[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Notices]
[Pages 72638-72640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27705]


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LIBRARY OF CONGRESS

 Copyright Office

[Docket No. 2021-10]


Technical Measures: Public Consultations

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

ACTION: Notification of inquiry: Public consultations.

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SUMMARY: The U.S. Copyright Office is announcing a series of 
consultations on technical measures to identify or protect copyrighted 
works online. The Office plans to hold a plenary session to launch 
consultations on this issue on February 22, 2022, to be followed by 
smaller sectoral consultations thereafter. To aid in this effort, the 
Office also is seeking public input on a number of questions.

DATES: Written statements of interest to participate in the 
consultations, along with a response to at least one of the questions 
in this notice, must be received no later than 11:59 p.m. Eastern Time 
on February 8, 2022. Written comments may be made for the record 
without expectation of participating in the consultations by that same 
deadline. The Office is planning to hold the plenary consultation via 
Zoom on February 22, 2022. The Office also plans to hold February 23, 
2022 as a possible second day for plenary consultations, if needed. 
Subsequent industry-sector specific consultations will be announced at 
a later date via https://www.copyright.gov/policy/technical-measures/.

ADDRESSES: For reasons of governmental efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public submissions in this proceeding. All submissions are therefore to 
be submitted electronically through regulations.gov. Specific 
instructions for submitting comments and statements of interest are 
available on the Copyright Office's website at https://www.copyright.gov/policy/technical-measures/. If electronic submission 
of comments or statements of interest 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: Emily Lanza, Counsel for Policy and 
International Affairs, by email at [email protected], or Jen[eacute]e 
Iyer, Counsel for Policy and International Affairs, by email at 
[email protected]. They can each be reached by telephone at 202-707-
8350.

SUPPLEMENTARY INFORMATION:

I. Background

    The U.S. Copyright Office's 2020 Report, Section 512 of Title 17 
(``Section 512 Report''), acknowledged the important role that 
technologies and technical measures can play in addressing internet 
piracy. While the infringement of copyrighted material online has 
evolved alongside technological developments, stakeholders have engaged 
in a range of voluntary collaborations and developed a number of 
technical measures that supplement the legislative notice-and-takedown 
framework.\1\
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    \1\ See U.S. Copyright Office, Section 512 of Title 17 27-47 
(2020) (``Section 512 Report''), https://www.copyright.gov/policy/section512/section-512-full-report.pdf.
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    In a letter dated June 24, 2021, Senators Patrick Leahy and Thom 
Tillis requested that the Copyright Office ``convene a representative 
working group of relevant stakeholders to achieve the identification 
and implementation of technical measures.'' \2\ The Senators emphasized 
that they continue to believe, as the Senate Judiciary Committee noted 
more than twenty years ago with the passage of the Digital Millennium 
Copyright Act, ``that voluntary technology is likely to be the solution 
to many of the issues facing copyright owners and service providers.'' 
\3\
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    \2\ Letter from Sens. Thom Tillis & Patrick Leahy to Register 
Shira Perlmutter at 2 (June 24, 2021) (``Request Letter'').
    \3\ Id.
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    The Office is now announcing that it will convene a series of 
consultations on technical measures for identifying or protecting 
copyrighted works online.

[[Page 72639]]

    Over the past decade or so, rightsholders across industries have 
developed and employed various technical measures to assist with the 
protection of their works. For example, the implementation of digital 
fingerprinting allows rightsholders to negotiate with service providers 
specific responses once an exact match to a fingerprint has been 
identified.\4\ Similarly, rightsholders have utilized digital 
watermarks, standard identifiers, and other tools to facilitate the use 
of their works, including downstream uses, while maintaining 
attribution and other copyright management information.\5\
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    \4\ See Intellectual Property Owners Association, Comments 
Submitted in Response to U.S. Copyright Office's Dec. 31, 2015, 
Notice of Inquiry at 7 (Apr. 1, 2016).
    \5\ See generally U.S. Copyright Office, Authors, Attribution, 
and Integrity: Examining Moral Rights in the United States 87-88 
(2019), https://copyright.gov/policy/moralrights/full-report.pdf 
(discussing digital attribution in the context of section 1202 
protections).
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    Some technical measures to identify and protect copyrighted works 
online have been developed and deployed by or for online service 
providers and other stakeholders. \6\ Proprietary systems used 
internally by platforms to identify and filter potentially infringing 
uploaded material include Scribd's BookID,\7\ Dropbox's unique 
identifier system,\8\ and YouTube's ContentID. YouTube's ContentID 
program, for example, scans videos that are uploaded to YouTube against 
a database of files that have been submitted by copyright owners 
participating in the program. When a match is made, the owner is 
notified and has the option to block the video from being viewed, 
monetize it by running advertisements, or track its viewership 
statistics.\9\ Examples of broadly-available technical measures include 
filtering technologies like Audible Magic, universal data formats, and 
registries like the Picture Licensing Universal System (PLUS).\10\ 
Audible Magic's filtering technology, which uses Automatic Content 
Recognition to match uploaded audio and video files against files 
registered with its database, operates similarly to ContentID but is 
broadly available for licensing by online platforms.\11\
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    \6\ Stakeholders have also collaborated in developing voluntary 
measures and best practices to address online infringement. 
Advertising networks and payment processors, for example, have 
implemented best practices to cut off payments and advertising 
revenues for web services offering infringing material. See, e.g., 
Anti-Piracy Policy, Mastercard, https://www.mastercard.us/en-us/vision/who-we-are/terms-of-use/anti-piracy-policy.html (last visited 
Dec. 10, 2021). More formal agreements across industry sectors, like 
the RogueBlock program and domain name registry ``Trusted Notifier'' 
programs, have facilitated collaborative programs to address online 
piracy. See Section 512 Study at 39-41; IACC RogueBlock, IACC, 
http://www.iacc.org/online-initiatives/rogueblock; Press Release, 
Motion Picture Association of America, Inc., Donuts and the MPAA 
Establish New Partnership to Reduce Online Piracy (Feb. 9, 2016), 
https://www.mpaa.org/wp-content/uploads/2016/02/Donuts-and-MPAA-Establish-New-Partnership-2.9.16.pdf. Similar voluntary initiatives 
to address online piracy have been adopted in the United Kingdom and 
European Union; for example, in June 2018, content industries, 
service providers, advertising bodies, and other stakeholder groups 
signed the European Commission's Memorandum of Understanding on 
Online Advertising and IPR to limit advertising on websites that 
infringe copyrights or disseminate counterfeit goods. See Eur. 
Commission, Memorandum of Understanding on online advertising and 
IPR (2018), reposted at https://ec.europa.eu/docsroom/documents/30226.
    \7\ Scribd, a service that provides access to literary works and 
allows users to self-publish, has established BookID to filter 
uploaded works. BookID, Scribd, https://www.scribd.com/copyright/bookid.
    \8\ Dropbox utilizes a different approach. Upon receiving a 
takedown notice and disabling access to the file, Dropbox adds the 
file's unique identifier, or hash, to a blacklist. If a user 
attempts to share a file with the same hash, it is blocked. See Greg 
Kumparak, How Dropbox Knows When You're Sharing Copyrighted Stuff 
(Without Actually Looking at Your Stuff), TechCrunch (Mar. 30, 2014, 
4:38 p.m.), https://techcrunch.com/2014/03/30/how-dropbox-knows-when-youre-sharing-copyrighted-stuff-without-actually-looking-at-your-stuff/.
    \9\ See How Content ID Works, YouTube Help, https://support.google.com/youtube/answer/2797370.
    \10\ The System: What is PLUS?, PLUS, https://www.useplus.com/aboutplus/system.asp.
    \11\ If there is a match, the database relays to the platform 
owner information and rules specifying how the rightsholder wants 
the file to be used. See Technology, AudibleMagic, https://www.audiblemagic.com/technology/.
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    While these collaborations and technical measures may constitute 
reasonable, effective, and flexible approaches to curbing online 
infringement, as the Office noted in its Section 512 Report, their 
strictly voluntary nature presents inherent limitations.\12\ The 
absence of comprehensive coverage and the exclusion of certain 
stakeholder interests during the development stages could hinder a 
measure's sustainable success. One commenter to the Section 512 Study 
noted that ``voluntary initiatives can create potential for . . . 
disadvantaging those who are not involved in the relevant discussions 
or parties to the ultimate agreement, including the public, creators 
and providers of innovative new services.'' \13\ The Office therefore 
recommended in the Section 512 Report that a ``key feature of any 
future voluntary measure should . . . involve cooperation among 
rightsholder organizations, all sizes of OSPs, individual creators, and 
users.'' \14\ In addition to inclusivity, the Office also emphasized 
the importance of flexibility, accountability, and comprehensive 
reporting.\15\
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    \12\ See Section 512 Report at 173-74.
    \13\ Independent Film & Television Alliance, Comments Submitted 
in Response to the U.S. Copyright Office's Dec. 31, 2015, Notice of 
Inquiry at 11 (Apr. 1, 2016).
    \14\ Section 512 Report at 174-75.
    \15\ See id. at 175.
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II. Consultations

    The consultations will address current and forthcoming technologies 
for identifying or protecting works online, including the technologies' 
availability, their use-cases, and their limitations. These 
consultations on the voluntary identification and implementation of 
technical measures are separate from the Office's forthcoming notice of 
inquiry on Standard Technical Measures (``STMs''), which will focus 
specifically on the interpretation of section 512(i) of the DMCA, 17 
U.S.C. 512(i), and the definition and identification of STMs within the 
scope of the statute.
    The consultations will consist of one plenary session and a series 
of smaller, industry-sector specific sessions. The plenary session will 
occur on February 22, 2022. If a sufficient number of participants 
appear, the Office will divide the plenary session into multiple 
breakout rooms. The plenary session, whether it proceeds in one room or 
several, will be viewable to the public.
    Based on the responses received to this notice and the outcome of 
the plenary session, the Office will identify specific industry-sector 
based groups that will form the basis for the smaller sessions to 
follow. Schedules may be adjusted as needed by the Copyright Office, 
with advance notice given to the participants. At the current time, we 
anticipate this process continuing through late Spring 2022.
    Members of the public who seek to participate in the consultations 
should submit, via regulations.gov, a written statement of interest 
answering at least one of the questions listed in section III below. 
The Copyright Office strongly encourages participation by individuals 
with experience currently using or developing relevant technologies. 
Both the plenary and industry-sector based sessions will be held 
virtually over Zoom.
    The Office will notify participants of their assigned industry-
sector based session not later than one week after the plenary session 
is held. The Office appreciates the flexibility of potential 
participants.
    The Office will be inviting other government agencies, including 
but not

[[Page 72640]]

limited to the National Telecommunications and Information Agency 
(NTIA), the National Institute of Standards and Technology (NIST), and 
the U.S. Patent and Trademark Office (USPTO), to participate in the 
consultations and provide technical and operational input, as requested 
by Senators Leahy and Tillis.\16\
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    \16\ Request Letter at 2.
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III. Statement of Interest Questions

    Below are questions to consider ahead of the plenary session, as 
these topics will underlie the discussions. To aid in the discussion, 
several of the questions focus on particular categories of actors. The 
Office recognizes that individuals and entities at any given time might 
be acting as rightsholders, intermediaries, or users. Please provide an 
answer to at least one of these questions in your written statement of 
interest to participate in the consultations in order to assist in 
effectively organizing these consultations. For those who do not wish 
to participate in the consultations, the Office will also accept, by 
the date above, written comments for the record responding to at least 
one of the questions below.
    1. Rightsholders: Please identify any technical measures currently 
used or in development by you, your organization, company, industry, or 
sector to identify or protect copyrighted works online. How do these 
technical measures affect your ability to protect your copyrighted 
works online?
    2. Online service providers: Please identify any technical measures 
currently used or in development by your organization, company, 
industry, or sector to identify or protect copyrighted works online. 
How do these technical measures affect your ability to provide services 
to your users?
    3. Users: How are you, or your organization, company, industry, or 
sector affected by technologies implemented by rightsholders and 
service providers to identify or protect copyrighted works online?
    4. To what extent are any of these technical measures being adopted 
or discussed as part of any within-industry or cross-industry 
endeavors, initiatives, or agreement(s)?
    5. Are there any other processes that are ongoing for identifying 
voluntary solutions or to identify and implement technical measures? 
Are there alternative processes, other than those that may currently be 
in place, that would better identify and implement technical measures? 
Please be specific, as different technical measures may have different 
solutions in different industry sectors.
    6. To what extent would the adoption and broad implementation of 
existing or future technical measures by stakeholders, including online 
service providers and rightsholders, be likely to assist in addressing 
the problem of online copyright piracy? What are the obstacles to 
adopting and broadly implementing such existing or future technical 
measures? Would the adoption and broad implementation of such existing 
or future technical measures have negative effects? If so, what would 
be the effects, and who would be affected?
    7. Is there a role for government to play in identifying, 
developing, cataloging, or communicating about existing or future 
technical measures for identifying or protecting copyrighted works 
online? Can the government facilitate the adoption or implementation of 
technical measures, and if so, how? Are there technical measures or 
other standards used to protect copyrighted works online of which the 
government should be aware when implementing statutory or regulatory 
provisions, such as requirements for procurement, grants, or required 
data inventories?
    8. Please identify any other pertinent issues not referenced above 
that the Copyright Office should consider in these consultations.
    For both comments and statements of interest, please indicate which 
question(s) above you are answering in your submission. For those who 
wish to participate in the consultations, please also indicate your 
organization's request to participate in the consultations in the 
written statement of interest and identify the individual (name, title, 
contact information) who will be participating in the plenary and 
industry-sector based sessions.

    Dated: December 16, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
[FR Doc. 2021-27705 Filed 12-21-21; 8:45 am]
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