for using an orphan work
The MMA also creates a new Pre-1972 Sound Recording], are must require, among other things, that
mechanism for the public to obtain sufficient to constitute a good faith, users have performed a ‘‘good faith,
authorization to make noncommercial reasonable search’’ of the Office’s qualifying search to locate and identify
uses of Pre-1972 Sound Recordings that records and commercial services to the owner of the infringed copyright
are not being commercially exploited. support a conclusion that a relevant Pre- before the use of the work began.’’ 18
Under section 1401, a person may file 1972 Sound Recording is not being Similarly, for example, in 2008, the U.S.
a notice with the Copyright Office and commercially exploited.11 Once this Senate passed a bill that would have
propose a specific noncommercial use regulation is promulgated, a user limited liability for the use of orphan
after taking steps to determine whether following the ‘‘specific, reasonable works where a user, before making a
the recording is, at that time, being steps’’ identified by the Office will be use, ‘‘performed and documented a
commercially exploited by or under the shielded from liability, even if the qualifying search, in good faith, to
authority of the rights owner.3 sound recording is later discovered to be locate and identify the owner of the
Specifically, before determining that the commercially exploited.12 Other infringed copyright.’’ 19 The bill stated
recording is not being commercially searches may also satisfy the statutory that a qualifying search was one where
exploited, she must first undertake a requirement of conducting a good faith the user ‘‘undertakes a diligent effort
‘‘good faith, reasonable search’’ of both search, but the user would need to that is reasonable under the
the Pre-1972 Schedules indexed by the independently demonstrate how she circumstances to locate the owner of the
Copyright Office and music services met the statutory requirement if infringed copy,’’ which required, at a
‘‘offering a comprehensive set of sound challenged.13 minimum: ‘‘a search of the records of
recordings for sale or streaming.’’ 4 At The Office must also issue regulations the Copyright Office that are available to
that point, she may file a notice ‘‘establish[ing] the form, content, and the public through the internet . . .’’;
identifying the Pre-1972 Sound procedures’’ for users to file Notices of ‘‘use of appropriate technology tools,
Recording and nature of the intended Pre-1972 Noncommercial Use and rights printed publications, and where
noncommercial use with the Office owners to file Pre-1972 Opt-Out reasonable, internal or external expert
(‘‘Notice of Pre-1972 Noncommercial Notices.14 assistance’’; ‘‘use of appropriate
Use’’).5 The Office will index this notice
II. Subjects of Inquiry databases, including databases that are
into its public records.6
available to the public through the
In response, the rights owner of the A. Good Faith, Reasonable Search
Pre-1972 Sound Recording may file a internet’’; and ‘‘any actions that are
The Copyright Office seeks public reasonable and appropriate under the
notice with the Copyright Office ‘‘opting
input regarding the ‘‘specific, reasonable facts relevant to the search, including
out’’ of (i.e., objecting to) the
steps’’ that should be sufficient for a actions based on facts known at the start
noncommercial use (‘‘Pre-1972 Opt-Out
user to undertake to satisfy the of the search and facts uncovered during
Notice’’), and if the user nonetheless
requirement to conduct a ‘‘good faith, the search, and including a review, as
engages in the noncommercial use, such
use may subject the user to liability reasonable search’’ and qualify for the appropriate, of Copyright Office records
under section 1401(a) if no other noncommercial use safe harbor.15 not available to the public through the
Requiring a ‘‘good faith, reasonable internet that are reasonably likely to be
limitation on liability applies.7 The
search’’ to determine whether a work is useful in identifying and locating the
rights owner of the Pre-1972 Sound
being commercially exploited is not copyright owner.’’ 20
Recording has 90 days from when the
foreign to copyright law. Under the
Notice of Pre-1972 Noncommercial Use In this notice of inquiry, the Office
section 108 exception for libraries and
is indexed into the Office’s public seeks practical sources and other
archives, once a published work is in its
records to file a Pre-1972 Opt-Out information that would allow it to
last twenty years of copyright
Notice.8 If, however, the rights owner enumerate a list of reasonable steps that
does not opt-out within 90 days, the protection, a library or archives may
a user should undertake as part of a
user may engage in the noncommercial reproduce, distribute, display, or
good faith, reasonable search, including
use of the Pre-1972 Sound Recording perform that work, for purposes of
services that should be searched. The
preservation, scholarship, or research,
amozie on DSK3GDR082PROD with PROPOSALS1
1 17 U.S.C. 1401(f)(5)(A)(i)(I)–(II).
provided the institution has determined 16 17 U.S.C. 108(h)(1), (2)(A).
2 H.R.Rep. No. 115–651, at 16 (2018); see S. Rep. 17 U.S.
9 Id.
Copyright Office, Orphan Works and Mass
No. 115–339, at 18 (2018). 1401(c)(1). Digitization 56 (2015), https://www.copyright.gov/
3 17 U.S.C. 1401(c)(1)(A)–(B). 10 Id. 1401(c)(2)(C). orphan/reports/orphan-works2015.pdf.
4 17 U.S.C. 1401(c)(1)(A). 11 Id. 1401(c)(3)(A). 18 Id.
5 Id. 1401(c)(1)(B). 12 Id. 1401(c)(4)(B). 19 Shawn Bentley Orphan Works Act, S. 2913,
6 Id. 1401(c)(1)(C). 13 Id. 1401(c)(4)(A)–(B).
110th Cong. sec. 514(b)(1) (as passed by Senate,
7 Id. 1401(c)(1). 14 Id. 1401(c)(3)(B), (5)(A). Sept. 26, 2008).
8 Id. 1401(c)(1)(C). 15 Id. 1401(c)(3)(A), (4)(B). 20 Id. sec. 514(2)(A).
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Office also seeks input on any model 8. Please describe specific steps that Depending on the feedback received,
methods of search. Specifically: should constitute a reasonable search the Office will either issue an interim
1. What would constitute a reasonable for a recording on an identified service. rule, or a notice of proposed rulemaking
search of the Office’s database of Pre- Should the steps be service-specific or with further request for comment.
1972 Schedules, which will index would a single list of steps be adequate Dated: October 11, 2018.
information including the name of the for any identified source? Is the
Regan A. Smith,
rights owner, title, and featured artist for description of a qualifying search
General Counsel and Associate Register of
each sound recording filed on a described by the 2008 bill referenced
Copyrights.
schedule? above useful in defining whether a user
[FR Doc. 2018–22516 Filed 10–15–18; 8:45 am]
2. Please suggest specific ‘‘services has conducted a reasonable search to
determine whether a work is being BILLING CODE 1410–30–P
offering a comprehensive set of sound
recordings for sale or streaming’’ that commercially exploited?
users should be asked to reasonably B. Filing of Notices of Pre-1972
search before qualifying for the safe POSTAL REGULATORY COMMISSION
Noncommercial Use and Pre-1972 Opt-
harbor. Out Notices 39 CFR Part 3050
3. Which criteria should be used to
identify music streaming services that The Office also seeks written [Docket No. RM2019–1; Order No. 4849]
should be searched, now and in the comments on how it should ‘‘establish
future? For example, one publication the form, content, and procedures’’ for Periodic Reporting
recently analyzed search requests for users to file Notices of Pre-1972
Noncommercial Use and rights owners AGENCY: Postal Regulatory Commission.
music providers, and determined that
to file Pre-1972 Opt-Out Notices. ACTION: Notice of proposed rulemaking.
the most frequently searched services
were YouTube Music, Amazon Music, Specifically:
1. Should the Office provide SUMMARY: The Commission is
Apple Music, Pandora, and Spotify.21 Is acknowledging a recent filing requesting
this a reasonable list, or should the guidelines as to what constitutes a
‘‘noncommercial’’ use, and if so, what? the Commission initiate a rulemaking
Office consider different and/or proceeding to consider changes to
additional analytics, such as catalog In answering, consider that ‘‘merely
recovering costs of production and analytical principles relating to periodic
size, number of listeners, or inclusion reports (Proposal Eight). This document
into indexes such as Nielsen Music? To distribution of a sound recording
resulting from a use otherwise permitted informs the public of the filing, invites
that end, Billboard recently added the public comment, and takes other
iHeartRadio subscription stream to under this subsection does not itself
necessarily constitute a commercial use administrative steps.
various streaming-inclusive charts,22
of the sound recording,’’ and ‘‘the fact DATES: Comments are due: November 9,
and other services, such as SiriusXM,
that a person engaging in the use of a 2018.
Deezer, Bandcamp, SoundCloud, and
Tidal provide music to millions of sound recording also engages in ADDRESSES: Submit comments
users. commercial activities does not itself electronically via the Commission’s
4. Is it reasonable to expect a user’s necessarily render the use Filing Online system at http://
search to encompass music distribution commercial.’’ 23 For example, should www.prc.gov. Those who cannot submit
services, such as CD Baby, TuneCore, or the online use of a work where the user comments electronically should contact
The Orchard? receives website advertising revenue be the person identified in the FOR FURTHER
5. Are there other sources to which considered ‘‘commercial’’? Should a INFORMATION CONTACT section by
the Office should look that may prospective user be asked to disclose telephone for advice on filing
demonstrate commercialization of whether they are an individual, or alternatives.
physical copies of recordings, e.g., vinyl whether they will operate as a
FOR FURTHER INFORMATION CONTACT:
records or compact discs? commercial or noncommercial entity?
2. To what extent should a user be David A. Trissell, General Counsel, at
6. Are there other specialized services 202–789–6820.
required to specify the nature of the use,
or salesfronts regarding particular SUPPLEMENTARY INFORMATION:
such as the expected audience, duration
genres or eras within the category of
of the use, and whether it will be online Table of Contents
Pre-1972 Sound Recordings that should
or limited to a particular geographic
be considered by the Office? I. Introduction
area?
7. How many sources should a user be 3. How should the user be required to II. Proposal Eight
required to search before qualifying for certify or describe the steps taken for a
the safe harbor? In responding, please search to constitute a ‘‘good faith, Instructions for Completing and Submitting
consider that the Office must Schedules of Pre-1972 Sound Recordings, U.S.
reasonable search’’? How detailed Copyright Office, https://copyright.gov/music-
promulgate a ‘‘reasonable’’ list of steps, should any description be? In modernization/pre1972-soundrecordings/
but in a way that does not overlook responding, the Office encourages schedulefiling-instructions.html (instructions on
commercialization of Pre-1972 sound commenters to consider other forms and filing Pre-1972 Schedules); Requirements and
recordings. Instructions for Completing and Submitting Notices
procedures offered by the Office, which of Contact Information For Transmitting Entities
reflect operational considerations by the Publicly Performing Pre-1972 Sound Recordings,
21 Daniel Sanchez, We Asked a Search Analytics
Office, as well as the resources U.S. Copyright Office, https://copyright.gov/music-
amozie on DSK3GDR082PROD with PROPOSALS1
Company to Tell Us the Most Popular Music modernization/pre1972-soundrecordings/contact
Services, Digital Music News (June 11, 2018), described above.24 information-instructions.html (instructions on filing
https://www.digitalmusicnews.com/2018/06/11/ notices of contact information for transmitting
most-popular-music-services/. 23 17U.S.C. 1401(C)(2). entities publicly performing Pre-1972 Sound
22 Billboard Staff, Pandora & iHeartRadio 24 See,
e.g., Document Recordation: Completing Recordings); Modernizing Copyright Recordation,
Subscription Streams to Be Added to Billboard and Submitting Declarations of Ownership in 82 FR 52213 (Nov. 13, 2017) (issuing interim rule
Charts, Billboard (June 25, 2018), https:// Musical Works, U.S. Copyright Office, https:// amending regulations governing recordation of
www.billboard.com/articles/news/8462711/ www.copyright.gov/recordation/domw/# transfers of copyright ownership, other documents
pandora-iheartradio-subscription-streams-added- requirements (instructions on filing Declarations of pertaining to a copyright, and notices of
billboard-charts. Ownership in Musical Works); Requirements and termination).
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Document Created: 2018-10-15 23:42:13
Document Modified: 2018-10-15 23:42:13
| 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 | Proposed Rules | |
| Action | Notice of inquiry. | |
| Dates | Initial written comments must be received no later than 11:59 p.m. Eastern Time on November 15, 2018. Written reply comments must be received no later than 11:59 p.m. Eastern Time on November 30, 2018. Rather than reserving time for potential extensions of time to file comments, commenting parties should be aware that the Office has already established what it believes to be the most reasonable deadlines consistent with the statutory deadlines by which it must promulgate the regulations described in this notice of inquiry. | |
| Contact | Regan A. Smith, General Counsel and Associate Register of Copyrights, by email at [email protected], Anna Chauvet, Assistant General Counsel, by email at [email protected]opyright.gov, or Jason E. Sloan, Assistant General Counsel, by email at [email protected] Each can be contacted by telephone by calling (202) 707-8350. | |
| FR Citation | 83 FR 52176 |
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