[Federal Register Volume 76, Number 244 (Tuesday, December 20, 2011)]
[Proposed Rules]
[Pages 78866-78868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32509]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2011-7]
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The United States Copyright Office (``Office'') seeks comments
on proposals to exempt certain classes of works from the prohibition on
circumvention of technological measures that control access to
copyrighted works. The Office has initiated a rulemaking proceeding in
accordance with provisions added by the Digital Millennium Copyright
Act (``DMCA'') which provide that the Librarian of Congress
(``Librarian''), upon the recommendation of the Register of Copyrights,
may exempt certain classes of works from the prohibition against
circumvention. The purpose of this 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 publishes the
classes of works received by the Office, which were proposed by several
parties in the comment period that ended on December 1, 2011.
DATES: Comments addressing the Proposed Classes of Works are due by 5
p.m. E.S.T., February 10, 2012. Reply comments addressing points made
in the initial comments are due by 5 p.m. E.S.T. on March 2, 2012.
ADDRESSES: All Proposed Classes of Works are available on the Copyright
Office Web site at: http://www.copyright.gov/1201/2011/initial/ and at
the U.S. Copyright Office, James Madison Memorial Building, Room LM-
401, 101 Independence Avenue SE., Washington, DC. The Copyright Office
strongly prefers that comments filed in response to the Proposed
Classes of Works be submitted electronically. A comment page containing
a comment form will be posted on the Copyright Office Web site at
http://www.copyright.gov/1201/comment-forms. The online form contains
fields for required information including the name and organization of
the commenter, as applicable, and the ability to upload comments as an
attachment. To meet accessibility standards, all comments must be
uploaded in a single file in either the Adobe Portable Document File
(PDF) format that contains searchable, accessible text (not an image);
Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file
format (not a scanned document). The maximum file size is 6 megabytes
(MB). The name of the submitter and organization should appear on both
the form and the face of the comments. All comments will be posted
publicly on the Copyright Office web site exactly as they are received,
along with names and organizations. If electronic submission of
comments is not feasible, please contact the Copyright Office at 202-
707-8380 for special instructions.
FOR FURTHER INFORMATION CONTACT: Ben Golant, Assistant General Counsel,
Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024-0400. Telephone
(202) 707-8380; telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION: On September 29, 2011, the Office published
a Notice of Inquiry in the Federal Register to initiate the fifth
triennial rulemaking proceeding required by Sec. 1201(a)(1)(C) of the
Copyright Act. See 76 FR 60398 (Sept. 29, 2011). That notice requested
comments from interested parties proposing classes of works that should
be considered for exemption for the next three-year period. The Office
received 20 separate filings, proposing 26 classes of works for
exemption.\1\ On December 5, 2011, the Copyright Office posted all of
the filings received (the ``Proposed Classes of Works'') on its Web
site. See http://www.copyright.gov/1201/2011/initial/. In order to
provide additional notice to interested parties, the Copyright Office
is hereby publishing the Proposed Classes of Works with identification
of the person(s) and/or
[[Page 78867]]
entities that proposed each class. In certain instances, such as with
proposals submitted by some individuals who did not propose specific
language describing a Proposed Class, the Office has fashioned language
describing the Proposed Class based upon the substance of the submitted
comments. The Office is taking this action, in part, to clarify the
proposal to the best of the Office's ability. The Office encourages all
persons responding to proposals to read the entire comment, as
submitted, to make an independent assessment of the class proposed.
---------------------------------------------------------------------------
\1\ This is an approximation based on the manner in which the
proposed classes were articulated. In some cases, the proposed class
involved multiple categories of works within the class that could
have been articulated as multiple classes. In other cases, there
were multiple proposals that were variations on the same theme that
could have been expressed as one class. In addition, a number of
parties proposed similar classes. The Office has chosen to group
together related classes in this Notice in order to help focus the
many exemption requests.
---------------------------------------------------------------------------
The comments received by the Copyright Office propose the following
classes:
1. Literary works in the public domain that are made available in
digital copies. Proponent: The Open Book Alliance.
2. Literary works, distributed electronically, that: (1) Contain
digital rights management and/or other access controls which either
prevent the enabling of the book's read-aloud functionality or which
interfere with screen readers or other applications or assistive
technologies that render the text in specialized formats; and (2) are
legally obtained by blind or other persons with print disabilities (as
such persons are defined in section 121 of Title 17, United States
Code), or are legally obtained by authorized entities (as defined in
such section) distributing such work exclusively to such persons.
Proponent: American Council of the Blind and the American Foundation
for the Blind.
3. Computer programs that enable lawfully acquired video game
consoles to execute lawfully acquired software applications, where
circumvention is undertaken for the purpose of enabling
interoperability of such applications with computer programs on the
gaming console. Proponent: The Electronic Frontier Foundation.
4. Computer programs that enable the installation and execution of
lawfully obtained software on a personal computing device, where
circumvention is performed by or at the request of the device's owner.
Proponent: Software Freedom Foundation.
5. Computer programs that enable wireless telephone handsets
(``smartphones'') and tablets to execute lawfully obtained software
applications, where circumvention is undertaken for the purpose of
enabling interoperability of such applications with computer programs
on the handset or tablet. Proponent: The Electronic Frontier
Foundation.
6A. Computer programs, in the form of firmware or software,
including data used by those programs, that enable mobile devices to
connect to a wireless communications network, when circumvention is
initiated by the owner of the device to remove a restriction that
limits the device's operability to a limited number of networks, or
circumvention is initiated to connect to a wireless communications
network. Proponent: Consumers Union.
6B. Computer programs, in the form of firmware or software,
including data used by those programs, that enable wireless devices to
connect to a wireless communications network, when circumvention is
initiated by the owner of the copy of the computer program principally
in order to connect to a wireless communications network and access to
such communications network is authorized by the operator of such
communications network. Proponent: Youghiogheny Communications, LLC.
6C. Computer programs, in the form of firmware or software,
including data used by those programs, that enable wireless devices to
connect to a wireless communications network, when circumvention is
initiated by the owner of the copy of the computer program solely in
order to connect to a wireless communications network and access to
such communications network is authorized by the operator of such
communications network. Proponents: MetroPCS Communications, Inc./RCA-
The Competitive Carriers Association (filing separately).
7A. Motion pictures on DVDs that are lawfully made and acquired and
that are protected by the Content Scrambling System when circumvention
is accomplished solely in order to accomplish the incorporation of
short portions of motion pictures into new works for the purpose of
criticism or comment, and where the person engaging in circumvention
believes and has reasonable grounds for believing that circumvention is
necessary to fulfill the purpose of the use in the following instances:
(i) Educational uses by college and university professors and by
college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos. Proponent: University of Michigan
Library.
7B. Audiovisual works on DVDs that are lawfully made and acquired
and that are protected by the Content Scrambling System, where
circumvention is undertaken for the purpose of extracting clips for
inclusion in primarily noncommercial videos that do not infringe
copyright, and the person engaging in the circumvention believes and
has reasonable grounds for believing that circumvention is necessary to
fulfill the purpose of the use. Proponent: The Electronic Frontier
Foundation.
7C. Audiovisual works that are lawfully made and acquired via
online distribution services, where circumvention is undertaken for the
purpose of extracting clips for inclusion in primarily noncommercial
videos that do not infringe copyright, and the person engaging in the
circumvention believes and has reasonable grounds for believing that
circumvention is necessary to fulfill the purpose of the use, and the
works in question are not readily available on DVD. Proponent: The
Electronic Frontier Foundation.
7D. Motion pictures that are lawfully made and acquired from DVDs
protected by the Content Scrambling System and Blu-Ray discs protected
by Advanced Access Content System, or, if the motion picture is not
reasonably available on DVD or Blu-Ray or not reasonably available in
sufficient audiovisual quality on DVD or Blu-Ray, then from digitally
transmitted video protected by an authentication protocol or by
encryption, when circumvention is accomplished solely in order to
incorporate short portions of motion pictures into new works for the
purpose of fair use, and when the person engaging in circumvention
reasonably believes that circumvention is necessary to obtain the
motion picture in the following instances: (1) Documentary filmmaking;
OR (2) fictional filmmaking. Proponent: International Documentary
Association, Kartemquin Educational Films, Inc., National Alliance for
Media Arts and Culture, and Independent Filmmaker Project (filing
jointly).
7E. Motion pictures that are lawfully made and acquired from DVDs
protected by the Content Scrambling System or, if the motion picture is
not reasonably available on or not reasonably available in sufficient
audiovisual quality on DVD, then from digitally transmitted video
protected by an authentication protocol or by encryption, when
circumvention is accomplished solely in order to incorporate short
portions of motion pictures into new works for the purpose of fair use,
and when the person engaging in circumvention reasonably believes that
circumvention is necessary to obtain the motion picture for multimedia
e-book authorship. Proponent: Mark Berger, Bobette Buster, Barnet
Kellman, and Gene Rosow (filing jointly) (contained in comment
[[Page 78868]]
submitted by the International Documentary Association et al.).
7F. Motion pictures on DVDs that are lawfully made and acquired and
that are protected by the Content Scrambling System when circumvention
is accomplished solely in order to accomplish the incorporation of
short portions of motion pictures into new works for the purpose of
criticism or comment, and where the person engaging in circumvention
believes and has reasonable grounds for believing that circumvention is
necessary to fulfill the purpose of educational uses by college and
university professors and by college and university film and media
studies students. Proponent: Library Copyright Alliance.
7G. Audiovisual works (optical discs, streaming media, and
downloads) that are lawfully made and acquired when circumvention is
accomplished by college and university students or faculty (including
teaching and research assistants) solely in order to incorporate short
portions of video into new works for the purpose of criticism or
comment. Proponent: Peter Decherney, Katherine Sender, Michael Delli
Carpini, International Communication Association, Society for Cinema
and Media Studies, and American Association of University Professors
(filing jointly).
8. Lawfully accessed audiovisual works used for educational
purposes by kindergarten through twelfth grade educators. Proponent:
Media Education Lab at the Harrington School of Communication and Media
at the University of Rhode Island.
9A. Motion pictures and other audiovisual works delivered via
Internet protocol (IP) protected by technological measures that control
access to such works when circumvention is accomplished to facilitate
the creation, improvement, or rendering of visual representations or
descriptions of audible portions of such works for the purpose of
improving the ability of individuals who may lawfully access such works
to perceive such works. Proponent: Telecommunications for the Deaf and
Hard of Hearing, Inc., Gallaudet University, and Participatory Culture
Foundation (filing jointly).
9B. Motion pictures and other audiovisual works delivered via
Internet protocol (IP) protected by technological measures that control
access to such works when circumvention is accomplished to facilitate
the creation, improvement, or rendering of audible representations or
descriptions of visual portions of such works for the purpose of
improving the ability of individuals who may lawfully access such works
to perceive such works. Proponent: Telecommunications for the Deaf and
Hard of Hearing, Inc., Gallaudet University, and Participatory Culture
Foundation (filing jointly).
9C. Motion pictures and other audiovisual works on fixed disc-based
media protected by technological measures that control access to such
works when circumvention is accomplished to facilitate the creation,
improvement, or rendering of visual representations or descriptions of
audible portions of such works for the purpose of improving the ability
of individuals who may lawfully access such works to perceive such
works. Proponent: Telecommunications for the Deaf and Hard of Hearing,
Inc., Gallaudet University, and Participatory Culture Foundation
(filing jointly).
9D. Motion pictures and other audiovisual works on fixed disc-based
media protected by technological measures that control access to such
works when circumvention is accomplished to facilitate the creation,
improvement, or rendering of audible representations or descriptions of
visual portions of such works for the purpose of improving the ability
of individuals who may lawfully access such works to perceive such
works. Telecommunications for the Deaf and Hard of Hearing, Inc.,
Gallaudet University, and Participatory Culture Foundation (filing
jointly).
10A. Motion pictures on lawfully made and lawfully acquired DVDs
that are protected by the Content Scrambling System when circumvention
is accomplished solely in order to accomplish the noncommercial space
shifting of the contained motion picture. Proponent: Public Knowledge.
10B. Legally acquired digital media (motion pictures, sound
recordings, and e-books) for personal use and for the purposes of
making back-up copies, format shifting, access, and transfer.
Proponents: Cassiopaea Tambolini, Susan Fuhs, Kellie Heistand, Andy
Kossowsky, and Curt Wiederhoeft (filing separately).
These Proposed Classes of Works represent a starting point for
further consideration in this rulemaking proceeding. The Office does
not represent that any particular class proposed for exemption will
ultimately be recommended by the Register of Copyrights to the
Librarian of Congress. Moreover, the delineation of any class as
proposed by a commenter will be considered in relation to the facts
presented in the entire rulemaking process. To the extent that an
exemption is deemed warranted by the evidence, a Proposed Class listed
herein may be developed and/or refined by the Register in her final
recommendation to the Librarian.
This Notice hereby requests responsive written initial 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 additional
evidence either supporting or opposing the classes of works proposed
for exemption. The forthcoming initial comment period allows the
introduction of additional factual information that would assist the
Office in assessing whether a Proposed Class is warranted for exemption
and, if it is, how such a class already proposed should be properly
tailored. Comments responsive to the Proposed Classes may also suggest
modest refinements to the Proposed Classes and supply additional
evidence, but may not propose completely new classes of works.
It is important to reiterate that Proponents of the exemptions
enumerated above should have presented their entire case in their
initial filings. A proponent of a particular class of works will not be
permitted to submit an initial comment in support of that class in
response to this Notice unless, at least 15 days before the deadline
for comments (i.e., before January 27, 2012), the proponent has
submitted a written request for permission to submit an initial comment
demonstrating good cause to permit the submission of the comment, and
the Office has approved the submission of the comment. The purpose of
this requirement is to provide for the orderly presentation of evidence
and arguments, and to permit both proponents and opponents to present
their best cases. See 76 FR 60398, 60403 (Sept. 29, 2011).
Persons submitting comments should thoroughly review the Notice of
Inquiry published in the Federal Register on September 29, 2011 to
familiarize themselves with the substantive and formal requirements for
the submission of comments.
Reply comments may be submitted by any person, including the
initial proponent of a Proposed Class of Works, but should respond only
to points made in the initial comments.
Dated: December 15, 2011.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2011-32509 Filed 12-19-11; 8:45 am]
BILLING CODE 1410-30-P