[Federal Register: November 24, 1999 (Volume 64, Number 226)]
[Proposed Rules]               
[Page 66139-66143]
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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 99-7]

 
Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Access Control Technologies

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of inquiry.

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SUMMARY: The Copyright Office of the Library of Congress is preparing 
to conduct proceedings to make recommendations in accordance with 
section 1201(a)(1) of the Copyright Act, 17 U.S.C. 1201(a)(1), which 
was added by the Digital Millennium Copyright Act and which provides 
that the Librarian of Congress may exempt certain classes of works from 
the prohibition against circumventing a technological measure that 
controls access to a copyrighted work. The purpose of this rulemaking 
proceeding is to determine whether there are classes of works as to 
which users are, or are likely to be, adversely affected in their 
ability to make noninfringing uses if they are prohibited from 
circumventing such technological measures. This notice requests written 
comments from all interested parties, including representatives of 
copyright owners, educational institutions, libraries and archives, 
scholars, researchers and members of the public, in order to elicit 
information and views on whether noninfringing uses of certain classes 
of works are, or are likely to be, adversely affected by such 
prohibition.

DATES: Written comments are due by February 10, 2000. Reply comments 
are due by March 13, 2000.

ADDRESSES: Submissions by electronic mail should be made to 
[email protected]''; see SUPPLEMENTARY INFORMATION section for file 
formats and other information about electronic filing. If delivered by 
hand, comments should be delivered to the Office of the General 
Counsel, Copyright Office, LM-403, James Madison Memorial Building, 101 
Independence Avenue, SE., Washington DC. If delivered by mail, comments 
should be addressed to David O. Carson, General Counsel, Copyright GC/
I&R, PO Box 70400, Southwest Station, Washington, DC 20024. See 
SUPPLEMENTARY INFORMATION section for information about formats of 
submissions.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or

[[Page 66140]]

Charlotte Douglass, Office of the General Counsel, Copyright GC/I&R, PO 
Box 70400, Southwest Station, Washington, DC 20024. Telephone (202) 
707-8380; telefax (202) 707-8366.

SUPPLEMENTARY INFORMATION:

1. Written Comments

    The Copyright Office will be placing all comments and reply 
comments that are submitted in electronic form on its Website (http://
www.loc.gov/copyright/1201). Because of this, the
Office prefers that 
comments and reply comments be submitted in electronic form, in one of 
the following formats:
    If by electronic mail: Send to [email protected]' '' a message 
containing the name of the person making the submission, his or her 
title, organization, mailing address, telephone number, telefax number 
and e-mail address. The message should also identify the document 
clearly as either a comment or reply comment. The document itself must 
be sent as a MIME attachment, and must be in a single file in either 
Adobe Portable Document File (PDF) format (preferred), or in Microsoft 
Word Version 7.0 or earlier, or in WordPerfect 7 or earlier.
    If by regular mail or hand delivery: Send, to the appropriate 
address listed above, two copies, each on a 3.5-inch write-protected 
diskette, labeled with the name of the person making the submission, 
his or her title and organization. The document itself must be in a 
single file in either Adobe Portable Document File (PDF) format 
(preferred), or in Microsoft Word Version 7.0 or earlier, or in 
WordPerfect Version 7 or earlier.
    Anyone who is unable to submit a comment in electronic form should 
submit an original and fifteen paper copies by hand or by mail to the 
appropriate address listed above. It may not be feasible for the Office 
to place these comments on its website.
    All written comments (in electronic or nonelectronic form) should 
contain the name of the person making the submission, his or her title, 
organization, mailing address, telephone number, telefax number and e-
mail address.

2. Hearings and Further Comments

    Following the receipt of reply comments, the Copyright Office will 
conduct hearings. The Office will then accept post-hearing written 
submissions that relate to matters addressed at the hearings. A hearing 
schedule will be announced in the future.

3. Mandate for Rulemaking Proceeding

    On October 28, 1998, President Clinton signed into law the Digital 
Millennium Copyright Act, Pub. L. 105-304 (1998). Section 103 
(subtitled ``Copyright Protection Systems and Copyright Management 
Information'') of Title I of the Act added a new Chapter 12 to title 17 
United States Code, which among other things prohibits circumvention of 
access control technologies employed by or on behalf of copyright 
owners to protect their works. Specifically, new subsection 
1201(a)(1)(A) provides, inter alia, that ``No person shall circumvent a 
technological measure that effectively controls access to a work 
protected under this title.'' Subparagraph (B) limits this prohibition. 
It provides that anticircumvention ``shall not apply to persons who are 
users of a copyrighted work which is in a particular class of works, if 
such persons are, or are likely to be in the succeeding 3-year period, 
adversely affected by virtue of such prohibition in their ability to 
make noninfringing uses of that particular class of works under this 
title'' as determined in this rulemaking. This prohibition on 
circumvention becomes effective two years after the date of enactment, 
on October 28, 2000.
    During the 2-year period between the enactment and effective date 
of the provision, the Librarian of Congress must make the determination 
as to classes of works exempted from the prohibition. This 
determination will be made upon the recommendation of the Register of 
Copyrights in a rulemaking proceeding. The determination thus made will 
remain in effect during the succeeding three years. In making her 
recommendation, the Register of Copyrights is to consult with the 
Assistant Secretary for Communications and Information of the 
Department of Commerce and report and comment on the Assistant 
Secretary's views. 17 U.S.C. 1201(a)(1)(C).

4. Background

    The WIPO Copyright Treaty (WCT) and the WIPO Performances and 
Phonograms Treaty (WPPT) require that Contracting Parties provide 
adequate legal protection and effective legal remedies against the 
circumvention of effective technological measures that authors (or, in 
the case of the WPPT, performers and producers of phonograms) use in 
connection with the exercise of their rights and that restrict acts 
which they have not authorized and are not permitted by law.
    In fulfillment of these treaty obligations, Title I of the Digital 
Millennium Copyright Act makes it unlawful to defeat technological 
protections used by copyright owners to protect their works in digital 
environments, adding a new Chapter 12 to title 17, United States Code. 
Specifically, subsection (a)(1) of new section 1201 applies when a 
person who is not authorized by the copyright owner to gain access to a 
work seeks to do so by circumventing a technological measure put in 
place by the copyright owner to prevent access to the work. See Staff 
of House Committee on the Judiciary, 105th Cong., Section-By-Section 
Analysis of H.R. 2281 as Passed by the United States House of 
Representatives on August 4, 1998, (hereafter House Manager's Report) 
(Representative Coble) 5 (Comm. Print 1998).
    That section provides that ``No person shall circumvent a 
technological measure that effectively controls access to a work 
protected under this title.'' 17 U.S.C. 1201(a)(1)(A) (1998). The 
relevant terms are defined:

[T]o ``circumvent a technological measure'' means to descramble a 
scrambled work, to decrypt an encrypted work, or otherwise to avoid, 
bypass, remove, deactivate, or impair a technological measure, 
without the authority of the copyright owner; and (B) a 
technological measure ``effectively controls access to a work'' if 
the measure, in the ordinary course of its operation, requires the 
application of information, or a process or a treatment, with the 
authority of the copyright owner, to gain access to the work.

17 U.S.C. 1201(a)(3).
    Congress found it appropriate to modify the prohibition to assure 
that the public will have continued ability to engage in noninfringing 
uses of copyrighted works, such as fair use. See H. R. Rep. No. 105-
551, pt. 2, at 36 (1998) (hereinafter Commerce Comm. Report). To that 
end, the statute provides that:

    The prohibition contained in subparagraph (A) shall not apply to 
persons who are users of a copyrighted work which is in a particular 
class of works, if such persons are, or are likely to be in the 
succeeding 3-year period, adversely affected by virtue of such 
prohibition in their ability to make noninfringing uses of that 
particular class of works under this title, as determined under 
subparagraph (C).

17 U.S.C. 1201(a)(1)(B).
    The prohibition against circumvention is subject to delayed 
implementation in order to permit determination whether users of 
particular classes of copyrighted works are likely to be adversely 
affected by the prohibition in their ability to make noninfringing 
uses. Within two years, upon the recommendation of the

[[Page 66141]]

Register of Copyrights in a rulemaking proceeding, the Librarian of 
Congress must determine whether to exempt certain classes of works 
(which he must identify) from the application of the anticircumvention 
prohibition due to such adverse effects.
    Subparagraph (C) of section 1201(a)(1) provides that:

    During the 2-year period described in subparagraph(A), and 
during each succeeding 3-year period, the Librarian of Congress, 
upon the recommendation of the Register of Copyrights, who shall 
consult with the Assistant Secretary for Communications and 
Information of the Department of Commerce and report and comment on 
his or her views in making such recommendation, shall make the 
determination in a rulemaking proceeding on the record for purposes 
of subparagraph (B) of whether persons who are users of a 
copyrighted work are, or are likely to be in the succeeding 3-year 
period, adversely affected by the prohibition under subparagraph (A) 
in their ability to make noninfringing uses under this title of a 
particular class of copyrighted works.

17 U.S.C. 1201(a)(1)(C).
    The Conference Report clarifies the procedure to be used in 
conducting the rulemaking:

    It is the intention of the conferees that, as is typical with 
other rulemaking under title 17, and in recognition of the expertise 
of the Copyright Office, the Register of Copyrights will conduct the 
rulemaking, including providing notice of the rulemaking, seeking 
comments from the public, consulting with the Assistant Secretary 
for Communications and Information of the Department of Commerce and 
any other agencies that are deemed appropriate, and recommending 
final regulations in the report to the Librarian.

H.R. Rep. No. 105-796, at 64 (1998).
    Thus, the Register is to conduct a rulemaking proceeding, 
soliciting public comment and consulting with the Assistant Secretary 
of Commerce for Communications and Information, and make a 
recommendation to the Librarian, who by October 28, 2000, must make a 
determination whether any classes of copyrighted works should be exempt 
from the statutory prohibition against circumvention during the three 
years commencing on that date.
    The primary responsibility of the Register and the Librarian in 
this respect is to assess whether the implementation of technological 
protection measures that effectively control access to copyrighted 
works is diminishing the ability of individuals to use copyrighted 
works in ways that are otherwise lawful. Commerce Comm. Report, at 37. 
As examples of technological protection measures in effect today, the 
Commerce Committee offered the use of ``password codes'' to control 
authorized access to computer programs, for example, or encryption or 
scrambling of cable programming, videocassettes, and CD-ROMs. Id.
    Congress intended that the Register and Librarian solicit input 
that will enable them to consider a broad range of past or likely 
future adverse impacts. Thus, this notice requests written comments 
from all interested parties, including representatives of copyright 
owners, educational institutions, libraries and archives, scholars, 
researchers and members of the public. The nature of the Librarian's 
inquiry is delineated in the statutory areas to be examined:

    (i) the availability for use of copyrighted works;
    (ii) the availability for use of works for nonprofit archival, 
preservation, and educational purposes;
    (iii) the impact that the prohibition on the circumvention of 
technological measures applied to copyrighted works has on 
criticism, comment, news reporting, teaching, scholarship, or 
research;
    (iv) the effect of circumvention of technological measures on 
the market for or value of copyrighted works; and
    (v) such other factors as the Librarian considers appropriate.

17 U.S.C. 1201(a)(1)(C).

Substantial Effect on Use

    It is clear from the legislative history that a determination to 
exempt a class of works from the prohibition on circumvention must be 
based on a determination that the prohibition has a substantial adverse 
effect on noninfringing use of that particular class of works. The 
Commerce Committee noted that the rulemaking proceeding is to focus on 
``distinct, verifiable, and measurable impacts, and should not be based 
upon de minimis impacts.'' Commerce Comm. Report, at 37. Similarly, the 
Manager's Report stated that ``[t]he focus of the rulemaking proceeding 
must remain on whether the prohibition on circumvention of 
technological protection measures (such as encryption or scrambling) 
has caused any substantial adverse impact on the ability of users to 
make non-infringing uses,'' and suggested that ``mere inconveniences, 
or individual cases * * * do not rise to the level of a substantial 
adverse impact.'' House Manager's Report, at 6.

Causal Connection

    The legislative history also requires the Register and Librarian to 
disregard any adverse effects that are caused by factors other than the 
prohibition against circumvention. The House Manager's Report is 
instructive:

    The focus of the rulemaking proceeding must remain on whether 
the prohibition on circumvention of technological protection 
measures (such as encryption or scrambling) has caused any 
substantial adverse impact on the ability of users to make non-
infringing uses. Adverse impacts that flow from other sources * * * 
or that are not clearly attributable to such a prohibition, are 
outside the scope of the rulemaking.

House Manager's Report, at 6. The House Commerce Committee came to a 
similar conclusion: ``Adverse impacts that flow from other sources, or 
that are not clearly attributable to implementation of a technological 
protection measure, are outside the scope of the rulemaking.'' Commerce 
Comm. Report, at 37.
    Some technological protection measures may mitigate adverse 
effects. Along those lines, the Librarian must also seek information 
about positive impacts of technological access control measures. The 
House Manager's Report notes that:

    In assessing the impact of the implementation of technological 
measures, and of the law against their circumvention, the rule-
making proceedings should consider the positive as well as the 
adverse effects of these technologies on the availability of 
copyrighted materials. The technological measures--such as 
encryption, scrambling, and electronic envelopes--that this bill 
protects can be deployed, not only to prevent piracy and other 
economically harmful unauthorized uses of copyrighted materials, but 
also to support new ways of disseminating copyrighted materials to 
users, and to safeguard the availability of legitimate uses of those 
materials by individuals.

House Manager's Report, at 6.
    Another mitigating factor may arise when a work as to which the 
copyright owner has instituted a technological control is also 
available in formats that are not subject to technological protections. 
For example, a work may be available in electronic format only in 
encrypted form, but may also be available in traditional hard copy 
format which has no such technological restrictions on access. The 
availability without restriction in the latter format may alleviate any 
adverse effect that would otherwise result from the technological 
controls utilized in the electronic format. The Librarian is to 
consider the availability of works in such other formats. Id. at 7.
    The requirements that proponents of an exemption demonstrate both 
causality and substantial adverse effects on noninfringing uses also 
apply to the determination whether users of works ``are likely to be'' 
affected adversely in the three years following the conclusion of the 
rulemaking. Proponents who are unable to satisfy those burdens in the

[[Page 66142]]

current rulemaking will have the opportunity to make their cases in 
each of the triennial proceedings that will succeed it.

Scope of ``Class of Copyrighted Works''

    A major consideration is to determine how to define the scope of 
boundaries of a ``particular class'' of copyrighted works. This inquiry 
seeks to elicit information to assist the Librarian in addressing that 
ultimate question.
    The House Manager's Report advises that the scope of ``class of 
works'' is narrower than the category of works set forth in 17 U.S.C. 
102(a). For example, it notes that within the category of literary 
works, one finds prose journals, periodicals, and books as well as 
computer programs, and concludes that it is unlikely that the impact on 
prohibiting circumvention of access control technologies will be the 
same for scientific journals as it is for computer operating systems. 
Therefore, all of these types of literary works most likely would not 
fall within the same class of works for purposes of this section 
1201(a)(1)(A) determination. Id. at 7. The Commerce Committee Report 
concurs that ``the `particular class of copyrighted works' (should) be 
a narrow and focused subset of the broad categories of works of 
authorship than is (sic) identified in Section 102 of the Copyright Act 
(17 U.S.C. 102).'' Commerce Comm. Report, at 38.
    Nevertheless, the Judiciary Committee cautioned against drawing the 
categories too narrowly, as would be its conclusion if, for example, 
particular genres of motion pictures were to be divided into thematic 
categories such as Westerns, comedies or live action dramas. House 
Manager's Report, at 7.

5. Specific Questions

    The Office seeks comment on the following specific questions. 
Persons submitting comments need not address all questions, but are 
encouraged to respond to those as to which they have particular 
knowledge or information. Persons submitting comments are encouraged to 
submit concrete evidence, examples and data supporting their responses 
to these questions. Such submissions will carry greater weight than 
unsupported allegations and predictions.
    In response to each question, persons submitting comments are 
requested to distinguish between (a) their response with respect to the 
current state of affairs, and (b) their response with respect to the 
state of affairs that is likely to exist during the period between 
October 28, 2000 and October 28, 2003. For example, in responding to 
Question No. 3, persons submitting comments are requested to state (a) 
what technological measures that effectively control access to 
copyrighted works exist today, and (b) what new technological measures 
that effectively control access to copyrighted works are likely to be 
introduced between October 28, 2000 and October 28, 2003. In discussing 
the state of affairs that is likely to exist during the period between 
October 28, 2000 and October 28, 2003, persons submitting comments 
should explain the basis for their projections.

A. Technological Measures

    1. What technological measures that effectively control access to 
copyrighted works exist today?
    2. Do different technological measures have different effects on 
the ability of users to make noninfringing uses? Can and should the 
Librarian take account of those different effects in determining 
whether to exempt any classes of works from the anticircumvention 
provisions of section 1201? If so, how? In determining what constitutes 
a class of works?

B. Availability of Works

    3. How has the use of technological measures that effectively 
control access to copyrighted works affected the availability of such 
works to persons who are or desire to be lawful users of such works?
    4. Are there specific works or classes of works that, because of 
the implementation of such technological measures, have become 
unavailable to persons who desire to be lawful users of such works? If 
so, identify those works or classes of works and explain how they have 
become unavailable.
    5. Are there specific works or classes of works which, because of 
the implementation of such technological measures, have become less 
available to persons who desire to be lawful users of such works? If 
so, identify those works or classes of works, explain the ways in which 
they have become less available, and explain whether those works or 
classes of works are also available in other formats to which such 
technological measures have not been applied.
    6. If there are works that are available both in formats to which 
technological measures have been applied and in formats to which 
technological measures have not been applied, to what extent can the 
works in the latter formats substitute for the works in the formats to 
which technological measures have been applied?
    7. Are there works or classes of works that are available only 
electronically and only in formats to which such technological measures 
have been applied? If so, what are they?

C. Availability of Works for Nonprofit Archival, Preservation, and 
Educational Purposes

    8. Has the use of technological measures that effectively control 
access to copyrighted works affected the availability of such works for 
nonprofit archival purposes? If so, how? Are there specific works or 
classes of works that have been affected in this respect? If so, 
identify them, explain how they have been affected, and explain whether 
those works or classes of works are also available in other formats to 
which such technological measures have not been applied.
    9. Has the use of technological measures that effectively control 
access to copyrighted works created problems with respect to the 
preservation of such works? If so, how? Are there specific works or 
classes of works that have been affected in this respect? If so, 
identify them and explain how they have been affected.
    10. Has the use of technological measures that effectively control 
access to copyrighted works affected the availability of such works for 
nonprofit educational purposes? If so, how? Are there specific works or 
classes of works that have been affected in this respect? If so, 
identify them, explain how they have been affected, and explain whether 
those works or classes of works are also available in other formats to 
which such technological measures have not been applied.
    11. For purposes of this rulemaking, in classifying works that are 
to be exempted from the prohibition against circumvention of 
technological measures that control access, should any classes of works 
be defined, in part, based on whether the works are being used for 
nonprofit archival, preservation, and/or educational purposes? (E.g., 
``new broadcasts'' may not be an exempted class of works, but ``news 
broadcasts used in the course of face-to-face teaching activities of a 
nonprofit educational institution, in a classroom or similar place of 
instruction,'' may be an exempted class.) Explain why or why not.

D. Impact on Criticism, Comment, News Reporting, Teaching, Scholarship, 
or Research

    12. What impact has the use of technological measures that 
effectively control access to copyrighted works had on the ability of 
interested persons to engage in criticism, comment, news

[[Page 66143]]

reporting, teaching, scholarship, or research?
    13. What impact has the use of technological measures that 
effectively control access to copyrighted works had on the ability of 
interested persons to engage in noninfringing uses of such works, 
including fair use and activities permitted by exemptions prescribed by 
law?
    14. Are there specific works or classes of works with respect to 
which the ability of interested persons to engage in criticism, 
comment, news reporting, teaching, scholarship, or research has been 
hindered because of the implementation of such technological measures? 
If so, identify them, explain how such activities have been hindered, 
and explain whether those works or classes of works are also available 
in other formats to which such technological measures have not been 
applied.
    15. Are there specific works or classes of works with respect to 
which the ability of interested persons to engage in noninfringing uses 
has been hindered because of the implementation of such technological 
measures? If so, identify them, explain how such activities have been 
hindered, and explain whether those works or classes of works are also 
available in other formats to which such technological measures have 
not been applied.
    16. For purposes of this rulemaking, in classifying works that are 
to be exempted from the prohibition against circumvention of 
technological measures that control access, should any classes of works 
be defined, in part, based on whether the works are being used for 
purposes of criticism, comment, news reporting, teaching, scholarship, 
or research? Explain why or why not.
    17. For purposes of this rulemaking, in classifying works that are 
to be exempted from the prohibition against circumvention of 
technological measures that control access, should any classes of works 
be defined, in part, based on whether the works are being used in ways 
that do not constitute copyright infringement, e.g., as fair use or in 
a manner permitted by exemptions prescribed by law? Explain why or why 
not.

E. Effect of Circumvention on the Market for or Value of Copyrighted 
Works

    18. In what ways can technological measures that effectively 
control access to copyrighted works be circumvented? How widespread is 
such circumvention?
    19. Has such circumvention (or the likelihood of circumvention) had 
any impact on the price of copyrighted works? Please explain.
    20. Has such circumvention (or the likelihood of circumvention) had 
any impact on the availability of copyrighted works? In particular 
formats or in all formats? Please explain.
    21. Has such circumvention had any other impact on the marketing of 
copyrighted works? If so, please explain the impact and which works or 
classes of works have been affected.
    22. Do the answers to any of these questions relating to the effect 
of circumvention on the market for or value of copyrighted works depend 
upon the class of work? Please explain.

F. Other Factors and Questions

    23. For purposes of this rulemaking, what criteria should be used 
in determining what is a ``class'' of copyrighted works?
    24. With respect to any adverse effect on use of or access to 
copyrighted works that has been identified in response to any of the 
preceding questions, is there an explanation for the adverse effect 
other than the presence of technological measures that effectively 
control access to copyrighted works?
    25. Has the use of technological measures that effectively control 
access to copyrighted works resulted in making copyrighted works more 
widely available? Please explain.
    26. Has the use of technological measures that effectively control 
access to copyrighted works resulted in facilitating lawful uses of 
copyrighted works?
    27. Are there other factors that should be taken into account? If 
so, please identify and address those factors.
    28. What other comments, if any, do you have?
    29. Do you wish to testify at a hearing to be conducted by the 
Copyright Office in connection with this rulemaking?

    Dated: November 15, 1999.
Marybeth Peters,
Register of Copyrights.
    Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 99-30556 Filed 11-23-99; 8:45 am]
BILLING CODE 1410-30-P