[Federal Register Volume 67, Number 236 (Monday, December 9, 2002)]
[Notices]
[Pages 72920-72921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31017]


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DEPARTMENT OF COMMERCE

United States Patent and Trademark Office

[Docket No. 2003-C-006]


Request for Written Comments and Notice of Hearings on 
Technological Protection Systems for Digitized Copyrighted Works

AGENCY: United States Patent and Trademark Office, Commerce.

ACTION: Request for written comments and notice of hearings.

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SUMMARY: The United States Patent and Trademark Office (USPTO) requests 
written comments that will assist the agency in preparing a report to 
Congress required by the ``Technology, Education and Copyright 
Harmonization Act of 2002.'' The report will provide information to 
Congress on technological protection systems for digitized copyrighted 
works and to prevent infringement. The USPTO also may conduct a hearing 
to obtain information for the report and requests a response from 
persons interested in providing testimony.

DATES: Written comments are due at the offices of the USPTO on January 
14, 2003. A hearing is tentatively scheduled for the Washington, DC 
area, on February 4, 2003. Based on expressions of public interest, 
additional hearings may be scheduled. Requests to testify must be 
received by January 14, 2003.

ADDRESSES: Written comments and requests to testify should be addressed 
to the United States Patent and Trademark Office, Office of Legislative 
and International Affairs, Room 902, 2121 Crystal Drive, Arlington, VA 
22202, or faxed to (703) 305-8885, marked to the attention of Velica 
Steadman. Written comments also may be sent via electronic mail to 
[email protected]. A specific time and location for the proposed 
hearing will be determined based on responses received from persons who 
express an interest in testifying and will be posted on the USPTO's Web 
site at http://www.uspto.gov.

FOR FURTHER INFORMATION CONTACT: Michael S. Shapiro by telephone at 
(703) 305-9300 or by electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

1. Background

    On November 2, 2002, the President signed into law the 
``Technology, Education and Copyright Harmonization Act of 2002'' (the 
TEACH Act), Pub. L. 107-273, which updates certain provisions of the 
Copyright Act to facilitate the growth and development of distance 
education, while introducing new safeguards to limit the additional 
risks to copyright owners that are inherent in exploiting works in a 
digital format. As discussed more fully below, the TEACH Act requires 
the USPTO to submit a report to Congress on technological protection 
systems for digitized copyrighted works and to prevent infringement. 
The brief discussion of the TEACH Act that follows is intended only to 
provide some context for that report.
    Over the last several years, the educational opportunities and 
risks associated with distance education have been the subject of 
extensive public debate and attention in the United States. In November 
1998, the Conference on Fair Use (CONFU), convened by the 
Administration's Information Infrastructure Task Force, issued its 
final report, which included a proposal for educational fair use 
guidelines for distance learning.\1\ In May 1999, the U.S. Copyright 
Office issued an extensive report on copyright and digital distance 
education.\2\ The Senate Committee on the Judiciary and the House 
Judiciary Subcommittee on Courts, the Internet, and Intellectual 
Property held hearings on the TEACH Act.\3\ For more detailed 
information on the background and legislative history of the TEACH Act, 
interested persons may wish to visit the USPTO Web site at http://www.uspto.gov and the U.S. Copyright Office Web site at http://www.loc.gov.
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    \1\ See The Conference on Fair Use: Final Report to the 
Commissioner on the Conclusion of the Conference on Fair Use (U.S. 
Patent and Trademark Office, November 1998). The report is available 
on-line at http://www.uspto.gov/web/offices/dcom/olia/confu/confurep.htm
    \2\ See Report on Copyright and Digital Distance Education: A 
Report to the Register of Copyrights (U.S. Copyright Office, May 
1999). The report is available at http://www.copyright.gov/disted/.
    \3\ See the Report of the Senate Committee on the Judiciary on 
the Technology, Education and Copyright Act of 2001, S.R. Rep. No. 
107-31, 107th Congress, 1st Session and the Report of the House 
Committee on the Judiciary on the Technology, Education and 
Copyright Act of 2001, H.R. Rep. No. 107-687, 107th Congress, 2d 
Session.
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    Subsection (b) of the TEACH Act amends section 110(2) of the 
Copyright Act to encompass performances and displays of copyrighted 
works in digital distance education under appropriate circumstances and 
subject to certain limitations. The Act expands the categories of works 
exempt from the performance right, from nondramatic literary works and 
musical works to ``reasonable and limited portions'' of any work and 
permits the display of any work in ``an amount comparable to that 
typically displayed in the course of a live classroom setting.'' The 
Act removes the concept of the physical classroom, while maintaining 
the requirement of ``mediated instructional activity,'' which generally 
requires the involvement of an instructor. The exemption is limited to 
mediated instructional activities that are conducted by governmental 
bodies and ``accredited'' non-profit educational institutions. 
Subsection (c) of the TEACH Act amends section 112 of the Copyright Act 
to permit transmitting organizations to store copyrighted material on 
their servers in order to allow the performances and displays of works 
authorized under amended section 110(2).
    The TEACH Act contains a number of new safeguards to limit the 
additional risks to copyright owners that are inherent in using works 
in the digital format. Section 110(2)(C) limits the receipt of 
authorized transmissions, ``to the extent technologically feasible,'' 
to students officially enrolled in the course or to Government 
employees as part of their official duties. Section 110(2)(D)(ii) 
requires transmitting institutions to apply technological measures that 
``reasonably prevent retention of the work in accessible form by 
recipients of the transmission * * * for longer than the class 
session'' and the ``unauthorized further dissemination'' of the work. 
Section 110(2)(D)(ii) also prohibits transmitting institutions from 
engaging in ``conduct that could reasonably be expected to interfere'' 
with such technological measures.

2. Mandate for the Report

    Subsection (d) of the TEACH Act requires the Under Secretary of 
Commerce for Intellectual Property, after consultation with the 
Register of Copyrights and after a period of public comment, to submit 
to the Committees on the Judiciary of the Senate and the House of 
Representatives a report on technological protection systems for 
digitized copyrighted works. The report, which is intended solely to 
provide information to Congress, is due not later than 180 days after 
the date of enactment of the Act.
    Congress specifically directed the USPTO to include information 
``on

[[Page 72921]]

technological protection systems that have been implemented, are 
available for implementation, or are proposed to be developed to 
protect digitized copyrighted works and prevent infringement, including 
upgradeable and self-repairing systems, and systems that have been 
developed, are being developed, or are proposed to be developed in 
private voluntary industry-led entities through an open broad based 
consensus process.'' Congress also directed the USPTO to exclude ``any 
recommendations, comparisons, or comparative assessments of any 
commercially available products that may be mentioned in the report.''
    Subsection (d) of the Act further states that the report ``shall 
not be construed to affect in any way, either directly or by 
implication, any provision'' of the Copyright Act in general or the 
TEACH Act in particular, including the requirements of section 
110(2)(D)(ii) of the TEACH Act (discussed above), or ``the 
interpretation or application of such provisions, including evaluation 
of the compliance with that clause by any governmental body or 
nonprofit educational institution.''

Request for Written Comments

    The USPTO requests that persons interested in submitting written 
comments organize their comments as follows:
    (1) What technological protection systems have been implemented, 
are available for implementation, or are proposed to be developed to 
protect digitized copyrighted works and prevent infringement, including 
any upgradeable and self-repairing systems?
    (2) What systems have been developed, are being developed, or are 
proposed to be developed in private voluntary industry-led entities 
through an open broad-based consensus process?
    (3) Consistent with the types of information requested by Congress, 
please provide any additional comments on technological protection 
systems to protect digitized copyrighted works and prevent 
infringement.
    Written comments must be received by January 14, 2003, and should 
be addressed to the United States Patent and Trademark Office, Office 
of Legislative and International Affairs, Room 902, 2121 Crystal Drive, 
Arlington, VA 22202, ATTN: Velica Steadman, Office of Legislative and 
International Affairs; faxed to Velica Steadman's attention at (703) 
305-8885; or sent via electronic mail to [email protected].
    In addition, as noted above, the USPTO will schedule a hearing to 
obtain information for the report on the basis of expressions of public 
interest. The hearing is tentatively scheduled for the Washington, DC 
area on February 4, 2003. Based on expressions of public interest, 
additional hearings may be scheduled. Requests to testify must be 
received by January 14, 2003. A specific time and location for the 
proposed hearing will be determined based on responses received from 
persons who express an interest in testifying and will be posted on 
USPTO's Web site at http://www.uspto.gov.

    Dated: December 3, 2002.
James E. Rogan,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 02-31017 Filed 12-6-02; 8:45 am]
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