[Federal Register Volume 81, Number 101 (Wednesday, May 25, 2016)]
[Proposed Rules]
[Pages 33153-33155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12227]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 81, No. 101 / Wednesday, May 25, 2016 / 
Proposed Rules  

[[Page 33153]]



LIBRARY OF CONGRESS

 Copyright Office

37 CFR Part 201

[Docket No. RM 2011-6]


Designation of Agent To Receive Notification of Claimed 
Infringement

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

ACTION: Notice of proposed rulemaking and request for comments.

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SUMMARY: Under the Digital Millennium Copyright Act (``DMCA''), the 
U.S. Copyright Office is required to maintain a current directory of 
agents that have been designated by online service providers to receive 
notifications of claimed infringement. Since the DMCA's enactment in 
1998, online service providers have used a paper form to designate 
agents with the Copyright Office, and the Office has made scanned 
copies of those paper forms available to the public by posting them on 
the Office's Web site. In 2011, the Copyright Office issued a notice 
proposing updated regulations governing the designation of agents under 
the DMCA in anticipation of the creation of a new online system though 
which service providers could more efficiently designate agents with 
the Copyright Office and the public could more easily search for such 
agents. With the development of this electronic system approaching 
completion, this notice proposes an amendment of the Office's 
regulations to lower the fee for designating an agent under the DMCA.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on June 24, 2016.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office Web site 
at http://www.copyright.gov/rulemaking/onlinesp/NPR. If electronic 
submission of comments is not feasible due to lack of access to a 
computer and/or the internet, please contact the Office using the 
contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT: Jacqueline C. Charlesworth, General 
Counsel and Associate Register of Copyrights, by email at 
[email protected], Sarang V. Damle, Deputy General Counsel, by 
email at [email protected], or Jason E. Sloan, Attorney-Advisor, by email at 
[email protected]. Each can be contacted by telephone by calling 202-707-
8350.

SUPPLEMENTARY INFORMATION:

I. Background

    In 1998, Congress enacted section 512 of title 17, United States 
Code, as part of the DMCA.\1\ Among other things, section 512 provides 
safe harbors from copyright infringement liability for online service 
providers engaged in specified activities and that meet certain 
eligibility requirements.\2\ A service provider seeking to avail itself 
of the safe harbor in section 512(c) (for storage of material at the 
direction of a user) is required to designate an agent to receive 
notifications of claimed copyright infringement by making contact 
information for the agent available through its service, including on 
its Web site in a location accessible to the public, and by providing 
such contact information to the Copyright Office.\3\ Although the 
requirement to designate an agent to receive notifications of claimed 
infringement is detailed in subsection 512(c), the safe harbors in 
subsections 512(b) (for system caching) and (d) (for information 
location tools), incorporate the notice provisions of section 
512(c)(3), which in turn require that notices be sent to ``the 
designated agent of a service provider.'' \4\ For its part, the 
Copyright Office is required to maintain a current online directory of 
designated agents that is available to the public, and is authorized to 
require payment of a fee by service providers to cover the costs of 
maintaining the system.\5\
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    \1\ Public Law 105-304, 112 Stat. 2860 (1998).
    \2\ See 17 U.S.C. 512.
    \3\ Id. at 512(c)(2).
    \4\ See id. at 512(b)(2)(E), (d)(3).
    \5\ Id. at 512(c)(2).
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    Because the DMCA was effective on its date of enactment and a 
procedure to enable the designation of agents needed to be in place 
immediately, the Copyright Office issued, without opportunity for 
comment, interim regulations governing the designation of agents to 
receive notifications of claimed infringement.\6\ Those interim 
regulations, which are still in effect today, require service providers 
to submit a paper form to the Copyright Office setting forth the 
requisite information for the designated agent.\7\ The Copyright Office 
then scans the forms and posts them on its Web site.\8\
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    \6\ See 63 FR 59233 (Nov. 3, 1998).
    \7\ See 37 CFR 201.38.
    \8\ See http://www.copyright.gov/onlinesp/.
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    In an effort to update the existing system, the Office issued a 
notice of proposed rulemaking (``NPRM'') on September 28, 2011, 
describing the Office's proposal for a new electronic system though 
which service providers could more efficiently designate agents with 
the Copyright Office and the public could more easily search for such 
agents in the online directory.\9\ The NPRM sought public comment on 
proposed rules that would govern the submission and updating of 
information relating to designated agents under such a system.\10\ The 
NPRM also explained that the Office would establish new fees to file, 
renew,\11\ or amend the designation of an agent, and that it would 
publish a notice of proposed rulemaking to seek comments on the 
proposed fees.\12\
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    \9\ See 76 FR 59953 (Sept. 28, 2011).
    \10\ Id.
    \11\ In the NPRM, the Office explained that the proposed system 
would require service providers to periodically ``validate'' the 
designated agent information with the Copyright Office, to ensure 
that the information in the Office's directory would remain current 
and accurate. See id. at 59954-55. To avoid confusion and better 
reflect the actual operation of the anticipated electronic system, 
the Office will refer to this process as the ``renewal'' of the 
designation rather than the ``validation'' of the designation.
    \12\ Id. at 59956, 59959-60.
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    Following the 2011 NPRM, the Library of Congress commenced the 
software development effort. Although it appeared at that time that the 
Library would be able to commit the necessary resources to complete 
development of the system without significant delay, as it turned out, 
the Library was unable to

[[Page 33154]]

supply the requisite resources until fairly recently. With the new 
electronic system now nearing completion, the Office seeks public 
comment on proposed fees to use it.

II. Discussion

    Section 512(c)(2) of title 17 authorizes the Register of Copyrights 
to ``require payment of a fee by service providers to cover the costs'' 
of maintaining a directory of agents designated to receive 
notifications of claimed infringement.'' \13\ In addition, section 
708(a) of title 17 more generally authorizes the Register to fix fees 
for certain Office services, including the electronic directory, based 
on the cost of providing the service.\14\
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    \13\ 17 U.S.C. 512(c)(2).
    \14\ See id. at 708(a) (``The Register is authorized to fix fees 
for other services [not enumerated in section 708(a)(1)-(9)] based 
on the cost of providing the service.'').
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    Currently, the fee for a service provider to designate an agent 
with the Office, or amend a designation, is $105, plus an additional 
fee of $35 for each group of 1 to 10 alternate names used by the 
service provider.\15\ This fee reflects the cost to the Office of 
receiving, reviewing, scanning, and posting the paper forms submitted 
by service providers, a largely manual process. Based on an analysis of 
the cost of operating and maintaining the new electronic system, the 
Office believes that the fee to designate an agent to receive a 
notification of claimed infringement can be much lower, and should be 
established at six dollars per designation--whether a new designation, 
a renewed designation, or an amended designation. At this time, the 
Office does not believe that an additional fee to include alternate 
names with a designation to be warranted, as the Office does not 
currently foresee appreciable additional costs due to the submission of 
alternate names through the online process.
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    \15\ 37 CFR 201.3(c)(17).
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    This significantly lower proposed fee reflects the far greater 
efficiency of the electronic system for the Copyright Office. The 
Office arrived at the six dollar amount by considering the total 
personnel costs associated with administering and maintaining the new 
service, spread across the anticipated volume of designations. The 
Office expects that ongoing support for any operational system will 
require Copyright Office staff to monitor, evaluate, and address issues 
that may arise with the system, as well as the portions of the Office's 
Web site that will integrate with the system, as needed. Additionally, 
support will be needed to respond to any user concerns that may arise, 
as well as to manage payments received. Based on the cost of employee 
time spent on these tasks (including salary and benefits), the Office 
calculates the total costs to be approximately $41,000 per year.\16\ 
With respect to the anticipated number of designations that will be 
filed, the Office notes that 23,300 designations have been filed since 
1998 and are included in the existing directory.\17\ While it is 
difficult to know how many remain active, undoubtedly a significant 
portion--for present purposes, the Office is estimating 75% to 85%--
represent service providers that continue to operate. In addition, the 
Office expects a certain number of new and amended designations to be 
filed in the coming years. In total, the Office estimates an average of 
7,000 designations to filed per year.\18\ Should experience with the 
system suggest that the anticipated personnel and overhead expenses or 
estimated volume of designations is incorrect, the Office will revisit 
the fee.
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    \16\ It is anticipated that the Office will not need to maintain 
the system's IT infrastructure from a technical standpoint because 
the Library currently provides these services to the Office. If the 
Library begins charging for these services, or if the Office takes 
over these IT functions in the future, the fee may need to be 
reevaluated.
    \17\ The number of listings appears higher in the current DMCA 
directory because each alternate name in a designation is listed 
separately, even though each such listing links to a single 
designation filing.
    \18\ These calculations assume that active existing designations 
will need to be refiled electronically in the new system. The 
calculations also anticipate that to keep the directory up to date, 
designations will be renewable on a three-year basis.
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    At this time, the Office is soliciting comments only on the fee for 
the new system. Accordingly, comments in response to this notice should 
be directed solely to the appropriateness of the proposed fee.\19\
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    \19\ The Office, in its prior notice, previously asked for and 
received comments on the design and operation of the electronic 
system. Those comments will be separately reviewed and discussed in 
conjunction with the final rule that will govern the system.
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List of Subjects in 37 CFR Part 201

    Copyright.

Proposed Regulation

    In consideration of the foregoing, the Copyright Office proposes to 
amend 37 CFR part 201 as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority: 17 U.S.C. 702.

0
2. Revise entry (17) in the table to Sec.  201.3(c) to read as follows:


Sec.  201.3  Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Division.

* * * * *
    (c) * * *

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   Registration, recordation and related services        Fees ($)
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                              * * * * * * *
 
(17) Designation of agent under Sec.   512(c)(2) to               6
 receive notification of claimed infringements,
 including renewal or amendment of designation.....
 
                              * * * * * * *
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[[Page 33155]]

* * * * *

    Dated: May 19, 2016.
Jacqueline C. Charlesworth,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2016-12227 Filed 5-24-16; 8:45 am]
BILLING CODE 1410-30-P