[Federal Register Volume 80, Number 110 (Tuesday, June 9, 2015)]
[Notices]
[Pages 32614-32615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14116]



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LIBRARY OF CONGRESS

United States Copyright Office

[Docket No. 2015-3]


Mass Digitization Pilot Program; Request for Comments

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

ACTION: Notice of inquiry.

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SUMMARY: The U.S. Copyright Office is developing a limited pilot 
program and corresponding draft legislation that would establish a 
legal framework known as extended collective licensing for certain mass 
digitization activities that are currently beyond the reach of the 
Copyright Act. This request provides the opportunity for interested 
parties to submit specific recommendations regarding the operational 
aspects of the pilot program, within the parameters and legal framework 
described in the Office's Orphan Works and Mass Digitization report.

DATES: Comments must be received no later than 5:00 p.m. EDT on August 
10, 2015.

ADDRESSES: All comments should be submitted electronically. To submit 
comments, please visit http://copyright.gov/policy/massdigitization. 
The Web site interface requires commenting parties 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: A Portable Document 
File (PDF) format that contains searchable, accessible text (not an 
image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII 
text file (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 the comments publicly on the Office's Web site exactly 
as they are received, along with names and organizations. If electronic 
submission of comments is not feasible, please contact the Office at 
202-707-1027 for special instructions.

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

SUPPLEMENTARY INFORMATION:

I. Background

    The U.S. Copyright Office has completed a multi-year study on the 
issues of orphan works and mass digitization, respectively, and has 
published a report detailing its findings and recommendations.\1\ In 
the report, the Office proposes separate legislative solutions for each 
issue. With respect to orphan works, the Office has proposed, with 
certain conditions, a limitation on liability for good faith users, 
improving upon its 2006 Orphan Works Report as well as the Shawn 
Bentley Orphan Works Act passed by the Senate in 2008.\2\ With respect 
to mass digitization, the Office has concluded that the addition of 
extended collective licensing (ECL) in U.S. law would help to 
facilitate the work of those who wish to digitize and provide full 
access to certain collections of books, photographs, or other materials 
for nonprofit educational or research purposes. An ECL framework can 
facilitate lawful uses that are not otherwise possible (e.g., because 
they are beyond the reach of case-by-case licensing or the application 
of fair use or both). The Office's full analysis can be found at http://copyright.gov/orphan/.
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    \1\ See U.S. Copyright Office, Orphan Works and Mass 
Digitization: A Report of the Register of Copyrights (2015), 
available at http://www.copyright.gov/orphan.
    \2\ See id., Appendix A.
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    If Congress were to establish a limited and voluntary pilot program 
at this time, it would help the United States copyright community to 
garner experience with the kind of ECL experience that is either in 
place or being discussed in other countries. The pilot program would 
permit users to obtain licenses under specified conditions. Under the 
proposed framework, a collective management organization (CMO) 
representing copyright owners in a particular category of works would 
be permitted to seek authorization from the Register of Copyrights to 
issue licenses on behalf of both members and non-members of the CMO for 
certain mass digitization activities. To qualify for licensing 
authority, a CMO would be required to submit an application to the 
Office providing evidence of its representativeness in the relevant 
field, the consent of its membership to the ECL proposal, and its 
adherence to sufficient standards of transparency, accountability, and 
good governance. Once authorized, a CMO would be entitled to negotiate 
royalty rates and terms with users seeking to digitally reproduce and 
provide online access to a collection or body of copyrighted works for 
the benefit of the public, a community, or other specified users. 
Because the pilot is a limited project, such uses at this early 
juncture could be made only for nonprofit educational and research 
purposes and without any purpose of direct or indirect commercial 
advantage. The CMO would be required to collect and distribute 
royalties to rightsholders within a prescribed period and to conduct 
diligent searches for non-members for whom it had collected payments. 
Copyright owners would have the right to limit the grant of licenses 
with respect to their works or to opt out of the system altogether.
    To assist it in developing specific legislation within these 
general parameters, the Office invites public comment on the topics 
below regarding the practical operation of such a system. The Office 
will then seek to facilitate further discussion through stakeholder 
meetings and, if necessary, additional requests for written comment. 
Based on this input, the Office will draft a formal legislative 
proposal for Congress's consideration.

II. Request for Comment

    1. Examples of Projects. Comments are invited regarding examples of 
large digitization projects that may be appropriate for licensing under 
the Office's proposed ECL framework. The Office is particularly 
interested in the views of prospective users who may be interested in 
digitizing and offering access to a specific collection or body of 
works. The Office believes that information about the types of mass 
digitization projects that users have the desire and capacity to 
undertake will provide a useful starting point for stakeholder dialogue 
on various elements of the ECL pilot. Other interested members of the 
public, however, are also invited to submit their views. Specifically, 
commenters should address the following issues:
    a. Qualifying Collections. The Office has recommended that ECL be 
available for three categories of published copyrighted works: (1) 
Literary works; (2) pictorial or graphic works published as 
illustrations, diagrams, or similar adjuncts to literary works; and (3) 
photographs. Within these categories, please describe or provide 
examples of the types of collections that you believe should be 
eligible for licensing under the ECL pilot. For example, should the 
pilot be limited to collections involving a minimum number of 
copyrighted works? If so, what should that threshold number be? Should 
collections that include commercially available works be eligible for 
ECL, or should the program cover only out-of-commerce works? Should the 
program be limited to works published before a certain

[[Page 32615]]

date? If so, what date would be advisable?
    b. Eligibility and Access. Please describe any appropriate 
limitations on the end-users who should be eligible to access a digital 
collection under a qualifying mass digitization project. For example, 
should access be limited to students, affiliates, and employees of the 
digitizing institution, or should ECL licensees be permitted to provide 
access to the general public? In addition, please describe any 
appropriate restrictions on methods of access. Should licensees be 
permitted to offer access to a collection remotely, or only through 
onsite computer terminals?
    c. Security Requirements. The Office has recommended that CMOs and 
users be required to include, as part of any ECL license, terms 
requiring the user to implement and reasonably maintain adequate 
digital security measures to control access to the collection, and to 
prevent unauthorized reproduction, distribution, or display of the 
licensed works. Please describe any specific technical measures that 
should be required as part of this obligation. In addition, the Office 
invites stakeholder views on the extent to which specific security 
requirements should be set forth by statute or defined through 
Copyright Office regulations.
    2. Dispute Resolution Process. The Office has recommended that the 
ECL pilot provide for a dispute resolution process before the Copyright 
Royalty Board (CRB) when an authorized CMO and a prospective user are 
unable to agree to licensing terms. The Office is interested in 
receiving public comment on what form this process should take. Should 
the legislation authorize informal mediation, with the CRB's role 
limited to that of a facilitator of negotiations? Or should the statute 
provide for binding arbitration? Some foreign ECL laws provide 
voluntary procedures under which parties can agree to submit their 
dispute to a binding proceeding, but are not required to do so.\3\ Do 
those laws provide a workable dispute resolution model for a U.S. ECL 
program?
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    \3\ See LOV 1961-05-12 nr 02: Lov om opphavsrett til 
[aring]ndsverk m.v. ([aring]ndsverkloven) [Act No. 2 of May 12, 1961 
Relating to Copyright in Literary, Scientific and Artistic Works], 
as amended on Dec. 22, 2006, Sec.  38 (Nor.), translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=248181 (unofficial 
translation), last amended by LOV-2014-06-13 nr 22 [Act No. 22 of 
June 13, 2014] (translation unavailable); Lag om medling i vissa 
upphovsr[auml]ttstvister (Svensk f[ouml]rfattningssamling [SFS] 
1980:612) [Act on Mediation in Certain Copyright Disputes] (1995) 
art. 5 (Swed.), translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=241666 (unofficial translation), as amended by Lag, 
May 26, 2005 (2005:361), translated at http://www.wipo.int/wipolex/en/text.jsp?file_id=129617 (unofficial translation), last amended by 
Lag, June 27, 2013 (2013:690) (translation unavailable).
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    3. Distribution of Royalties. To ensure that rightsholders receive 
compensation within a reasonable time, the Office has recommended that 
the legislation or regulations establish a specific period within which 
a CMO must distribute royalties to rightsholders whom it has identified 
and located. Both the United Kingdom's ECL regulations and the European 
Union's February 2014 Directive on collective rights management 
generally require that such payments be made no later than nine months 
from the end of the financial year in which the royalties were 
collected.\4\ In the United States, there is some industry precedent 
for distributions by CMOs on a quarterly basis.\5\ What would be an 
appropriate timeframe for required distributions under a U.S. ECL 
program?
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    \4\ Copyright and Rights in Performances (Extended Collective 
Licensing) Regulations 2014, S.I. 2014/2588, art. 18, ] 3 (U.K.) 
(``U.K. ECL Regulations''); Directive 2014/26/EU of the European 
Parliament and of the Council of 26 February 2014 on Collective 
Management of Copyright and Related Rights and Multi-Territorial 
Licensing of Rights in Musical Works for Online Use in the Internal 
Market, art. 13(1), 2014 O.J. (L 84) 72, 87, available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014L0026&from=EN.
    \5\ See, e.g., Copyright Clearance Center, Royalty Payment 
Schedule (2014), available at http://www.copyright.com/wp-content/uploads/2015/03/Royaltypaymentschedule.pdf; General FAQ, 
SoundExchange, http://www.soundexchange.com/about/general-faq/.
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    4. Diligent Search. The Office has recommended that a CMO be 
required to conduct diligent searches for non-member rightsholders for 
whom it has collected royalties. The Office believes that this 
obligation should include, but not be limited to, maintaining a 
publicly available list of information on all licensed works for which 
one or more rightsholders have not been identified or located.\6\ What 
additional actions should be required as part of a CMO's diligent 
search obligation?
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    \6\ Cf. U.K. ECL Regulations, S.I. 2014/2588, art. 18, ] 5; 
Directive 2014/26/EU art. 13(3).
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    5. Other Issues. Please comment on any additional issues that the 
Copyright Office may wish to consider in developing draft ECL 
legislation.

    Dated: June 4, 2015.
Karyn A. Temple Claggett,
Associate Register of Copyrights and Director of Policy and 
International Affairs.
[FR Doc. 2015-14116 Filed 6-8-15; 8:45 am]
 BILLING CODE 1410-30-P