[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\1\ The Green Paper is available at http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\2\ Green Paper at 28-29.
\3\ Id. at 29, 87-89.
\4\ Id. at 29.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\5\ 17 U.S.C. 109.
\6\ Green Paper at 35.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\9\ Id. at 36.
\10\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\11\ Id. at 51 (citing 17 U.S.C. 504(c)).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\12\ Green Paper at 51-52.
\13\ Id. at 52.
\14\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\15\ Id. at 77-80, 87-98.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\21\ Id. at 53.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\22\ Id. at 56.
\23\ Id. at 57.
\24\ Id. at 57-58.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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/.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
22. The Task Force believes that at least the following issues
could be
[[Page 61341]]
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]
BILLING CODE 3510-16-P