[Federal Register Volume 78, Number 192 (Thursday, October 3, 2013)]
[Notices]
[Pages 61337-61341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-24309]


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DEPARTMENT OF COMMERCE

United States Patent and Trademark Office

National Telecommunications and Information Administration

[Docket No. 130927852-3852-01]


Request for Comments on Department of Commerce Green Paper, 
Copyright Policy, Creativity, and Innovation in the Digital Economy

AGENCY: Office of the Secretary, U.S. Department of Commerce; United 
States Patent and Trademark Office, U.S. Department of Commerce; 
National Telecommunications and Information Administration, U.S. 
Department of Commerce.

ACTION: Request for public comments and notice of public meeting.

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SUMMARY: Consistent with the Department of Commerce's Internet Policy 
Task Force (Task Force) Green Paper on Copyright Policy, Creativity, 
and Innovation in the Digital Economy (Green Paper) released on July 
31, 2013, the Task Force seeks public comment from all interested 
stakeholders on the following copyright policy issues critical to 
economic growth, job creation, and cultural development: The legal 
framework for the creation of remixes; the relevance and scope of the 
first sale doctrine in the digital environment; the appropriate 
calibration of statutory damages in the contexts of individual file 
sharers and of secondary liability for large-scale infringement; 
whether and how the government can facilitate the further development 
of a robust online licensing environment; and establishing a 
multistakeholder dialogue on improving the operation of the notice and 
takedown system for removing infringing content from the Internet under 
the Digital Millennium Copyright Act (DMCA). The Task Force will also 
hold an initial public meeting on October 30, 2013, to discuss these 
topics.

DATES: Comments are due on or before November 13, 2013. Any comments 
received before October 15, 2013 will be considered in the discussions 
in the public meeting.
    The public meeting will be held on October 30, 2013, from 8:30 a.m. 
to 5:00 p.m., Eastern Daylight Time. Registration will begin at 8:00 
a.m.

ADDRESSES: The Task Force intends to hold the public meeting in the 
Amphitheatre of the Ronald Reagan Building and International Trade 
Center, 1300 Pennsylvania Avenue NW., Washington, DC 20004. All major 
entrances to the building are accessible to people with disabilities. 
Confirmation of the venue for the public meeting will be available at 
least seven (7) days prior to the meeting on the Internet Policy Task 
Force Web site, http://www.ntia.doc.gov/internetpolicytaskforce and the 
USPTO's Web site, http://www.uspto.gov.
    Interested parties are encouraged to file comments electronically 
by email to: [email protected]. Comments submitted by 
email should be machine-searchable and should not be copy-protected. 
Written comments also may be submitted by mail to Office of Policy and 
External Affairs, United States Patent and Trademark Office, Mail Stop 
External Affairs, P.O. Box 1450, Alexandria, VA 22313-1450. Responders 
should include the name of the person or organization filing the 
comment, as well as a page number, on each page of their submissions. 
Paper submissions should also include a CD or DVD containing the 
submission in Word, WordPerfect, or pdf format. CDs or DVDs should be 
labeled with the name and organizational affiliation of the filer, and 
the name of the word processing program used to create the document. 
All comments received are a part of the public record and will be made 
available to the public at http:www.ntia.doc.gov/category/internet-policy-task-force without change. All personally identifiable 
information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential

[[Page 61338]]

business information or otherwise sensitive or protected information. 
The Task Force will accept anonymous comments (enter ``N/A'' in the 
required fields if you wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: For further information regarding the 
meeting, contact Hollis Robinson or Ben Golant, Office of Policy and 
External Affairs, United States Patent and Trademark Office, Madison 
Building, 600 Dulany Street, Alexandria, VA 22314; telephone (571) 272-
9300; email [email protected] or [email protected].
    For further information regarding the public comments, contact 
Garrett Levin or Ben Golant, Office of Policy and External Affairs, 
United States Patent and Trademark Office, Madison Building, 600 Dulany 
Street, Alexandria, VA 22314; telephone (571) 272-9300; email 
[email protected] or [email protected].
    Please direct all media inquiries to the Office of the Chief 
Communications Officer, USPTO, at (571) 272-8400.

SUPPLEMENTARY INFORMATION: 

Background

    The Department of Commerce's Internet Policy Task Force (Task 
Force) released Copyright Policy, Creativity, and Innovation in the 
Digital Economy on July 31, 2013 (Green Paper).\1\ The Green Paper is 
the product of extensive public consultation led by the United States 
Patent and Trademark Office (USPTO) and the National Telecommunications 
and Information Administration (NTIA). It provides a comprehensive 
review of the current policy landscape related to copyright and the 
Internet, and identifies important issues that call for attention and 
possible solutions. The paper focuses on three goals: maintaining an 
appropriate balance between rights and exceptions as the law continues 
to be updated; ensuring that copyright can be meaningfully enforced on 
the Internet; and furthering the development of an efficient online 
marketplace. It emphasizes the need to maintain a balanced and 
effective copyright system that continues to drive the production of 
creative works, while at the same time preserving the innovative power 
of the Internet and the free flow of information.
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    \1\ The Green Paper is available at http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf.
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    The Green Paper does not set out substantive policy 
recommendations, except where the Administration is already on record 
with a stated position. Rather, it describes changes that have already 
occurred in adapting copyright law to the digital environment, 
identifies issues on which more work should be done, and sets out paths 
to move that work forward. As to some of these issues, the paper 
expresses support for efforts already under way to address them in 
other forums--notably Congressional attention to music licensing, the 
Copyright Office's work on orphan works and mass digitization, and the 
Intellectual Property Enforcement Coordinator's facilitation of 
cooperative efforts by stakeholders to curb online infringement.
    On five other topics, the Green Paper proposes to undertake further 
work to develop policy recommendations by soliciting public comment and 
convening roundtables or forums: (1) The legal framework for the 
creation of remixes; (2) the relevance and scope of the first sale 
doctrine in the digital environment; (3) the appropriate calibration of 
statutory damages in the contexts of individual file sharers and of 
secondary liability for large-scale infringement; (4) whether and how 
the government can facilitate the further development of a robust 
online licensing environment; and (5) establishing a multistakeholder 
dialogue on improving the operation of the notice and takedown system 
for removing infringing content from the Internet under the DMCA. For 
each topic, the Task Force anticipates further public discussion 
following the submission of comments. The contours of those public 
discussions will be determined after reviewing the comments. 
Ultimately, the information obtained through this public process will 
be used to formulate the Administration's views and recommendations 
regarding copyright policy.

Request for Comment

    Commenters are free to address any or all of the issues identified 
below, as well as to provide information on other aspects of these 
issues that are relevant to developing copyright policy for the 
Internet economy. When responding, commenters should provide evidence 
to support their positions and assist in developing evidence-based 
policy recommendations. Please note that the government will not pay 
for response preparation or for the use of any information contained in 
the response.

Legal Framework for Remixes

    Advances in digital technology have made the creation of 
``remixes'' or ``mashups''--creative new works produced through 
changing and combining portions of existing works--easier and cheaper 
than ever before, providing greater opportunities for enhanced 
creativity. These types of ``user-generated content'' are a hallmark of 
today's Internet, in particular on video-sharing sites. But because 
remixes typically rely on copyrighted works as source material--often 
using portions of multiple works--they can raise daunting legal and 
licensing issues.
    As explained in the Green Paper, there are two general methods for 
permitting legal remixes in today's marketplace--fair use and licensing 
mechanisms.\2\ Many remixes may qualify as fair uses of the copyrighted 
material they draw on. Remixers may also rely in some contexts on 
licensing mechanisms such as YouTube's Content ID system, Creative 
Commons licenses, and other online licensing tools.\3\ There have been 
additional efforts to provide guidance through the creation of best 
practices and industry-specific guidelines to help those looking to use 
existing works make informed choices.\4\
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    \2\ Green Paper at 28-29.
    \3\ Id. at 29, 87-89.
    \4\ Id. at 29.
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    Despite these alternatives, a considerable area of legal 
uncertainty remains, given the fact-specific balancing required by fair 
use and the fact that licenses may not always be easily available.
    1. Is the creation of remixes being unacceptably impeded by this 
uncertainty? If not, why not? If so, how? In what way would clearer 
legal options result in even more valuable creativity?
    2. In what ways, if any, can right holders be efficiently 
compensated for this form of value in cases where fair use does not 
apply?
    3. What licensing mechanisms currently exist, or are currently 
under development, for remixes and for which categories of works?
    4. Can more widespread implementation of intermediary licensing, 
such as YouTube's Content ID system, play a constructive role? If so, 
how? If not, why not?
    5. Should alternatives such as microlicensing to individual 
consumers, a compulsory license, or a specific exception be considered? 
Why or why not?
    6. What specific changes to the law, if any, should be considered? 
To what extent are there approaches that do not require legislation 
that could constructively address these issues?

First Sale in the Digital Environment

    The first sale doctrine, which limits the scope of the exclusive 
distribution right and allows the owner of a physical

[[Page 61339]]

copy of a work to resell or otherwise dispose of that copy without the 
copyright owner's consent,\5\ does not apply to digital transmissions 
where copies are created implicating the reproduction right.\6\
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    \5\ 17 U.S.C. 109.
    \6\ Green Paper at 35.
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    In 2001, in a report requested by Congress, the Copyright Office 
considered whether the first sale doctrine should be amended to extend 
to digital transmissions.\7\ It recommended against doing so, noting 
the fact that a digital transmission creates a perfect copy of the 
work, which could both negatively affect the development of the digital 
marketplace and fuel piracy.\8\ The Office also noted that the issue 
might be one that Congress would want to revisit as the digital 
marketplace developed and matured.
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    \7\ Id. at 35-36 (citing U.S. Copyright Office, A Report of the 
Register of Copyrights Pursuant to Sec.  104 of the Digital 
Millennium Copyright Act, 78-79 (2001) available at http://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf).
    \8\ Id. at 35-36.
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    Proponents of a digital first sale doctrine argue that the 
extension of the doctrine would have pro-competitive effects, and would 
preserve the traditional benefits of users sharing works with friends 
or family, and students being able to purchase less expensive copies of 
textbooks. Proponents have also suggested that technological advances 
would lessen the potential risk of piracy.\9\ But others assert that 
the risk of piracy remains too great for adoption of the doctrine in 
the digital environment, and that the market is evolving in ways that 
make its application unnecessary.\10\
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    \9\ Id. at 36.
    \10\ Id.
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    7. What are the benefits of the first sale doctrine? And to what 
extent are those benefits currently being experienced in the digital 
marketplace?
    8. To what extent does the online market today provide 
opportunities to engage in actions made possible by the first sale 
doctrine in the analog world, such as sharing favorite books with 
friends, or enabling the availability of less-than-full-price versions 
to students?
    9. If the market does not currently provide such opportunities, 
will it do so in the near future? If not, are there alternative means 
to incorporate the benefits of the first sale doctrine in the digital 
marketplace? How would adoption of those alternatives impact the 
markets for copyrighted works?
    10. Are there any changes in technological capabilities since the 
Copyright Office's 2001 conclusions that should be considered? If so, 
what are they? For example, could some technologies ensure that the 
original copy of a work no longer exists after it has been 
redistributed?
    11. To what extent are there particular market segments or 
categories of users that may warrant particularized legal treatment?
    12. How will the Supreme Court's decision in Kirtsaeng v. John 
Wiley & Sons, Inc., 133 S.Ct. 1351 (2013), impact the ability of right 
holders to offer their works at different prices and different times in 
different online markets? How will any such changes impact the 
availability of and access to creative content in the United States and 
elsewhere?

Statutory Damages

    Because actual damages for copyright infringement can be difficult 
to prove, the Copyright Act permits a right holder to elect to seek 
damages within a statutorily defined range instead.\11\ In the online 
environment, where the scope of the infringing use will often not be 
ascertainable, making it hard to prove actual damages, the availability 
of statutory damages is increasingly important.
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    \11\ Id. at 51 (citing 17 U.S.C. 504(c)).
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    In recent years, concerns have been raised about the level of 
statutory damage awards in certain contexts; in particular: (1) The use 
of orphan works; (2) secondary liability claims against online 
services; and (3) private individuals making infringing content 
available online. The Copyright Office has already recommended 
addressing the issue of statutory damages in the context of orphan 
works by limiting their availability in certain circumstances.\12\ With 
respect to statutory damages for secondary liability, there are 
competing arguments about the potential negative impact on investment 
and the need for a proportionate level of deterrence.\13\ Finally, 
there have been calls for further calibration of the levels of 
statutory damages for individual file sharers in the wake of large jury 
awards in the two file-sharing cases that have gone to trial.\14\
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    \12\ Green Paper at 51-52.
    \13\ Id. at 52.
    \14\ Id.
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    13. To what extent is application of the current range of statutory 
damages necessary for effective deterrence with respect to (a) direct 
infringement by individual file sharers and (b) secondary liability by 
online services?
    14. Is the potential availability of statutory damages against 
online services for large scale secondary infringement hindering the 
development of new, legitimate services or platforms for delivering 
content? If so, how? What is the evidence of any such impact?
    15. If statutory damages for individual file sharers and/or 
services found secondarily liable for infringement were to be 
recalibrated, how should that be accomplished? Would legislation be 
required?

Government Role in Improving the Online Licensing Environment

    Great strides have been made toward fulfilling the Internet's 
promise as a market for copyrighted works, with legitimate services 
delivering a wide variety of works in a wide variety of formats, as 
well as the increasing availability of online licensing.\15\ Building 
the online marketplace is fundamentally a function of the private 
sector, and that process is well under way. In order to achieve its 
full promise, however, there remains a need for more comprehensive and 
reliable ownership data, interoperable standards enabling communication 
among databases, and more streamlined licensing mechanisms. In reaching 
these goals, there may be an appropriate and useful role for government 
in facilitating the process, whether by removing obstacles or taking 
steps to encourage faster and more collaborative action.
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    \15\ Id. at 77-80, 87-98.
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    One possible area for government involvement is helping to provide 
better access to standardized rights ownership information. The 
Copyright Office is working to improve the reliability of the public 
registration and recordation systems, and considering educational 
efforts and stronger incentives that could further increase the use of 
the system and enhance its comprehensiveness.\16\ The expertise and 
resources of the private sector could also be drawn on to create 
innovative public/private partnerships improving or linking rights 
databases. Such an approach was highlighted in the Copyright Office's 
Notice of Inquiry in March 2013, seeking public comment on the 
integration of private databases with the Office's public database.\17\
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    \16\ Id. at 89-92.
    \17\ See U.S. Copyright Office, Technological Upgrades to 
Registration and Recordation Functions, 78 FR 17722 (Mar. 22, 2013). 
This Notice also discussed the Office's recent exploration of issues 
related to data standards and the need for bulk data transfer. Id. 
at 17723.
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    With respect to creating new platforms for online licensing, such 
efforts should continue to be primarily driven by the industries 
involved. But

[[Page 61340]]

there may be ways in which the U.S. government can play a helpful role 
on both the domestic and international fronts. This could include 
pursuing the concept of a digital copyright hub similar to that under 
discussion in the U.K.,\18\ launching the kind of multistakeholder 
dialogue recently begun by the European Commission through the 
``Licences for Europe'' initiative,\19\ participating in the 
development of international initiatives such as the World Intellectual 
Property Organization's (WIPO) International Music Registry,\20\ and/or 
facilitating the involvement of U.S. stakeholders.
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    \18\ Green Paper at 96.
    \19\ See Licences for Europe, Structured stakeholder dialogue 
2013 at http://ec.europa./licences-for-europe-dialogue/(focusing on 
four areas: ``Cross-border access and portability of services; User-
generated content and licensing; Audiovisual sector and cultural 
heritage; [and] Text and data mining.'')
    \20\ Green Paper at 96.
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    16. What are the biggest obstacles to improving access to and 
standardizing rights ownership information? How can the government best 
work with the private sector to overcome those obstacles?
    17. To what extent is a lack of access to standardized, 
comprehensive, and reliable rights information impeding the growth of 
the online marketplace? What approaches could be taken to improve the 
situation?
    18. Are there other obstacles that exist to developing a more 
robust, effective, or comprehensive online licensing environment? If 
so, what are they?
    19. In addition to those efforts to develop standardized, 
comprehensive, and reliable rights databases and online licensing 
platforms described in the Green Paper, are there other efforts under 
way by the private sector or public entities outside the United States? 
If so, what are they?
    20. Would a central, online licensing platform for high-volume, 
low-value uses (a ``copyright hub'') be a useful endeavor in the United 
States? If not, why not? If so, how can the government support such a 
project?
    21. What role should the United States government play in 
international initiatives at WIPO or elsewhere?

Operation of the DMCA Notice and Takedown System

    In 1998, the DMCA established safe harbors to shield online service 
providers that act responsibly from unreasonable monetary liability for 
copyright infringement. The DMCA safe harbors protect providers that 
comply with certain conditions when they are engaged in one of four 
covered activities: serving as a conduit for transmitting content 
(``mere conduit''), caching, hosting, or providing information location 
tools. One of the conditions on the availability of the safe harbors is 
that an Internet service provider (ISP), to the extent it is engaging 
in covered activities going beyond mere transmission, must block or 
remove infringing content for which it has received a valid notice. A 
``put-back'' mechanism allows content to be restored that was removed 
through mistake or misidentification. This structure has essentially 
created a new, extrajudicial tool--notice and takedown--for curbing 
infringement.\21\
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    \21\ Id. at 53.
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    After more than a decade of experience with the DMCA notice and 
takedown system, right holders, ISPs, and content creators, have all 
identified respects in which its operation can become unwieldy or 
burdensome. On one side, there are complaints that the system can be 
too resource-intensive and require constant re-notification as to the 
same content; \22\ on the other, that the volume has become too high, 
and notices may be inaccurate or otherwise misused.\23\ Right holders 
have also found unwieldy the application of notice and takedown to 
services, such as cyberlockers, where stored content is not directly 
searchable; infringing URLs must be located through other sites that 
aggregate links and then right holders must send takedown notices 
directly to the cyberlockers, adding a step to the process. And 
consumer and free speech advocates have raised concerns about notices 
claiming that fair uses or other permissible activities are 
infringing.\24\
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    \22\ Id. at 56.
    \23\ Id. at 57.
    \24\ Id. at 57-58.
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    These problems taken together may be undermining the benefits of 
the notice and takedown system for all parties. The Task Force believes 
that one potential solution to ease burdens and improve results that 
would not require legislation is the creation of best practices. Such 
agreements would benefit right holders, ISPs and end users alike, by 
supporting a more efficient and reliable notice and takedown system. To 
that end, the Task Force will convene a multistakeholder dialogue 
involving right holders (both large and small), ISPs, consumer and 
public interest representatives and companies in the business of 
identifying infringing content, on how to improve the operation of the 
notice and takedown system. The goal of this process is not to identify 
ways to change the law, but rather to determine how the operation of 
the existing system can be improved within the existing legal 
framework.
    Although the details of the process will be developed following 
review of public comments, the Task Force anticipates a structure of 
regular meetings over a finite period of time to address a series of 
discrete topics. Since the notice and takedown system is already widely 
used, the Task Force wants to ensure participation by a wide variety of 
its current users--both right holders and service providers--as well as 
stakeholders that wish to use the system and those that are otherwise 
directly affected. Transparency is necessary to allow the public to 
understand how participants reach their decisions.\25\ Consensus of a 
broad set of stakeholders, achieved through a transparent process, 
would lend legitimacy to the outcome.
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    \25\ See Memorandum for the Heads of Executive Departments and 
Agencies, Open Government Directive, Dec. 8, 2009, available at 
http://www.whitehouse.gov/open/documents/open-government-directive; 
Memorandum for the Heads of Executive Departments and Agencies, 
``Transparency and Open Government,'' Jan. 21, 2009, available at 
http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment/.
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    The Task Force's role will be to provide a forum for discussion and 
consensus-building among stakeholders. Stakeholder groups convened for 
this process will not be advisory committees, as neither the Task Force 
nor any other Federal agency or office will seek advice or 
recommendations on policy issues from participants.
    To identify potential topics that would benefit from this process, 
and to develop a productive structure, the Task Force seeks comment 
from stakeholders. Commenters may wish to provide their views on how 
discussions of the proposed issue(s) should be structured to ensure 
openness, transparency, and consensus-building. Experiences with other 
Internet-related multistakeholder processes on policy or technical 
issues could be valuable, taking into account the fact that the notice 
and takedown process may differ because of the existing legal 
framework.\26\
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    \26\ Potentially relevant examples include NTIA's ongoing 
privacy multistakeholder process arising out of the Executive Office 
of the President's Privacy and Innovation Blueprint, http://www.ntia.doc.gov/other-publication/2013/privacy-multistakeholder-process-mobile-application-transparency, the Internet Corporation 
for Assigned Names and Numbers (ICANN), the Internet Engineering 
Task Force (IETF), and the Internet Governance Forum (IGF). The Task 
Force welcomes discussion of these and any other examples of 
multistakeholder policy development processes that commenters 
believe are relevant to developing consensus for improvements to the 
notice and takedown system.
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    22. The Task Force believes that at least the following issues 
could be

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constructively addressed through a notice and takedown multistakeholder 
dialogue:
    a. Reducing the volume of takedown notices sent to service 
providers;
    b. Minimizing reappearance of infringing material;
    c. Inaccurate takedown requests;
    d. Misuse of takedown requests; and
    e. Difficulties in using the system for individuals or small and 
medium-size enterprises (SME).
    What other issues could be considered? For each issue to be 
considered, who are the stakeholders needed at the table?
    23. How can the Task Force ensure participation by all relevant 
stakeholders, as well as effective and informed representation of their 
interests?
    24. Are there lessons from existing multistakeholder processes in 
the realms of Internet policy, intellectual property policy, or 
technical standard-setting that could be applied here? If so, what are 
they and to what extent are they applicable?
    25. In what ways could the stakeholder discussions be structured to 
best facilitate consensus?

Public Meeting

    On October 30, 2013, the Task Force will hold an initial public 
meeting to hear stakeholder views and to initiate discussion of the 
five topics identified above. The event will seek participation and 
comment from interested stakeholders, including creators, right 
holders, Internet intermediaries, consumer representatives, public 
interest groups, and academics.
    The agenda for the public meeting will be available at least one 
week prior to the meeting and the meeting will be webcast. The agenda 
and webcast information will be available on the Internet Policy Task 
Force Web site, http://www.ntia.doc.gov/internetpolicytaskforce and the 
USPTO's Web site, http://www.uspto.gov.
    The meeting will be open to members of the public to attend, space 
permitting, on a first-come, first-served basis. Pre-registration for 
the meeting is available at: http://events.SignUp4.com/Green Paper. The 
meeting will be physically accessible to people with disabilities. 
Individuals requiring accommodation, such as sign language 
interpretation, real-time captioning of the webcast or other ancillary 
aids, should communicate their needs to Hollis Robinson or Ben Golant, 
Office of Policy and External Affairs, United States Patent and 
Trademark Office, Madison Building, 600 Dulany Street, Alexandria, VA 
22314; telephone (571) 272-9300; email [email protected] or 
[email protected] at least seven (7) business days prior to the 
meeting. Attendees should arrive at least one-half hour prior to the 
start of the meeting, and must present a valid government-issued photo 
identification upon arrival. Persons who have pre-registered (and 
received confirmation) will have seating held until 15 minutes before 
the program begins. Members of the public will have an opportunity to 
ask questions at the meeting.

    Dated: September 30, 2013.
Teresa Stanek Rea,
 Deputy Under Secretary of Commerce for Intellectual Property and 
Deputy Director of the United States Patent and Trademark Office.
Lawrence E. Strickling,
Assistant Secretary of Commerce for Communications and Information.
[FR Doc. 2013-24309 Filed 10-2-13; 8:45 am]
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