[Federal Register Volume 79, Number 37 (Tuesday, February 25, 2014)]
[Notices]
[Pages 10571-10573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04104]



[[Page 10571]]

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LIBRARY OF CONGRESS

United States Copyright Office

[Docket No. 2014-2]


Study on the Right of Making Available; Comments and Public 
Roundtable

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Request for comments and notice of public roundtable.

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SUMMARY: The United States Copyright Office is undertaking a study at 
the request of Congress to assess the state of U.S. law recognizing and 
protecting ``making available'' and ``communication to the public'' 
rights for copyright holders. The Office is requesting public comments 
on how the existing bundle of rights under Title 17 covers the making 
available and communication to the public rights, how foreign laws have 
addressed such rights, and the feasibility and necessity of amending 
U.S. law to strengthen or clarify our law in this area. The Copyright 
Office also will hold a public roundtable to discuss these topics and 
to provide a forum for interested parties to address the issues raised 
by the comments received.

DATES: Comments are due on or before April 4, 2014. The public 
roundtable will be held on May 5, 2014, from 9:00 a.m. to 5:00 p.m. 
EDT.

ADDRESSES: All comments should be submitted electronically. To submit 
comments, please visit http://www.copyright.gov/docs/making_available/
. The Web site interface requires submitters to complete a form 
specifying name and organization, as applicable, and to upload comments 
as an attachment via a browser button. To meet accessibility standards, 
commenting parties must upload comments in a single file not to exceed 
six megabytes (``MB'') in one of the following formats: The 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 form 
and face of the comments must include both the name of the submitter 
and organization. The Office will post all comments publicly on the 
Office's Web site exactly as they are received, along with names and 
organizations.
    The public roundtable will take place in the Copyright Office 
Hearing Room, LM-408 of the Madison Building of the Library of 
Congress, 101 Independence Avenue SE., Washington, DC 20559. The 
Copyright Office strongly prefers that requests for participation be 
submitted electronically. A participation request form will be posted 
on the Copyright Office Web site at http://www.copyright.gov/docs/making_available/ on or about April 7, 2014. If electronic submission 
of comments or requests for participation is not feasible, please 
contact the Office at 202-707-1027 for special instructions.

FOR FURTHER INFORMATION CONTACT: Maria Strong, Senior Counsel for 
Policy and International Affairs, by telephone at 202-707-1027 or by 
email at [email protected], or Kevin Amer, Counsel for Policy and 
International Affairs, by telephone at 202-707-1027 or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The WIPO Internet Treaties--the WIPO Copyright Treaty(``WCT'') \1\ 
and the WIPO Performances and Phonograms Treaty (``WPPT'') \2\--require 
member states to recognize the rights of ``making available'' and 
``communication to the public'' in their national laws. The treaties 
obligate member states to give authors of works, producers of sound 
recordings, and performers whose performances are fixed in sound 
recordings the exclusive right to authorize the transmission of their 
works and sound recordings, including through interactive platforms, 
such as the Internet, where the public can choose where and when to 
access them. In the specific context of interactive, on-demand 
situations, WCT Article 8 and WPPT Articles 10 and 14 provide treaty 
members with flexibility in the manner in which they implement this 
right.\3\
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    \1\ WIPO Copyright Treaty art. 8, Dec. 20, 1996, 36 I.L.M. 65 
(``Without prejudice to the provisions of Articles 11(1)(ii), 
11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the 
Berne Convention, authors of literary and artistic works shall enjoy 
the exclusive right of authorizing any communication to the public 
of their works, by wire or wireless means, including the making 
available to the public of their works in such a way that members of 
the public may access these works from a place and at a time 
individually chosen by them.'') (text of Agreed Statement omitted). 
WCT Article 8 is entitled ``Right of Communication to the Public.''
    \2\ WIPO Performances and Phonograms Treaty arts. 10, 14, Dec. 
20, 1996, 36 I.L.M. 76. Articles 10 and 14 provide the making 
available right to performers whose performances are fixed in sound 
recordings (phonograms) and to producers of sound recordings. The 
separate ``communication to the public'' provision in the WPPT 
(Article 15) involves a right of remuneration, and is not the same 
``communication to the public'' right found in the Berne Convention 
and WCT Article 8.
    \3\ This flexible approach is known as the ``umbrella 
solution.'' See Mih[aacute]ly Ficsor, World Intellectual Property 
Organization, Guide to the Copyright and Related Rights Treaties 
Administered by WIPO and Glossary of Copyright and Related Rights 
Terms 209 (2003) (WCT Article 8's umbrella solution allows treaty 
members to implement the making available right through ``a right 
other than the right of communication to the public or through the 
combination of different rights''); id. at 247-48 (WPPT Articles 10 
and 14 apply umbrella solution ``in a fully fledged manner 
incorporating the neutral description of interactive digital 
transmissions directly'').
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    The United States implemented the WIPO Internet Treaties through 
the Digital Millennium Copyright Act (``DMCA'') in 1998.\4\ Based on 
advice received from the Copyright Office, among many other experts, 
Congress did not amend U.S. law to include explicit references to 
``making available'' and ``communication to the public,'' concluding 
that Title 17 already provided those rights.\5\ As former Register of 
Copyrights Marybeth Peters observed:
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    \4\ Public Law 105-304, 112 Stat. 2860 (1998).
    \5\ See H.R. Rep. No. 105-551, at 9 (1998) (``The treaties do 
not require any change in the substance of copyright rights or 
exceptions in U.S. law.''); see also WIPO Copyright Treaties 
Implementation Act and Online Copyright Liability Limitation Act: 
Hearing on H.R. 2281 & H.R. 2180 Before the H.R. Subcomm. on Courts 
and Intellectual Property of the Comm. on the Judiciary, 105th Cong. 
43 (1997) (Register of Copyrights advised Congress that there was 
``no need to alter the nature and scope of the copyrights and 
exceptions, or change the substantive balance of rights embodied in 
the Copyright Act''). More recent research into the legislative 
history of U.S. law by Professor David Nimmer and Professor Peter 
Menell has provided additional textual support regarding Congress's 
views on the breadth of existing U.S. law and the broad scope of the 
making available right. See Melville B. Nimmer & David Nimmer, 2 
Nimmer On Copyright Sec.  8.11 (2012); Peter S. Menell, In Search of 
Copyright's Lost Ark: Interpreting the Right to Distribute in the 
Internet Age, 59 J. Copyright Soc'y U.S.A. 1, 50-51 (2011).

    While Section 106 of the U.S. Copyright Act does not 
specifically include anything called a ``making available'' right, 
the activities involved in making a work available are covered under 
the exclusive rights of reproduction, distribution, public display 
and/or public performance. . . . Which of these rights are invoked 
in any given context will depend on the nature of the ``making 
available'' activity.\6\
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    \6\ Piracy of Intellectual Property on Peer-to-Peer Networks: 
Hearing Before the Subcomm. on Courts, the Internet, and 
Intellectual Property of the H. Comm. on the Judiciary, 107th Cong. 
114 (2002) (letter from Marybeth Peters, Register of Copyrights, 
United States Copyright Office).

Indeed, both Congress and the Executive Branch have continued to 
support this view since the enactment of the DMCA.\7\
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    \7\ See Internet Policy Task Force, U.S. Dep't of Commerce, 
Copyright Policy, Creativity, and Innovation in the Digital Economy 
15-16 (2013), available at http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf (noting that Copyright Act's distribution 
right was intended to include ``the mere offering of copies to the 
public'' and that contrary judicial decisions ``predate . . . recent 
academic scholarship'' on ``previously unanalyzed legislative 
history'').

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[[Page 10572]]

    The lack of explicit references to these rights in U.S. law, 
however, has led some courts and commentators to express uncertainty 
over how the existing rights in Title 17 may apply to various methods 
of making of copyrighted works available to the public, including in 
the digital environment. Especially in the Internet era, in any given 
case several of these rights (reproduction, distribution, public 
performance, and public display) may be at issue, depending on the 
facts involved.
    Courts, academics, and practitioners particularly have focused on 
the scope of the distribution right under Section 106 and have debated 
whether it fully encompasses the making available of a copyrighted work 
without proof of an actual distribution.\8\ For example, two early 
Eighth and Fourth Circuit cases discussing making available yielded 
conflicting results. The Eighth Circuit in National Car Rental System, 
Inc. v. Computer Associates International, Inc. rejected the notion 
that making a work available without more violated the distribution 
right.\9\ The principal authority to the contrary is the Fourth 
Circuit's decision in Hotaling v. Church of Jesus Christ of Latter-Day 
Saints, in which the defendants made several unauthorized microfiche 
copies of genealogical research materials, one of which ended up in a 
library collection.\10\ The library did not keep records of public use, 
and therefore there was no evidence of the copy being loaned to the 
public.\11\ The court found that making a work available to the public 
constituted distribution because ``[w]hen a public library adds a work 
to its collection, lists the work in its index or catalog system, and 
makes the work available to the borrowing or browsing public, it has 
completed all the steps necessary for distribution to the public.'' 
\12\
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    \8\ The Section 106 distribution right is far broader than the 
new distribution right afforded under the WIPO Treaties (WCT art. 6 
and WPPT arts. 8, 12).
    \9\ 991 F.2d 426, 430 (8th Cir. 1993) (``[W]e cannot conclude 
that an allegation that National `permitted the use' necessarily 
amounts to an allegation of the actual distribution of a copy of the 
program.'').
    \10\ 118 F.3d 199, 202 (4th Cir. 1997).
    \11\ Id. at 203.
    \12\ Id.
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    A recent Tenth Circuit decision, Diversey v. Schmidly,\13\ followed 
Hotaling's conclusion that making a work available to the public 
constitutes distribution under Section 106(3). Diversey involved a 
similar situation to Hotaling and addressed a library lending an 
unauthorized copy of a work to the public. The Tenth Circuit noted, 
however, that there has not been consensus on Hotaling's applicability 
to Internet file-sharing cases, and the court avoided extending its 
holding to those digital situations.\14\
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    \13\ Diversey v. Schmidly, No. 13-2058, 2013 U.S. App. LEXIS 
25506, at *12-13 (10th Cir. Dec. 23, 2013).
    \14\ Id. at *13-14 n.7.
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    Other courts have addressed the scope of the distribution right in 
the online context and have reached similarly conflicting results. The 
Ninth Circuit in A&M Records v. Napster, Inc. concluded that 
distribution encompasses ``making available,'' observing that ``Napster 
users who upload file names to the search index for others to copy 
violate plaintiffs' distribution rights.'' \15\ Other courts have 
disagreed and required actual distribution. Thus, the court in London-
Sire Records, Inc. v. Doe 1, which considered infringement of the 
distribution right through peer-to-peer file sharing, cast doubt on 
Hotaling, asserting that ``[m]erely because the defendant has 
`completed all the steps necessary for distribution' does not 
necessarily mean that a distribution has actually occurred.'' \16\ 
Notably, however, while the London-Sire court required actual 
distribution, it did not require direct evidence of dissemination over 
peer-to-peer networks, holding instead that a reasonable fact-finder 
may infer that distribution actually took place where the defendant has 
completed all necessary steps for a public distribution.\17\ Other 
courts have also relied on the language of Section 106(3) to require 
actual distribution in order to find a violation of that right.\18\
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    \15\ A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 
(9th Cir. 2001); see also Universal City Studios Prods. LLLP v. 
Bigwood, 441 F. Supp. 2d 185, 190 (D. Me. 2006) (``[B]y using KaZaA 
to make copies of the Motion Pictures available to thousands of 
people over the internet, Defendant violated Plaintiffs' exclusive 
right to distribute the Motion Pictures.''); Warner Bros. Records, 
Inc. v. Payne, 2006 U.S. Dist. LEXIS 65765, at *8 (W.D. Tex. 2006) 
(``Listing unauthorized copies of sound recordings using an online 
file-sharing system constitutes an offer to distribute those works, 
thereby violating a copyright owner's exclusive right of 
distribution.'').
    \16\ 542 F. Supp. 2d 153, 168 (D. Mass. 2008) (quoting Hotaling, 
118 F.3d at 203).
    \17\ Id. at 169.
    \18\ See Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 
1218 (D. Minn. 2008) (concluding it was bound by the holding in 
National Car and stating that although ``the Copyright Act does not 
offer a uniform definition of `distribution' . . . Congress's choice 
to not include offers to do the enumerated acts or the making 
available of the work indicates its intent that an actual 
distribution or dissemination is required in Sec.  106(3)''); 
Atlantic Recording Corp. v. Howell, 554 F. Supp. 2d 976, 983 (D. 
Ariz. 2008) (``The statute provides copyright holders with the 
exclusive right to distribute `copies' of their works to the public 
`by sale or other transfer of ownership, or by rental, lease, or 
lending.' Unless a copy of the work changes hands in one of the 
designated ways, a `distribution' under Sec.  106(3) has not taken 
place. Merely making an unauthorized copy of a copyrighted work 
available to the public does not violate a copyright holder's 
exclusive right of distribution.'').
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    In sum, while Congress and the Copyright Office have agreed that 
U.S. law covers the making available right of the WCT, courts have 
encountered difficulties in evaluating the scope of this interactive 
right, and the level of evidence needed to establish liability, in the 
specific cases before them.\19\
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    \19\ As noted, in addition to the distribution right, the right 
of making available also implicates the rights of reproduction, 
public performance, and public display. The Supreme Court recently 
grated certiorari in a case involving the scope of the public 
performance right in the context of online streaming of broadcast 
television programs. See Am. Broad. Cos., Inc. v. Aereo, Inc., 82 
U.S.L.W. 3241 (U.S. Jan. 10, 2014) (No. 13-461). Oral argument is 
scheduled for April 22, 2014.
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    In a letter dated December 19, 2013, Representative Melvin L. Watt 
requested that the Copyright Office ``assess the state of U.S. law 
recognizing and protecting `making available' and `communicating to the 
public' rights for copyright holders. . . . In light of the rapidly 
changing technology and inconsistency in the various court discussions 
of these rights . . . it is important that the Copyright Office study 
the current state of the law in the United States.'' Specifically, 
Representative Watt asked the Office to review and assess: ``(1) How 
the existing bundle of exclusive rights under Title 17 covers the 
making available and communication to the public rights in the context 
of digital on-demand transmissions such as peer-to-peer networks, 
streaming services, and music downloads, as well as more broadly in the 
digital environment; (2) how foreign laws have interpreted and 
implemented the relevant provisions of the WIPO Internet Treaties; and 
(3) the feasibility and necessity of amending U.S. law to strengthen or 
clarify our law in this area.''
    On January 14, 2014, the House Judiciary Committee's Subcommittee 
on Intellectual Property, Competition, and the Internet held a hearing 
during which two witnesses were asked to address the issue of the 
making available right.\20\ These witnesses expressed a variety of 
views on whether current U.S. copyright law provides sufficient clarity 
on this issue and whether adding an explicit making available right to 
Title 17 would

[[Page 10573]]

be beneficial.\21\ They agreed, however, that current law is properly 
construed to provide such protection.\22\
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    \20\ See The Scope of Copyright Protection: Hearing Before the 
Subcomm. on Intellectual Property, Courts, & the Internet of the H. 
Comm. on the Judiciary, 113th Cong. (2014), available at http://judiciary.house.gov/index.cfm/2014/1/the-scope-of-copyright-protection.
    \21\ See Statement of David Nimmer, Professor, UCLA School of 
Law, The Scope of Copyright Protection, supra note 20 (``Nimmer 
Statement''); Statement of Glynn S. Lunney, Jr., Professor, Tulane 
University School of Law, The Scope of Copyright Protection, supra 
note 20 (``Lunney Statement''). These witness statements are 
available at http://docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=101642.
    \22\ See Nimmer Statement at 2-3; Lunney Statement at 1-4.
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II. Request for Comment

    In light of uncertainty among some courts regarding the nature and 
scope of the making available and communication to the public rights, 
and to facilitate the study requested by Representative Watt, the 
Copyright Office seeks public comments on the three main issues listed 
above. The Office poses additional questions on these three topics 
below, and requests that commenters identify the questions they are 
answering in their responses.

1. Existing Exclusive Rights Under Title 17

    a. How does the existing bundle of exclusive rights currently in 
Title 17 cover the making available and communication to the public 
rights in the context of digital on-demand transmissions such as peer-
to-peer networks, streaming services, and downloads of copyrighted 
content, as well as more broadly in the digital environment?
    b. Do judicial opinions interpreting Section 106 and the making 
available right in the framework of tangible works provide sufficient 
guidance for the digital realm?

2. Foreign Implementation and Interpretation of the WIPO Internet 
Treaties

    a. How have foreign laws implemented the making available right (as 
found in WCT Article 8 and WPPT Articles 10 and 14)? Has such 
implementation provided more or less legal clarity in those countries 
in the context of digital distribution of copyrighted works?
    b. How have courts in foreign countries evaluated their national 
implementation of the making available right in these two WIPO 
treaties? Are there any specific case results or related legislative 
components that might present attractive options for possible 
congressional consideration?

3. Possible Changes to U.S. Law

    a. If Congress continues to determine that the Section 106 
exclusive rights provide a making available right in the digital 
environment, is there a need for Congress to take any additional steps 
to clarify the law to avoid potential conflicting outcomes in future 
litigation? Why or why not?
    b. If Congress concludes that Section 106 requires further 
clarification of the scope of the making available right in the digital 
environment, how should the law be amended to incorporate this right 
more explicitly?
    c. Would adding an explicit ``making available'' right 
significantly broaden the scope of copyright protection beyond what it 
is today? Why or why not? Would existing rights in Section 106 also 
have to be recalibrated?
    d. Would any amendment to the ``making available'' right in Title 
17 raise any First Amendment concerns? If so, how can any potential 
issues in this area be avoided?
    e. If an explicit right is added, what, if any, corresponding 
exceptions or limitations should be considered for addition to the 
copyright law?
    If there are any pertinent issues not discussed above, the Office 
encourages interested parties to raise those matters in their comments.

III. Public Roundtable

    On May 5, 2014, the Copyright Office will hold a public roundtable 
to hear stakeholder views and to initiate discussion of the three 
topics identified above. The agenda and the process for submitting 
requests to participate in the public roundtable will be available on 
the Copyright Office Web site on or about April 7, 2014.

IV. Requests To Participate

    Requests to participate in the public roundtable should be 
submitted online at http://www.copyright.gov/docs/making_available/. 
Nonparticipants who wish to attend and observe the discussion should 
note that seating is limited and, for nonparticipants, will be 
available on a first come, first served basis.

    Dated: February 20, 2014.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2014-04104 Filed 2-24-14; 8:45 am]
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