[Federal Register Volume 67, Number 199 (Tuesday, October 15, 2002)]
[Proposed Rules]
[Pages 63578-63582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26183]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2002-4]


Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Access Control Technologies

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of inquiry.

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SUMMARY: The Copyright Office of the Library of Congress is preparing 
to conduct proceedings mandated by the Digital Millennium Copyright 
Act, which provides that the Librarian of Congress may exempt certain 
classes of works from the prohibition against circumvention of 
technological measures that control access to copyrighted works. The 
purpose of this rulemaking proceeding is to determine whether there are 
particular classes of works as to which users are, or are likely to be, 
adversely affected in their ability to make noninfringing uses due to 
the prohibition on circumvention. This notice requests written comments 
from all interested parties, including representatives of copyright 
owners, educational institutions, libraries and archives, scholars, 
researchers and members of the public, in order to elicit evidence on 
whether noninfringing uses of certain classes of works are, or are 
likely to be, adversely affected by this prohibition on the 
circumvention of measures that control access to copyrighted works.

DATES: Written comments are due by December 18, 2002. Reply comments 
are due by February 19, 2003.

ADDRESSES: Electronic Internet submissions must be made through the 
Copyright Office Web site: http://www.copyright.gov/1201/comment_forms; See section 3 of the SUPPLEMENTARY INFORMATION section for file 
formats and other information about electronic and non-electronic 
filing requirements. If delivered by hand, comments should be delivered 
to the Office of the General Counsel, Copyright Office, LM-403, James 
Madison Memorial Building, 101 Independence Avenue, SE., Washington, 
DC. If delivered by means of the United States Postal Service (see 
section 3 of the SUPPLEMENTARY INFORMATION about continuing mail 
delays), comments should be addressed to David O. Carson, General 
Counsel, Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, 
DC 20024-0400. See SUPPLEMENTARY INFORMATION section for information 
about requirements and formats of submissions.

FOR FURTHER INFORMATION CONTACT: Rob Kasunic, Office of the General 
Counsel, Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, 
DC 20024-0400. Telephone (202) 707-8380; telefax (202) 707-8366.

SUPPLEMENTARY INFORMATION:

1. Mandate for Rulemaking Proceeding

    On October 28, 1998, President Clinton signed into law the Digital 
Millennium Copyright Act, Pub. L. 105-304 (1998). Section 103 
(subtitled ``Copyright Protection Systems and Copyright Management 
Information'') of Title I of the Act added a new Chapter 12 to title 17 
United States Code, which among other things prohibits circumvention of 
access control technologies employed by or on behalf of copyright 
owners to protect their works. Specifically, subsection 1201(a)(1)(A) 
provides, inter alia, that ``No person shall circumvent a technological 
measure that effectively controls access to a work protected under this 
title.'' Subparagraph (B) limits this prohibition. It provides that 
prohibition against circumvention ``shall not apply to persons who are 
users of a copyrighted work which is in a particular class of works, if 
such persons are, or are likely to be in the succeeding 3-year period, 
adversely affected by virtue of such prohibition in their ability to 
make noninfringing uses of that particular class of works under this 
title'' as determined in this rulemaking. This prohibition on 
circumvention became effective two years after the date of enactment, 
on October 28, 2000.
    At the end of the 2-year period between the enactment and effective 
date of the provision, the Librarian of Congress made an initial 
determination as to classes of works to be exempted from the 
prohibition for the first triennial period. Exemption to Prohibition on 
Circumvention of Copyright Protection Systems for Access Control 
Technologies, 65 FR 64556, 64574 (2000) (hereinafter Final Reg.). This 
determination was made upon the recommendation of the Register of 
Copyrights following an extensive rulemaking proceeding. The exemptions 
promulgated by the Librarian in the first rulemaking will remain in 
effect until October 28, 2003. At that point, the exemptions created in 
the first anticircumvention rulemaking will expire and any exemptions 
promulgated in this second anticircumvention rulemaking will take 
effect for a new 3-year period.

2. Background

    Title I of the Digital Millennium Copyright Act was, inter alia, 
the congressional fulfillment of obligations of the United States under 
the WIPO Copyright Treaty and the WIPO Performances and Phonograms 
Treaty. For additional information on the historical background and the 
legislative history of Title I, See Exemption to Prohibition on 
Circumvention of Copyright Protection Systems for Access Control 
Technologies, 64 FR 66139, 66140 (1999) (http://www.loc.gov/copyright/fedreg/1999/64fr66139.html).
    Section 1201 of title 17 of the United States Code prohibits two 
general types of activity: (1) The conduct of ``circumvention'' of 
technological protection measures that control access and (2) 
trafficking in any technology, product, service, device, component, or 
part thereof that protects either access to a copyrighted work or that 
protects the ``rights of the copyright owner,'' if that

[[Page 63579]]

device or service meets one of three conditions. The first type of 
activity, the conduct of circumvention, is prohibited in section 
1201(a)(1). The latter activities, trafficking in devices or services 
that circumvent (1) access or (2) the rights of the copyright owner are 
contained in sections 1201(a)(2) and 1201(b) respectively. In addition 
to these prohibitions, section 1201 also includes a series of section-
specific limitations and exemptions to the prohibitions of section 
1201.

The Anticircumvention Provision at Issue

    Subsection 1201(a)(1) applies when a person who is not authorized 
by the copyright owner to gain access to a work does so by 
circumventing a technological measure put in place by the copyright 
owner to control access to the work. See the Report of the House 
Committee on Commerce on the Digital Millennium Copyright Act of 1998, 
H.R. Rep. No. 105-551, pt. 2, at 36 (1998) (hereinafter Commerce Comm. 
Report).
    That section provides that ``No person shall circumvent a 
technological measure that effectively controls access to a work 
protected under this title.'' 17 U.S.C. 1201(a)(1)(A) (1998). The 
relevant terms are defined:
    (3) As used in this subsection--
    (A) To ``circumvent a technological measure'' means to descramble a 
scrambled work, to decrypt an encrypted work, or otherwise to avoid, 
bypass, remove, deactivate, or impair a technological measure, without 
the authority of the copyright owner; and
    (B) A technological measure ``effectively controls access to a 
work'' if the measure, in the ordinary course of its operation, 
requires the application of information, or a process or a treatment, 
with the authority of the copyright owner, to gain access to the work.

17 U.S.C. 1201(a)(3).

Scope of the Rulemaking

    The statutory focus of this rulemaking is limited to one subsection 
of section 1201: The prohibition on the conduct of circumvention of 
technological measures that control access to copyrighted works. 17 
U.S.C. 1201(a)(1)(C). The Librarian has no authority to limit either of 
the anti-trafficking provisions contained in subsections 1201(a)(2) or 
1201(b). This narrow focus was the subject of a great deal of confusion 
during the first rulemaking and, therefore, demands some clarification.
    This rulemaking addresses only the prohibition on the conduct of 
circumventing measures that control ``access'' to copyrighted works, 
e.g., decryption or hacking of access controls such as passwords or 
serial numbers. The structure of section 1201 is such that there exists 
no comparable prohibition on the conduct of circumventing technological 
measures that protect the ``rights of the copyright owner,'' e.g., the 
section 106 rights to reproduce, adapt, distribute, publicly perform, 
or publicly display a work. Circumventing a technological measure that 
protects these section 106 rights of the copyright owner is governed 
not by section 1201, but rather by the traditional copyright rights and 
the applicable limitations in the Copyright Act. For example, if a 
person circumvents a measure that prohibits printing or saving an 
electronic copy of an article, there is no provision in section 1201 
that precludes this activity. Instead, it would be actionable as 
copyright infringement of the section 106 right of reproduction unless 
an applicable limitation applied, e.g., fair use. The trafficking in, 
inter alia, any device or service that allowed others to circumvent 
such a technological protection measure may, however, be actionable 
under section 1201(b).
    Since section 1201 contains no prohibition on the circumvention of 
technological measures that protect the ``rights of the copyright 
owner,'' sometimes referred to as ``use'' or ``copy'' control measures, 
any effect these measures may have on noninfringing uses would not be 
attributable to a section 1201 prohibition. Since there is a 
prohibition on the act of circumventing a technological measure that 
controls access to a work, and since traditional Copyright Act 
limitations are not defenses to the act of circumventing a 
technological measure that controls access, Congress chose to create 
the current rulemaking proceeding as a ``fail-safe mechanism'' to 
monitor the effect of the anticircumvention provision in 1201(a)(1)(A). 
Commerce Comm. Report, at 36. This anticircumvention rulemaking is 
authorized to monitor the effect of the prohibition on ``access'' 
circumvention on noninfringing uses of copyrighted works. In this 
triennial rulemaking proceeding, effects on noninfringing uses that are 
unrelated to section 1201(a)(1)(A) may not be considered. See 
1201(a)(1)(C).

Burden of Proof

    In the last rulemaking, the Register concluded from the language of 
the statute and the legislative history that a determination to exempt 
a class of works from the prohibition on circumvention must be based on 
a showing that the prohibition has a substantial adverse effect on 
noninfringing uses of a particular class of works. It was determined 
that proponents of an exemption bear the burden of proof that an 
exemption is warranted for a particular class of works and that the 
prohibition is presumed to apply to all classes of works unless an 
adverse impact has been shown. See Commerce Comm. Report, at 37; see 
also Final Reg., 65 FR 64556, 64558.
    In order to meet the burden of proof, proponents of an exemption 
must provide evidence either that actual harm exists or that it is 
``likely'' to occur in the ensuing 3-year period. Actual instances of 
verifiable problems occurring in the marketplace are necessary to 
satisfy the burden with respect to actual harm and a compelling case 
will be based on first-hand knowledge of such problems. While 
``likely'' adverse effects will also be examined in this rulemaking, 
this standard requires proof that adverse effects are more likely than 
not to occur and cannot be based on speculation alone. The House 
Manager's Report stated that an exemption based on ``likely'' future 
adverse impacts during the applicable period should only be made ``in 
extraordinary circumstances in which the evidence of likelihood is 
highly specific, strong and persuasive.'' Staff of the House Committee 
on the Judiciary, 105th Cong., Section-By-Section Analysis of H.R. 2281 
as passed by the United States House of Representatives on August 4, 
1998 (hereinafter House Manager's Report) at 6. While such a statement 
could be interpreted as raising the burden beyond a standard of a 
preponderance of the evidence, the statutory language enacted--
``whether persons who are users of a copyrighted work are, or are 
likely to be in the succeeding 3-year period, adversely affected by the 
prohibition''--does not specify a standard beyond more likely than not. 
Nevertheless, as the Register's final recommendation explained, the 
expectation of ``distinct, verifiable and measurable impacts'' in the 
legislative history as to actual harm suggests that conjecture alone 
would be insufficient to support a finding of ``likely'' adverse 
effect. Final Reg., 65 FR 64556, 64559. A showing of ``likely'' adverse 
impact will necessarily involve prediction, but the burden of proving 
that the expected adverse effect is more likely than other possible 
outcomes is on the proponent of the exemption.
    The identification of a specific problem and the meeting of a 
burden of proof as to a problem is not, however, the end of the 
analysis. For an

[[Page 63580]]

exemption to be warranted in a particular class of works, a proponent 
must show that such problems are or are likely to become of such 
significance that they would constitute a substantial adverse effect. 
De minimis or isolated problems would be insufficient to warrant an 
exemption for a class of works. Similarly, mere inconveniences to 
noninfringing uses or theoretical critiques of Section 1201 would not 
satisfy the requisite showing. House Manager's Report, at 6. There is a 
presumption that the prohibition will apply to any and all classes of 
works, including those as to which an exemption of applicability was 
previously in effect, unless a new showing is made that an exemption is 
warranted. Final Reg., 65 FR 64556, 64558. Exemptions are reviewed de 
novo and prior exemptions will expire unless the case is made in the 
rulemaking proceeding that the prohibition has or will more likely than 
not have an adverse effect on noninfringing uses. A prior argument that 
resulted in an exemption may be less persuasive within the context of 
the marketplace in the next 3-year period. Similarly, proposals that 
were not found to warrant an exemption in the last rulemaking could 
find factual support in the present rulemaking.

Availability of Works in Unprotected Formats

    Other factors must also be balanced with any adverse effects 
attributable to the prohibition on circumvention of technological 
protection measures that protect access to copyrighted works. In making 
her recommendation to the Librarian, the Register is instructed to 
consider the availability for use of copyrighted works. 17 U.S.C. 
1201(a)(1)(C)(i). The Register must also consider whether works 
protected by technological measures that control access are also 
available in the marketplace in formats that are unprotected. The fact 
that a work is available in a format without technological protection 
measures would allow the public to make noninfringing uses of the work 
even if that is not the preferred or optimal format for use. For 
example, in the last rulemaking, although many users claimed that the 
technological measures on motion pictures contained on Digital 
Versatile Disks (DVDs) restricted noninfringing uses of works, a 
balancing consideration was that the vast majority of these works were 
also available in analog format on VHS tapes. Final Reg., 65 FR 64554, 
64568. Such availability is a factor to consider in assessing the need 
for an exemption to the prohibition on circumvention.
    Another consideration relating to the availability for use of 
copyrighted works is whether the measure supports a model that is 
likely to benefit the public. For example, while a measure may limit 
the length of time of access to a work or may limit access to only a 
portion of work, those limitations may benefit the public by providing 
``use-facilitating'' models that will allow users to obtain access to 
works at a lower cost than they would otherwise be able to obtain were 
such restrictions not in place. Similarly, if there is compelling 
evidence that particular classes of works would not be offered at all 
without the protection afforded by technological protection measures 
that control access, this use-facilitating factor must be considered. 
House Manager's Report, at 6. Accord: Final Reg., 65 FR 64556, 64559.

The Scope of the Term ``Class of Works''

    Section 1201 does not define a critical term for the rulemaking 
process: ``class of works.'' In the first rulemaking, the Register 
elicited views on the scope and meaning of this term. After review of 
the statutory language, the legislative history and the extensive 
record in the proceeding,\1\ the Register reached certain conclusions 
on the scope of this term. For a more detailed discussion, see Final 
Reg., 65 FR 64556, 64559.
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    \1\ See Final Reg., 65 FR 64556, 64557 for a description of the 
record in the last rulemaking proceeding.
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    The Register found that the statutory language required that the 
Librarian identify a ``class of works'' primarily based upon attributes 
of the works themselves, and not by reference to some external criteria 
such as the intended use or the users of the works. The phrase ``class 
of works'' connotes that the shared, common attributes of the ``class'' 
relate to the nature of authorship in the ``works.'' Thus a ``class of 
works'' was intended to be a ``narrow and focused subset of the the 
broad categories of works of authorship * * * identified in section 
102.'' Commerce Comm. Report, at 38. The starting point for a proposed 
exemption of a particular class of works must be the section 102 
categories of authorship: literary works; musical works; dramatic 
works; pantomimes and choreographic works; pictorial, graphic and 
sculptural works; motion pictures and other audiovisual works; sound 
recordings; and architectural works.
    This determination is supported by the House Manager's Report which 
discussed the importance of appropriately defining the proper scope of 
the exemption. House Manager's Report, at 7. The legislative history 
stated that it would be highly unlikely for all literary works to be 
adversely affected by the prohibition and therefore, determining an 
appropriate subcategory of the works in this category would be the goal 
of the rulemaking. Id.
    Therefore, the Register concluded that the starting point for 
identifying a particular ``class of works'' to be exempted must be one 
of the section 102 categories. Final Reg., 65 FR 64559-64561. From that 
starting point, it is likely that the scope or boundaries of a 
particular class would need to be further limited to remedy the 
particular harm to noninfringing uses identified in the rulemaking.
    In the first anticircumvention rulemaking, the Register recommended 
and the Librarian agreed that two classes of works should be exempted:
    (1) Compilations consisting of lists of websites blocked by 
filtering software applications; and
    (2) Literary works, including computer programs and databases, 
protected by access control mechanisms that fail to permit access 
because of malfunction, damage or obsoleteness.
    While the first class exempted fits comfortably within the approach 
to classification discussed above, the second class includes the entire 
category of literary works, but narrows the exemption by reference to 
attributes of the technological measures that controls access to the 
works. The Register found that this second class probably reached the 
outer limits of a permissible definition of ``class'' under the 
approach adopted in the first rulemaking.
    Commenters should familiarize themselves with the Register's 
recommendation in the first rulemaking, since many of these issues 
which were unsettled at the start of that rulemaking have been 
addressed in the final decision. Since the bases of those 
determinations were the statute and the legislative history relevant to 
these issues, and since Congress has not provided any additional 
guidance to the Register or the Librarian since that rulemaking's 
conclusion, interested parties should presume that these determinations 
will be applied to the evidence submitted during this second 
anticircumvention rulemaking as well. Of course, commenters may argue 
for adoption of alternative approaches, but a persuasive case will have 
to be made to warrant reconsideration of decisions regarding 
interpretation of section 1201.

[[Page 63581]]

    The exemptions that were published for the first 3-year period of 
the effective date of section 1201(a)(1)(A) are temporary and will 
expire on the last day of such 3-year period, October 27, 2003. This 
rulemaking will examine adverse effects in the current marketplace and 
in the next 3-year period to determine whether any exemptions to the 
prohibition on circumvention of technological protection measures that 
effectively control access to copyrighted works are warranted by the 
evidence raised during this rulemaking.
    This notice requests written comments from all interested parties. 
In addition to the necessary showing discussed above, in order to make 
a prima facie case for a proposed exemption, certain critical points 
must be established. First, a proponent must identify the technological 
measure that is the ultimate source of the alleged problem, and the 
technological measure must effectively control access to a copyrighted 
work. Second, a proponent must specifically explain what noninfringing 
activity the prohibition on circumvention is preventing. Third, a 
proponent must establish that the prevented activity is, in fact, a 
noninfringing use under current law. The nature of the Librarian's 
inquiry is further delineated by the statutory areas to be examined:
    (i) The availability for use of copyrighted works;
    (ii) The availability for use of works for nonprofit archival, 
preservation, and educational purposes;
    (iii) The impact that the prohibition on the circumvention of 
technological measures applied to copyrighted works has on criticism, 
comment, news reporting, teaching, scholarship, or research;
    (iv) The effect of circumvention of technological measures on the 
market for or value of copyrighted works; and
    (v) Such other factors as the Librarian considers appropriate.

17 U.S.C. 1201(a)(1)(C).
    These statutory considerations require examination and careful 
balancing. The harm identified by a proponent of an exemption must be 
balanced with the harm that would result from an exemption. In some 
circumstances, an exemption could have a greater adverse effect on the 
public than would the adverse effects identified. The ultimate 
determination of the Librarian must take all of these factors into 
consideration.
    Proponents and opponents of exemptions should address each of these 
statutory factors. Because the statute invites the Librarian to take 
into account ``such other factors as the Librarian considers 
appropriate,'' commenters are invited to identify any such factors, 
explain why any factors identified should be considered, and discuss 
how such factors would affect the analysis relating to any proposed 
class of works that the commenters are addressing.
    For the entire record of the first anticircumvention rulemaking, 
including all comments, testimony and notices published, See the 
Copyright Office's Web site at: http://www.loc.gov/copyright/1201/anticirc.html.

3. Written Comments

    In the last rulemaking the Register determined that the burden of 
proof is on the proponent of an exemption to come forward with evidence 
supporting an exemption for a particular class of works. Therefore, the 
initial comment period in this rulemaking specifically seeks the 
identification of this information from proponents of exemptions. 
First, the commenter should identify the particular class of works that 
is being proposed as an exemption, followed by a summary of the 
argument for the exemption. The commenter should then specify the facts 
and evidence providing a basis for this exemption and any legal 
arguments in support of the exemption. Finally, the commenter may 
include in the comment any additional information or documentation 
which supports the commenter's position.
    If a commenter proposes that more than one class of works be 
exempted, each individual class proposed should be numbered and 
followed by a summary of the argument for that proposed class and the 
factual support and legal arguments in support of that class. This 
format of class/summary/facts/argument should be sequentially followed 
for each class of work proposed as necessary.
    As discussed above, the best evidence in support of an exemption 
would consist of concrete examples or cases of specific instances in 
which the prohibition on circumvention of technological measures 
controlling access has had or is likely to have an adverse effect on 
noninfringing uses. It would also be useful for the commenter to 
quantify the adverse effects in order to explain the scope of the 
problem, e.g., evidence of widespread or substantial impact through 
data or supplementary material.
    In the reply comments, persons who oppose or support any exemptions 
proposed in the initial comments will have the opportunity to respond 
to the proposals made in the initial comments and to provide factual 
information and legal argument addressing whether a proposed exemption 
should be adopted. Since the reply comments are intended to be 
responsive to the initial comments, reply commenters must identify what 
proposed class they are responding to, whether in opposition, support, 
amplification or correction. As with initial comments, reply comments 
should first identify the proposed class, provide a summary of the 
argument, and then provide the factual and/or legal support for their 
argument. This format of class/summary/facts and/or legal argument 
should be repeated for each reply to a particular class of work 
proposed.
    The Copyright Office intends to place the comments and reply 
comments that are submitted in this proceeding on its Web site (http://www.copyright.gov/1201). Regardless of the mode of submission, all 
comments must, at a minimum, contain the legal name of the submitter 
and the entity on whose behalf the comment was submitted, if any. If 
persons do not wish to have their address, telephone number, or email 
address publicly displayed on the Office's website, the comment itself 
should not include such information, but should only include the name 
of the commenter. The Office prefers that comments and reply comments 
be submitted in electronic form and strongly encourages commenters to 
submit their comments electronically. However, the Office recognizes 
that it must provide a means of delivery for persons who are unable to 
submit their comments through the Office's website or to deliver their 
comments in person. Therefore, comments may also be delivered through 
the United States Postal Service, addressed to the General Counsel, 
Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, DC 
20024-0400. Because private carriers such as Airborne Express, DHL 
Worldwide Express, Federal Express, and United Parcel Service cannot 
deliver to post office boxes or directly to the office of the General 
Counsel, commenters are cautioned not to use such services to deliver 
their comments. Moreover, due to continuing mail delays at the Library 
of Congress, submission by means of the United States Postal Service is 
strongly discouraged and the submitter assumes the risk that the 
comment will not be received at the Copyright Office by the due date. 
Comments submitted by means of the United States Postal Service must be 
physically received by an employee of the General Counsel's Office of 
the Copyright Office by the applicable

[[Page 63582]]

deadline to be considered. Commenters who use the postal service should 
consider using Express Mail. Electronic filing or hand-delivery will 
help insure timely receipt of comments by the Office. Electronic 
comments successfully submitted through the Office's website will 
generate a confirmation receipt to the submitter and submitters hand-
delivering comments may request a date stamp on an extra copy provided 
by the submitter.
    If submitted through the Copyright Office's website: The Copyright 
Office's website will contain a submission page at: http://www.copyright.gov/1201/comment_forms. Approximately thirty days prior 
to each applicable deadline (see DATES), a form will be activated on 
the Copyright Office website allowing information to be entered into 
the required fields, including the name of the person making the 
submission, his or her title, organization, mailing address, telephone 
number, and email address. For initial comments, there will be two 
additional fields required: (1) The proposed class or classes of 
copyrighted work(s) to be exempted, and (2) a brief summary of the 
argument(s). The comment or reply comment itself must be sent as an 
attachment, and must be in a single file in either Adobe Portable 
Document File (PDF) format (preferred), in Microsoft Word Version 2000 
or earlier, or in WordPerfect 9 or earlier, or in ASCII text. There 
will be a browse button on the form that will allow submitters to 
attach the comment file to the form and then to submit the completed 
form to the Office. The personal information entered in the required 
fields will not be publicly posted on the website, but the Office 
intends to post on its website the proposed class and the summary of 
the argument, as well as the entire comment. Only the commenter's name 
(and, if applicable, the entity on whose behalf the comment is 
submitted) is required on the comment document itself and a commenter 
who does not want other personal information posted on the Office's 
website should avoid including other private information on the comment 
itself. Except in exceptional circumstances, changes to the submitted 
comment will not be allowed and it will become a part of the public 
record of this rulemaking.
    If by means of the United States Postal Service or hand delivery: 
Send, to the appropriate address listed above, two copies, each on a 
3.5-inch write-protected diskette or CD-ROM, labeled with the name of 
the person making the submission and the entity on whose behalf the 
comment was submitted, if any. The document itself must be in a single 
file in either Adobe Portable Document File (PDF) format (preferred), 
or in Microsoft Word Version 2000 or earlier, in WordPerfect Version 9 
or earlier, or in ASCII text. If the comment is hand delivered or 
mailed to the Office and the submitter does not wish to have the 
address, telephone number, or email address publicly displayed on the 
Office's website, the comment should not include such information on 
the document itself, but only the name and affiliation, if any, of the 
commenter. In that case, a cover letter should be included that 
contains the commenter's address, telephone number, email address, and 
for initial comments, the proposed class of copyrighted work to be 
exempted and another field for a brief summary of the argument.
    Anyone who is unable to submit a comment in electronic form (on the 
website as an attachment or by means of hand delivery or the United 
States Postal Service on disk or CD-ROM) should submit an original and 
fifteen paper copies by hand or by means of the United States Postal 
Service to the appropriate address listed above. It may not be feasible 
for the Office to place these comments on its website.
    General Requirements for all submissions: All submissions (in 
either electronic or non-electronic form delivered through the website, 
by means of hand delivery or the United States Postal Service) must 
contain on the comment itself, the name of the person making the 
submission and, if applicable, the entity on whose behalf the comment 
is submitted. The mailing address, telephone number, telefax number, if 
any, and email address need not be included on the comment itself, but 
must be included in some form, e.g., on the website form or in a cover 
letter, with the submission. All submissions must also include the 
class/summary/factual and/or legal argument format in the comment 
itself for each class of work proposed or for each reply to a proposal. 
Initial comments and reply comments will be accepted for a 30-day 
period in each round, and a form will be placed on the Copyright Office 
website at least 30 days prior to the deadline for submission. Initial 
comments will be accepted from November 19, 2002, until December 18, 
2002, at 5 P.M. Eastern Standard Time, at which time the submission 
form will be removed from the website. Reply comments will be accepted 
from January 21, 2003, until February 19, 2003, at 5 P.M. Eastern 
Standard Time.

4. Hearings and Further Comments

    The Register intends to hold hearings in this rulemaking in the 
spring of 2003. Following these hearings, the Register will make a 
determination as to whether there is a need for additional written 
comments in the form of post-hearing comments specifically addressing 
matters raised in the record of this proceeding. Details on hearings 
and any post-hearing comments will be announced at a future date.
    In order to provide flexibility in this proceeding to take into 
account unforeseen developments that may occur and that would 
significantly affect the Register's recommendation, an opportunity to 
petition the Register for consideration of new information will be made 
available after the deadlines specified. A petition, including proposed 
new classes of works to be exempted, must be in writing and must set 
forth the reasons why the information could not have been made 
available earlier and why it should be considered by the Register after 
the deadline. A petition must also set forth the proposed class of 
works to be exempted, a summary of the argument, the factual basis for 
such an exemption and the legal argument supporting such an exemption. 
Fifteen copies of the petition must be hand-delivered to the Office of 
the General Counsel of the Copyright Office at the address listed 
above. The Register will make a determination whether to accept such a 
petition based on the stage of the rulemaking process at which the 
request is made and the merits of the petition. If a petition is 
accepted, the Register will announce deadlines for comments in response 
to the petition.

    Dated: October 4, 2002.
Marybeth Peters,
Register of Copyrights.

James H. Billington,
The Librarian of Congress.
[FR Doc. 02-26183 Filed 10-11-02; 8:45 am]
BILLING CODE 1410-30-P