[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Notices]
[Pages 7870-7875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01294]


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LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2017-2]


Study on the Moral Rights of Attribution and Integrity

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

ACTION: Notice of inquiry.

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SUMMARY: The United States Copyright Office is undertaking a public 
study to assess the current state of U.S. law recognizing and 
protecting moral rights for authors, specifically the rights of 
attribution and integrity. As part of this study, the Office will 
review existing law on the moral rights of attribution and integrity, 
including provisions found in title 17 of the U.S. Code as well as 
other federal and state laws, and whether any additional protection is 
advisable in this area. To support this effort and provide thorough 
assistance to Congress, the Office is seeking public input on a number 
of questions.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on March 9, 2017. Written reply comments must be received 
no later than 11:59 p.m. Eastern Time on April 24, 2017. The Office may 
announce one or more public meetings, to take place after written 
comments are received, by separate notice in the future.

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 must be submitted 
electronically. Specific instructions for submitting comments will be 
posted on the Copyright Office Web site at https://www.copyright.gov/policy/moralrights/comment-submission/. To meet accessibility 
standards, all comments must be provided in a single file not to exceed 
six megabytes (MB) in one of the following formats: Portable Document 
File (PDF) format containing searchable, accessible text (not an 
image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII 
text file format (not a scanned document). All comments must include 
the name of the submitter and any organization the submitter 
represents. The Office will post all comments publicly in the form that 
they are received. 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: Kimberley Isbell, Senior Counsel for 
Policy and International Affairs, by email at [email protected] or by 
telephone at 202-707-8350; or Maria Strong, Deputy Director for Policy 
and International Affairs, by email at [email protected] or by telephone 
at 202-707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

    The term ``moral rights'' is taken from the French phrase droit 
moral, and generally refers to certain non-economic rights that are 
considered personal to an author.\1\ Chief among these are the right of 
an author to be credited as the author of his or her work (the right of 
attribution), and the right of an author to prevent prejudicial 
distortions of the work (the right of integrity). These rights have a 
long history in international copyright law, dating back to the turn of 
the 20th century when several European countries included provisions on 
moral rights in their copyright laws.\2\ A provision on moral rights 
was first adopted at the international level through the Berne 
Convention for the Protection of Literary and Artistic Works (``Berne 
Convention'') during its Rome revision in 1928.\3\ The current text of 
article 6bis(1) of the Berne Convention states: ``Independently of the 
author's economic rights, and even after the transfer of the said 
rights, the author shall have the right to claim authorship of the work 
and to object to any distortion, mutilation or other modification of, 
or other derogatory action in relation to, the said work, which would 
be prejudicial to his honor or reputation.'' \4\
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    \1\ In this Notice, we use the general term ``author'' to 
include all creators, including visual artists and performers.
    \2\ See Sam Ricketson & Jane C. Ginsburg, International 
Copyright and Neighboring Rights: The Berne Convention and Beyond ]] 
10.03-.04, at 587-89 (2d ed. 2006).
    \3\ 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 ] BC[hyphen]6bis, at 44 (2003).
    \4\ Berne Convention for the Protection of Literary and Artistic 
Works art. 6bis(1), Sept. 9, 1886, as revised July 24, 1971, and as 
amended Sept. 28, 1979, S. Treaty Doc. No. 99-27 (1986).
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    In contrast to the early adoption of strong moral rights 
protections in

[[Page 7871]]

Europe, the United States' experience with the concept of moral rights 
is more recent. The United States did not adopt the Berne Convention 
right away, only joining the Convention in 1989.\5\ At that time, the 
United States elected not to adopt broad moral rights provisions in its 
copyright law, but instead relied on a combination of various state and 
federal statutes to comply with its Berne obligations.\6\
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    \5\ Berne Convention Implementation Act of 1988, Public Law 100-
568, 102 Stat. 2853 (``BCIA'').
    \6\ See discussion on the BCIA infra notes 15-23 and 
accompanying text.
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    In July 2014, the Subcommittee on Courts, Intellectual Property, 
and the Internet of the House Judiciary Committee held a hearing that 
focused in part on moral rights for authors in the United States as 
part of its broader review of the nation's copyright laws.\7\ At that 
hearing, the Chairman of the House Judiciary Committee, Representative 
Bob Goodlatte, noted that ``we should consider whether current law is 
sufficient to satisfy the moral rights of our creators or, whether 
something more explicit is required.'' \8\ The Ranking Member of the 
Subcommittee, Representative Jerrold Nadler, also indicated his 
interest in a further evaluation of the status of moral rights in the 
United States, asking ``how our current laws are working and what, if 
any, changes might be necessary and appropriate.'' \9\ Register of 
Copyrights Maria Pallante recommended further study of moral rights in 
her testimony before Congress at the end of the two-year copyright 
review hearings process,\10\ at which time the Ranking Member of the 
House Judiciary Committee requested that the Office undertake this 
study.\11\ As part of the preparation for this study, the Copyright 
Office co-hosted a day-long symposium on moral rights in April 2016 in 
order to hear views about current issues in this area. The Office is 
now commencing a formal study on moral rights and soliciting public 
input.
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    \7\ See Moral Rights, Termination Rights, Resale Royalty, and 
Copyright Term: Hearing Before the Subcomm. on Courts, Intellectual 
Prop., & the Internet of the H. Comm. on the Judiciary, 113th Cong. 
(2014) (``Moral Rights Hearing'').
    \8\ Moral Rights Hearing at 4.
    \9\ Id.
    \10\ Register's Perspective on Copyright Review: Hearing Before 
the H. Comm. on the Judiciary, 114th Cong. 34-35 (2015) (written 
statement of Maria A. Pallante, Register of Copyrights and Dir., 
U.S. Copyright Office) (``Register's Perspective Hearing'').
    \11\ Register's Perspective Hearing at 49 (statement of Rep. 
John Conyers, Ranking Member, H. Comm. on the Judiciary).
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A. Moral Rights in the United States Prior to Implementation of the 
Berne Convention in 1989

    In the late 1950s, the Copyright Office and Congress reviewed the 
issue of moral rights as part of the larger, comprehensive review of 
the copyright laws leading to a general revision of the 1909 Copyright 
Act.\12\ In support of the review, William Strauss completed a study 
for the Office entitled ``The Moral Right of the Author'' in 1959.\13\ 
The report found that U.S. common law principles, such as those 
governing tort and contract actions, ``afford an adequate basis for 
protection of [moral] rights'' and can provide the same protection 
given abroad under the doctrine of moral rights.\14\
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    \12\ As part of the consideration for possible accession to the 
Berne Convention, the general review of the 1909 Act took more than 
20 years and resulted in the 1976 Copyright Act.
    \13\ See William Strauss, Study No. 4: The Moral Right of the 
Author (1959), in Staff of S. Comm. on the Judiciary, 86th Cong., 
Copyright Law Revision: Studies Prepared for the Subcomm. on 
Patents, Trademarks, and Copyrights of the Comm. on the Judiciary, 
United States Senate: Studies 1-4, at 109 (Comm. Print 1960).
    \14\ Strauss at 142. The report rejected the idea of an 
``irreconcilable breach between European and American concepts of 
protection of authors' personal rights,'' instead concluding that 
U.S. and European courts generally arrived at the same results in 
upholding the same rights or limitations on those rights, just in 
different ways. Id. at 141-42.
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    Later, Congress considered the specific question of ``whether the 
current law of the United States is sufficient, or whether additional 
laws are needed, to satisfy [Berne article 6bis's] requirements.'' \15\ 
The majority of those who testified before Congress argued against any 
change to U.S. law concerning an artist's right to control attribution 
or any alteration to his creation, stating that current U.S. law was 
sufficient.\16\ Indeed, WIPO Director General Dr. [Aacute]rp[aacute]d 
Bogsch explained to Congress that the United States did not need to 
make any changes to U.S. law to meet the obligations of article 
6bis.\17\
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    \15\ H.R. Rep. No. 100-609, at 33 (1988).
    \16\ See S. Rep. No. 100-352, at 6 (1988); H.R. Rep. No. 100-
609, at 33 (1988).
    \17\ See H.R. Rep. No. 100-609, at 37 (1988); S. Rep. No. 100-
352, at 10 (1988); see also Letter from Dr. [Aacute]rp[aacute]d 
Bogsch, Dir. Gen., World Intellectual Prop. Org., to Irwin Karp, 
Esq. (June 16, 1987), reprinted in Berne Convention Implementation 
Act of 1987: Hearing on H.R. 1623 Before the Subcomm. on Courts, 
Civil Liberties & the Admin. of Justice of the H. Comm. on the 
Judiciary, 100th Cong. 213 (1987) (``In my view, it is not necessary 
for the United States of America to enact statutory provisions on 
moral rights in order to comply with Article 6bis of the Berne 
Convention. The requirements under this Article can be fulfilled not 
only by statutory provisions in a copyright statute but also by 
common law and other statutes.'').
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    Both the House and Senate Judiciary Committees accepted this 
conclusion,\18\ finding that U.S. law met the requirements outlined in 
the Berne Convention's article 6bis based on the existing patchwork of 
laws in the United States, including:
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    \18\ See S. Rep. No. 100-352, at 9-10 (1988); H.R. Rep. No. 100-
609, at 37-38 (1988); see also S. Exec. Rep. No. 100-17, at 55 
(1988) (to accompany S. Treaty Doc. No. 99-27 (1986)) (statement of 
John K. Uilkema on behalf of Am. Bar Ass'n before the S. Comm. on 
Foreign Relations) (``Whether greater or lesser moral rights per se 
should be the subject of legislative consideration in the United 
States is a question that is separate and apart from the Berne 
adherence compatibility question.'').
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     Section 43(a) of the Lanham Act relating to false 
designations of origin and false descriptions, which could be applied 
in some instances to attribution of copyright-protected work.\19\
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    \19\ See 15 U.S.C. 1125(a).
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     The Copyright Act's provisions regarding protection of an 
author's exclusive rights in derivatives of his or her works; \20\ 
limits on a mechanical licensee's rights to arrange an author's musical 
composition; \21\ and termination of transfers and licenses.\22\
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    \20\ See 17 U.S.C. 106(2).
    \21\ See 17 U.S.C. 115(a)(2).
    \22\ See 17 U.S.C. 203.
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     State and local laws relating to publicity, contractual 
violations, fraud and misrepresentation, unfair competition, 
defamation, and invasion of privacy.\23\
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    \23\ See H.R. Rep. No. 100-609, at 34 (1988). Contract law is 
particularly important for authors to control aspects of their 
economic and moral rights. For example, the collective bargaining 
agreements that govern the creation of major motion pictures often 
contain explicit requirements with regards to attribution for 
actors, writers, directors, and other guilds. Many copyright sectors 
that involve numerous authors and participants in the creative 
process, such as filmed entertainment, business and entertainment 
software, music production, and book publishing, also rely on both 
employment agreements and the work-for-hire doctrine to determine 
ownership issues, which in turn may include elements related to 
attribution and integrity.
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B. Subsequent Developments After the U.S. Implementation of the Berne 
Convention

    Since the United States' implementation of the Berne Convention 
over 25 years ago, there have been a number of legal and technological 
developments affecting the scope and protection of moral rights. In 
1990, Congress passed the Visual Artists Rights Act (VARA), codified at 
section 106A of the Copyright Act, \24\

[[Page 7872]]

which guarantees to authors of works of ``visual arts'' the right to 
claim or disclaim authorship in a work and limited rights to prevent 
distortion, mutilation, or modification of a work.\25\ In contrast to 
how moral rights were often adopted elsewhere, with VARA, Congress 
identified specific instances in which the limited rights could be 
waived.\26\ As part of the legislation, Congress also directed the 
Copyright Office to conduct studies on the VARA waiver provision and 
also on resale royalties.\27\
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    \24\ Visual Artists Rights Act (VARA) of 1990, Public Law 101-
650, 104 Stat. 5128-29 (codified at 17 U.S.C. 106A). In the Report 
accompanying H.R. 2690 (Visual Artists Rights Act of 1990), the 
House Judiciary provided background information on the Berne 
Convention and moral rights, noting that the Congress at the time of 
the BCIA agreed that existing federal and state laws were sufficient 
to comply with the Berne Convention requirements, but that 
``adherence to the Berne Convention did not end the debate about 
whether the United States should adopt artists' rights laws, and the 
Subcommittee on Courts, Intellectual Property, and the 
Administration of Justice continued its review of the issue in 
[hearings held] in June.'' H.R. Rep. No. 101-514, at 8 (1990). 
Congress cited the ``critical factual and legal differences in the 
way visual arts and audiovisual works are created and disseminated'' 
in support of providing additional protections for visual artists. 
H.R. Rep. No. 101-514, at 9 (1990).
    \25\ See 17 U.S.C. 101 (definition of a ``work of visual art''); 
Sec.  106A(a)(1) (providing for the right of attribution); Sec.  
106A(a)(3) (providing for the right of integrity). Section 604 of 
VARA, codified at 17 U.S.C. 113, created special rules for removal 
of works visual art incorporated into buildings. Unlike Berne's 
article 6bis, VARA's protections only apply to works of visual art.
    \26\ See H.R. Rep. No. 101-514, at 18 (1990). VARA permits 
authors to waive these rights only if expressly agreed in a written 
instrument signed by the author. See 17 U.S.C. 106A(e).
    \27\ See Visual Artists Rights Act of 1990, Public Law 101-650, 
608, 104 Stat. 5128, 5132 (1990). The Copyright Office's 1992 study 
concluded there was insufficient economic and copyright policy 
justification to establish droit de suite in the United States. See 
U.S. Copyright Office, Droit De Suite: The Artist's Resale Royalty 
xv (1992), http://www.copyright.gov/history/droit_de_suite.pdf. In 
2013, the Copyright Office responded to a congressional request and 
issued a second report which examined the changes in law and 
practice regarding resale royalties, in both the United States and 
abroad, since the 1992 report. See U.S. Copyright Office, Resale 
Royalties: An Updated Analysis (2013), http://www.copyright.gov/docs/resaleroyalty/usco-resaleroyalty.pdf.
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    In its 1996 report on the waiver provision, the Office concluded it 
could not make an accurate assessment of the impact of VARA's waiver 
provisions because artists and art consumers were generally unaware of 
moral rights and recommended that in order for artists to take 
advantage of their legal rights under VARA, further education about 
moral rights in the United States would be necessary.\28\ The Office 
also made observations about the implementation of moral rights 
obligations in other countries, finding that, of the laws reviewed by 
the Office, only the moral rights laws of the United Kingdom and Canada 
contained express waiver provisions.\29\
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    \28\ See U. S. Copyright Office, Waiver of Moral Rights in 
Visual Artworks: Final Report of the Register of Copyrights xiii, 
186 (1996), https://www.copyright.gov/reports/waiver-moral-rights-visual-artworks.pdf (``Waiver of Moral Rights'').
    \29\ Waiver of Moral Rights at 183.
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The Supreme Court's 2003 Decision in Dastar
    In 2003, some scholars began to question the strength of the U.S. 
patchwork of protection as a result of the U.S. Supreme Court's ruling 
in Dastar Corp. v. Twentieth Century Fox Film Corp. (``Dastar''), which 
foreclosed some attribution claims under section 43(a) of the Lanham 
Act.\30\ The Court unanimously rejected an interpretation of section 
43(a) that would ``require attribution of uncopyrighted materials.'' 
\31\ Citing VARA, the Court said that when Congress has wanted to 
provide an attribution right under copyright law, ``it has done so with 
much more specificity than the Lanham Act's ambiguous use of `origin.' 
'' \32\ The Court found that ``origin of goods'' is most naturally 
understood as referring to the source of a physical product, not the 
person or entity that originated the underlying creative content.\33\ 
In a well-known sentence, Justice Scalia, writing for the Court, stated 
that permitting a section 43(a) claim for such misattribution ``would 
create a species of mutant copyright law that limits the public's 
`federal right to copy and to use' expired copyrights.'' \34\
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    \30\ 539 U.S. 23 (2003). Dastar involved the distribution of an 
edited version of a 1949 broadcast to which Twentieth Century Fox 
had owned the copyright but which it failed to renew, placing the 
work in the public domain. Dastar distributed copies of the edited 
series listing Dastar and its subsidiary as the producer and 
distributor of the edited work, rather than Fox. Fox sued for 
reverse passing off, claiming Dastar violated section 43(a) of the 
Lanham Act's prohibition against false designation of origin.
    \31\ Id. at 35.
    \32\ Id.at 34.
    \33\ See id. at 31-32.
    \34\ Id. at 34 (internal quote marks omitted). The Supreme Court 
left open the possibility of a Lanham Act claim under section 
43(a)(1)(B) where, in advertising for a copied work of authorship, 
the copier ``misrepresents the nature, characteristics [or] 
qualities'' of the work. Id. at 38.
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    Some lower courts have read Dastar as a broad prohibition on 
applying federal trademark and unfair competition laws in the realm of 
copyright, regardless of whether the copyrighted work remains under the 
term of protection or has fallen into the public domain.\35\ In 
contrast, some scholars have argued that the Court did not write 
federal trademark and unfair competition law out of the patchwork 
entirely.\36\
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    \35\ See, e.g., Kehoe Component Sales Inc. v. Best Lighting 
Prods., Inc., 796 F.3d 576, 587 (6th Cir. 2015); Gen. Universal 
Sys., Inc. v. Lee, 379 F.3d 131, 148-49 (5th Cir. 2004); Zyla v. 
Wadsworth, 360 F.3d 243, 251-52 (1st Cir. 2004); Carroll v. Kahn, 
No. 03-CV-0656, 2003 WL 22327299, at *5-6 (N.D.N.Y. Oct. 9, 2003).
    \36\ See, e.g., Jane C. Ginsburg, Moral Rights in the U.S.: 
Still in Need of a Guardian Ad Litem, 30 Cardozo Arts & Ent. L.J. 
73, 83-87 (2012); Justin Hughes, American Moral Rights and Fixing 
the Dastar ``Gap,'' 2007 Utah L. Rev. 659 (2007). At least one 
commenter has argued that not only do section 43(a)(1)(B) claims 
survive Dastar, but so do some section 43(a)(1)(A) claims. See 
Hughes at 692-95.
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Rights Management Information and Moral Rights for Performers
    Since implementation of the Berne Convention, the United States has 
joined two additional international treaties that address moral 
rights--the WIPO Copyright Treaty (WCT) and the WIPO Performances and 
Phonograms Treaty (WPPT). The WCT incorporates the substantive 
provisions of Berne, including those of article 6bis.\37\ Article 5 of 
the WPPT expands the obligations of Contracting Parties to recognize 
the moral rights of attribution and integrity for performers with 
respect to their live performances and performances fixed in 
phonograms.\38\ Furthermore, both the WCT and the WPPT include new 
obligations concerning rights management information (RMI).\39\ These 
provisions protect new means of identifying and protecting works while 
also helping protect the rights of attribution and integrity.\40\
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    \37\ See WIPO Copyright Treaty art. 1(4), Dec. 20, 1996, 2186 
U.N.T.S. 121 (``WCT''); see also Summary of the WIPO Copyright 
Treaty (WCT) (1996), WIPO, http://www.wipo.int/treaties/en/ip/wct/summary_wct.html.
    \38\ See WIPO Performances and Phonograms Treaty art. 5(1), Dec. 
20, 1996, 2186 U.N.T.S. 203 (``WPPT''). Like the Berne Convention, 
the WPPT provides that the duration of protection shall be at least 
for the term of economic rights and shall be governed by national 
law. WPPT arts. 5(2)-(3).
    \39\ See WCT art. 12; WPPT art. 19. WCT article 12 and WPPT 
article 19 define rights management information to include 
identification of the author and owner and terms of use of the work 
or sound recording.
    \40\ See J. Carlos Fern[aacute]dez-Molina & Eduardo Peis, The 
Moral Rights of Authors in the Age of Digital Information, 52 J. Am. 
Soc'y for Info. Sci. & Tech. 109, 112 (2001) (explaining how the 
WIPO Internet Treaties' rights management information provisions fit 
within the treaties and also are useful in protecting moral rights).
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    The United States implemented its WCT and WPPT obligations via 
enactment of the 1998 Digital Millennium Copyright Act (``DMCA''),\41\ 
and signed as a contracting party to both treaties in 1999, three years 
before the

[[Page 7873]]

treaties entered into force.\42\ Congress added a new chapter 12 to 
title 17, which contained two new provisions to implement the 
treaties--section 1201, which addresses technological protection 
measures, and section 1202, which protects rights management 
information (called copyright management information in U.S. law) 
\43\--but did not make any additional changes, finding that ``[t]he 
treaties do not require any change in the substance of copyright rights 
or exceptions in U.S. law.'' \44\
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    \41\ Digital Millennium Copyright Act (DMCA), Public Law 105-
304, 103 122 Stat. 2860, 2863-76 (1998) (codified as amended at 17 
U.S.C. 1201-1205). The WIPO Internet Treaties were submitted to 
Congress for advice and consent the previous year, and the Senate 
voted to approve the Treaties shortly before passage of the DMCA. 
See S. Treaty Doc. No. 105[hyphen]17 (1997); 105 Cong. Rec. S12,972-
73 (daily ed. Oct. 21, 1998).
    \42\ See WCT Notification No. 10: WIPO Copyright Treaty: 
Ratification by the United States of America, WIPO (Sept. 14, 1999), 
available at http://www.wipo.int/treaties/en/notifications/wct/treaty_wct_10.html; WPPT Notification No. 8: WIPO Performances and 
Phonograms Treaty: Ratification by the United States of America, 
WIPO (Sept. 14, 1999), available at http://www.wipo.int/treaties/en/notifications/wppt/treaty_wppt_8.html.
    \43\ The other sections of chapter 12 include sections 1203 and 
1204, which set forth available civil remedies and criminal 
sanctions for violation of sections 1201 and 1202, and section 1205, 
which explicitly carves out federal and state laws affecting 
Internet privacy. 17 U.S.C. Sec. Sec.  1203-1205.
    \44\ H.R. Rep. No. 105[hyphen]551, pt. 1, at 9 (1998).
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    Section 1202 includes prohibitions on both providing false 
copyright management information (``CMI''), and removing or altering 
CMI.\45\ In addition to facilitating the administration of an author's 
or right holder's economic rights, the CMI protections afforded by 
section 1202 may have implications for authors' protection and 
enforcement of their moral rights.\46\ However, two aspects of section 
1202 may limit its usefulness as a mechanism to protect an author's 
moral rights. First, to be liable under section 1202, a person who 
removes copyright management information must know both that they have 
caused its removal and that such removal is likely to cause others to 
infringe the work.\47\ Second, while most courts recognize section 1202 
as protecting against any removal of attribution from works, a minority 
of courts have limited section 1202 to protect only against removal of 
attribution that is digital or part of an ``automated copyright 
protection or management system.'' \48\
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    \45\ The term ``copyright management information'' in the 
Copyright Act is seen as a synonymous term for ``rights management 
information'' as used in the WCT and WPPT. See S. Rep. No. 105-190, 
at 11 n.18 (1998) (``Rights management information is more commonly 
referred to in the U.S. as copyright management information 
(CMI).'').
    \46\ Section 1202 makes it an offense to ``intentionally remove 
or alter any copyright management information,'' which includes the 
name of a work's author. 17 U.S.C. Sec. Sec.  1202(b)(1), (c)(2). 
See Jane C. Ginsburg, Have Moral Rights Come of (Digital) Age in the 
United States?, 19 Cardozo Arts & Ent. L.J. 9, 11 (2001) (``The DMCA 
may contain the seeds of a more general attribution right. . . .''); 
see also Greg Lastowka, Digital Attribution: Copyright and the Right 
to Credit, 87 B.U. L. Rev. 41, 69-73 (2007).
    \47\ See 17 U.S.C. 1202(a)-(b); see also Stevens v. Corelogic, 
No. 14-cv-1158, 2016 WL 4371549, at *5, 6 (S.D. Cal. July 1, 2016) 
(``Under Sec.  1202(b)(1), Plaintiffs must present evidence that 
[defendant] intentionally removed or altered CMI. . . . '' and 
``[a]lthough Plaintiffs need not show actual infringement, the fact 
that there was none is relevant to Plaintiffs' burden to show that 
[defendant] had a reasonable ground to believe it was likely to 
happen.'').
    \48\ Compare Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 
305 (3d Cir. 2011) (rejecting argument that the definition of CMI 
under section 1202 is ``restricted to the context of `automated 
copyright protection or management systems'''), and Williams v. 
Cavalli S.p.A., No. CV 14-06659-AB (JEMx), 2015 WL 1247065, at *3 
(C.D. Cal. Feb. 12, 2015) (holding that ``[t]he plain meaning of 
Sec.  1202 indicates that CMI can include non-digital copyright 
information''), and Leveyfilm, Inc. v. Fox Sports Interactive Media, 
LLC, 999 F. Supp. 2d 1098, 1101-02 (N.D. Ill. 2014) (noting that the 
majority of courts have rejected a requirement for CMI to be digital 
under section 1202), and Fox v. Hildebrand, No. CV 09-2085 DSF 
(VBKx), 2009 WL 1977996, at *3 (C.D. Cal. July 1, 2009) (``The plain 
language of the statute indicates that the DMCA provision at issue 
is not limited to copyright notices that are digitally placed on a 
work.''), with Textile Secrets Int'l Inc. v. Ya-Ya Brand Inc., 524 
F. Supp. 2d 1184, 1201 (C.D. Cal. 2007) (``[T]he Court [] cannot 
find that the provision was intended to apply to circumstances that 
have no relation to the Internet, electronic commerce, automated 
copyright protections or management systems, public registers, or 
other technological measures or processes as contemplated in the 
DMCA as a whole.''), and IQ Grp., Ltd. v. Wiesner Publ'g, LLC, 409 
F. Supp. 2d 587, 597 (D.N.J. 2006) (holding that ``[t]o come within 
Sec.  1202, the information removed must function as a component of 
an automated copyright protection or management system''). The 
majority position seems to accord with statements from the 
legislative history. See, e.g., S. Rep. No. 105-190, at 16 (1998) 
(``CMI need not be in digital form, but CMI in digital form is 
expressly included.'').
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Recent International Developments
    There have also been changes to the landscape of moral rights 
protection internationally since the U.S. acceded to the Berne 
Convention in 1989. The Copyright Office noted in its 1996 report 
Waiver of Moral Rights in Visual Artworks that, while statutory 
recognition of the commonly recognized moral rights--i.e., attribution 
and integrity--is the norm internationally, the strength of the moral 
rights laws varied among Berne members, even among those with the same 
basic legal systems.\49\ For example, at the time of the Report the 
United Kingdom required an author or her heirs, in some cases, to 
assert the right of paternity and was generally considered to have 
adopted one of the more restrictive approaches to implementing moral 
rights.\50\ However, ten years later, in 2006, the United Kingdom 
amended its moral rights provision by extending to qualifying 
performances the right to attribution and the right to object to 
derogatory treatment of a work.\51\
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    \49\ See Waiver of Moral Rights at 53.
    \50\ See Waiver of Moral Rights at 47-51, 53.
    \51\ See Performances (Moral Rights, etc.) Regulations 2006, SI 
2006/18, arts. 5-6 (UK).
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    The most recent international development on CMI and moral rights 
occurred four years ago at a Diplomatic Conference in Beijing where 
WIPO and its member states concluded a new treaty on audiovisual 
performances.\52\ Similar to the approach of the WPPT, the Beijing 
Treaty on Audiovisual Performances also contains provisions on CMI and 
moral rights for audiovisual performers.\53\
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    \52\ See Beijing Treaty on Audiovisual Performances, June 24, 
2012, 51 I.L.M. 1214 (2012) (``Beijing Treaty'').
    \53\ See Beijing Treaty art. 5 (``Moral Rights''), art. 16 
(``Obligations Concerning Rights Management Information''). 
Negotiations to conclude this treaty took more than a decade, with a 
major point of contention involving the provision on contractual 
transfers. See Beijing Treaty art. 12; see also Press Release, WIPO, 
WIPO Diplomatic Conference Opens in Beijing to Conclude Treaty on 
Performers' Rights in Audiovisual Productions, WIPO Press Release 
PR/2012/713 (June 20, 2012), available at http://www.wipo.int/pressroom/en/articles/2012/article_0012.html (noting that as far 
back as the year 2000 negotiators could not agree on the issue 
involving transfer of rights, and a breakthrough compromise occurred 
in June 2011). This treaty has not yet entered into force, and the 
United States has not yet ratified it. The Obama Administration has 
submitted a legislative package to Congress in support of U.S. 
implementation of the Beijing Treaty. See Letter from Michelle K. 
Lee, Under Sec'y Commerce for Intellectual Prop. & Dir., U.S. Patent 
& Trademark Office, to Joseph R. Biden, President of the Senate 
(Feb. 26, 2016), available at http://www.uspto.gov/sites/default/files/documents/Beijing-treaty-package.pdf (treaty implementation 
package for the Beijing Treaty on Audiovisual Performances which 
includes a transmittal letter, Beijing Treaty Implementation Act of 
2016, and Statement of Purpose and Need and Sectional Analysis).
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Availability and Use of Licenses, Contracts, and State Laws
    Another part of the patchwork upon which moral rights protection in 
the United States relies is state contract law, which allows authors to 
negotiate for protection of their rights of attribution and integrity 
through private ordering. Since the United States' accession to the 
Berne Convention, a major change to this area has been the emergence of 
Creative Commons and its various licenses that have simplified 
licensing for all kinds of authors and users, large and small. The CC 
license suites have served to facilitate private ordering, including 
for individual authors that would not previously have been able to 
afford the services of a lawyer to create licenses to govern use of 
their works.\54\

[[Page 7874]]

Currently there are over one billion works licensed under Creative 
Commons licenses, most of which require attribution of the author.\55\
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    \54\ Founded in 2001, Creative Commons offers various open 
source content licenses. Creative Commons Project, Cover Pages (Aug. 
22, 2008), http://xml.coverpages.org/creativeCommons.html. These 
types of licenses were held to be governed by copyright law rather 
than contract law in Jacobsen v. Katzer, 535 F.3d 1373, 1380-83 
(Fed. Cir. 2008).
    \55\ Creative Commons, https://creativecommons.org/ (last 
visited Jan. 5, 2017) (``1.1 billion works and counting.'').
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Changes in Technology to Deliver Content and Identify Content
    The evolution of technology in the past few decades has also 
impacted the availability of moral rights protections for modern 
authors. Technology can facilitate improved identification and 
licensing of works with persistent identifiers,\56\ while, at the same 
time, it can also make it easier to remove attribution elements and 
distribute the unattributed works widely.\57\
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    \56\ For example, the PLUS Coalition has created an image rights 
language to allow for global communication of image rights 
information, and it is currently developing an image registry that 
will function as a hub connecting registries worldwide and providing 
both literal and image-based searches. PLUS Coalition, Comments 
Submitted in Response to U.S. Copyright Office's Apr. 24, 2015 
Notice of Inquiry (Visual Works Study) at 1 (July 22, 2015) (noting 
that the Coalition's unique image rights language is meant to 
address the ``challenges [arising] from a present inability to 
ensure that any person or machine encountering a visual work has 
ready access to rights information sufficient to allow the work to 
be identified, and sufficient to facilitate an informed decision 
regarding the display, reproduction and distribution of the work'').
    \57\ Indeed, CMI is of particular interest to visual artists who 
embed copyright information in their works only to find it 
unlawfully stripped from digital copies. This makes it difficult for 
potential users to identify and contact the copyright owner to 
obtain a license to use a work found online. See Columbia University 
Libraries, Comments Submitted in Response to U.S. Office's Apr. 24, 
2015 Notice of Inquiry (Visual Works Study) at 2 (July 23, 2015) 
(``Rights metadata that includes author attribution and source 
information would [ ] facilitate subsequent re-uses of visual works 
while at the same time support the interests of legitimate copyright 
owners.'').
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II. Congressional Copyright Review and This Study

    As part of its effort to begin a dialogue about moral rights 
protections in the United States, the Copyright Office organized a 
symposium entitled ``Authors, Attribution, and Integrity: Examining 
Moral Rights in the United States,'' which was held on April 18, 
2016.\58\ The symposium served as a launching point for the issuance of 
this Notice of Inquiry.
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    \58\ The Office co-hosted this symposium with the George Mason 
University School of Law and its Center for the Protection of 
Intellectual Property. Videos of the proceedings can be accessed on 
the U.S. Copyright Office Web site event page at http://www.copyright.gov/events/moralrights/. The official transcript has 
been published by the George Mason Journal of International 
Commercial Law. See Symposium, Authors, Attribution, and Integrity: 
Examining Moral Rights in the United States, 8 Geo. Mason J. Int'l 
Com. L. 1 (2016), available at http://www.georgemasonjicl.org/wp-content/uploads/2016/08/Summer-Issue-2016.pdf.
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    Seven sessions covered the historical development of moral rights, 
the value authors place on moral rights, the various ways current law 
provides for these rights, and new considerations for the digital age. 
Participants, including professional authors, artists, musicians, and 
performers, discussed the importance that copyright law generally, and 
attribution specifically, plays in supporting their creative process 
and their livelihood.\59\ Leading academics provided an overview of the 
scope of moral rights and how countries, including the United States, 
approach these concepts. \60\
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    \59\ See Session 4: The Importance of Moral Rights to Authors, 8 
Geo. Mason J. Int'l Com. L. 87, 90 (2016).
    \60\ See Session 1: Overview of Moral Rights, 8 Geo. Mason J. 
Int'l Com. L. 7 (2016).
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    Many participants identified the right of attribution as 
particularly important to authors, both from a personal and from an 
economic perspective. For example, participants cited the role of 
copyright management information for purposes of attribution, and 
discussed the perceived strengths and limitations of section 1202.\61\ 
Keynote speaker Professor Jane Ginsburg posited ways to strengthen the 
right of attribution.\62\ Others discussed the possibilities of using 
non-copyright laws post-Dastar,\63\ as well as expressing concerns 
about how potential moral rights-like causes of action might interact 
with First Amendment protections.\64\
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    \61\ See, e.g., Jane C. Ginsburg, Keynote Address, The Most 
Moral of Rights: The Right to be Recognized as the Author of One's 
Work, 8 Geo. Mason J. Int'l Com. L. 44, 48, 60-72 (2016); Session 4: 
The Importance of Moral Rights to Authors, 8 Geo. Mason J. Int'l 
Com. L. 87, 91-93 (2016) (comments of Yoko Miyashita, Getty Images).
    \62\ See Jane C. Ginsburg, Keynote Address: The Most Moral of 
Rights: The Right to be Recognized as the Author of One's Work, 8 
Geo. Mason J. Int'l Com. L. 44, 72-81 (2016).
    \63\ See, e.g., Session 2: The U.S. Perspective, 8 Geo. Mason J. 
Int'l Com. L. 26, 30-34 (2016) (remarks of Duncan Crabtree-Ireland, 
SAG-AFTRA, & Peter K. Yu, Tex. A&M Univ. Sch. of Law); Session 6: 
New Ways to Disseminate Content and the Impact on Moral Rights, 8 
Geo. Mason J. Int'l Com. L. 125, 139 (2016) (remarks of Stanley 
Pierre-Louis, Entm't Software Ass'n).
    \64\ See Session 5: The Intersection of Moral Rights and Other 
Laws, 8 Geo. Mason J. Int'l Com. L. 106, 119-20 (2016) (remarks of 
Paul Alan Levy, Pub. Citizen).
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    Some participants asserted that the current patchwork of laws, 
particularly the availability of contract law, the work for hire 
doctrine, and collective bargaining agreements (available in some 
industry sectors), provides sufficient protection for moral rights 
concerns.\65\ In contrast, several voices criticized the limited scope 
of existing law, ranging from upset that a right of publicity is not a 
federal right \66\ to disappointment with VARA's under-inclusiveness 
and strict standards.\67\
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    \65\ See Session 2: The U.S. Perspective, 8 Geo. Mason J. Int'l 
Com. L. 26, 27-29 (2016) (remarks of Allan Adler, Ass'n of Am. 
Publishers (``AAP'')) (noting that the testimony of AAP at the 2014 
hearing ``raise[d] the threshold policy question of `whether to 
superimpose vague, subjective, and wholly unpredictable new rights 
upon a longstanding balanced and successful copyright system.''').
    \66\ See Session 2: The U.S. Perspective, 8 Geo. Mason J. Int'l 
Com. L. 26, 30 (2016) (remarks of Duncan Crabtree-Ireland, SAG-
AFTRA).
    \67\ See, e.g., Jane C. Ginsburg, Keynote Address, The Most 
Moral of Rights: The Right to be Recognized as the Author of One's 
Work, 8 Geo. Mason J. Int'l Com. L. 44, 53 (2016); Session 5: The 
Intersection of Moral Rights and Other Laws, 8 Geo. Mason J. Int'l 
Com. L. 106, 107-10, 113-14 (2016) (remarks of Sonya G. Bonneau, 
Geo. Univ. Law Ctr.; Eugene Mopsik, Am. Photographic Artists; & 
Nancy E. Wolff, Cowan, DeBaets, Abrahams & Sheppard LLP).
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    Discussion also addressed the role of technology, both in creation 
and in dissemination of authorized and unauthorized works. For example, 
a photographer noted the importance of attribution that stays with 
images,\68\ and a photo company described the technology they use to 
persistently connect authorship information to images.\69\
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    \68\ See Session 5: The Intersection of Moral Rights and Other 
Laws, 8 Geo. Mason J. Int'l Com. L. 106, 110 (2016) (remarks of 
Eugene Mopsik, Am. Photographic Artists).
    \69\ See Session 4: The Importance of Moral Rights to Authors, 8 
Geo. Mason J. Int'l Com. L. 87, 92 (2016) (remarks of Yoko 
Miyashita, Getty Images).
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    Looking at what lessons might be gleaned from the experiences of 
other countries, one panelist commented that there is ``tremendous 
diversity in how different countries have implemented moral rights,'' 
\70\ and another confirmed that moral rights litigation constitutes 
only a small percentage of the copyright cases on those countries' 
litigation documents.\71\
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    \70\ Session 7: Where Do We Go From Here?, 8 Geo. Mason J. Int'l 
Com. L. 142, 147 (2016) (remarks of Mira Sundara Rajan, Univ. of 
Glasgow Sch. of Law).
    \71\ See Session 1: Overview of Moral Rights, 8 Geo. Mason J. 
Int'l Com. L. 7, 15 (2016) (remarks of Daniel Gervais, Vand. Law 
Sch.).
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III. Subjects of Inquiry

    The Copyright Office seeks public comments addressing how existing 
law, including provisions found in title 17 of the U.S. Code as well as 
other federal and state laws, affords authors with effective protection 
of their rights, equivalent to those of moral rights of attribution and 
integrity.
    The Office invites written comments in particular on the subjects 
below. A party choosing to respond to this Notice of Inquiry need not 
address every subject, but the Office requests that responding parties 
clearly identify and

[[Page 7875]]

separately address each numbered subject for which a response is 
submitted.
General Questions Regarding Availability of Moral Rights in the United 
States
    1. Please comment on the means by which the United States protects 
the moral rights of authors, specifically the rights of integrity and 
attribution. Should additional moral rights protection be considered? 
If so, what specific changes should be considered by Congress?
Title 17
    2. How effective has section 106A (VARA) been in promoting and 
protecting the moral rights of authors of visual works? What, if any, 
legislative solutions to improve VARA might be advisable?
    3. How have section 1202's provisions on copyright management 
information been used to support authors' moral rights? Should Congress 
consider updates to section 1202 to strengthen moral rights 
protections? If so, in what ways?
    4. Would stronger protections for either the right of attribution 
or the right of integrity implicate the First Amendment? If so, how 
should they be reconciled?
    5. If a more explicit provision on moral rights were to be added to 
the Copyright Act, what exceptions or limitations should be considered? 
What limitations on remedies should be considered?
Other Federal and State Laws
    6. How has the Dastar decision affected moral rights protections in 
the United States? Should Congress consider legislation to address the 
impact of the Dastar decision on moral rights protection? If so, how?
    7. What impact has contract law and collective bargaining had on an 
author's ability to enforce his or her moral rights? How does the issue 
of waiver of moral rights affect transactions and other commercial, as 
well as non-commercial, dealings?
Insights From Other Countries' Implementation of Moral Rights 
Obligations
    8. How have foreign countries protected the moral rights of 
authors, including the rights of attribution and integrity? How well 
would such an approach to protecting moral rights work in the U.S. 
context?
Technological Developments
    9. How does, or could, technology be used to address, facilitate, 
or resolve challenges and problems faced by authors who want to protect 
the attribution and integrity of their works?
Other Issues
    10. Are there any voluntary initiatives that could be developed and 
taken by interested parties in the private sector to improve authors' 
means to secure and enforce their rights of attribution and integrity? 
If so, how could the government facilitate these initiatives?
    11. Please identify any pertinent issues not referenced above that 
the Copyright Office should consider in conducting its study

    Dated: January 13, 2017.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.
[FR Doc. 2017-01294 Filed 1-19-17; 8:45 am]
 BILLING CODE 1410-30-P