[Federal Register: October 24, 2000 (Volume 65, Number 206)]
[Notices]               
[Page 63626-63628]
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LIBRARY OF CONGRESS

Copyright Office

DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

[Docket No. 000522150-0287-02]
RIN No. 0660-ZA13

 
Report to Congress Pursuant to Section 104 of the Digital 
Millennium Copyright Act


AGENCIES: The United States Copyright Office, Library of Congress; and 
the National Telecommunications and Information Administration, United 
States Department of Commerce.


ACTION: Notice of public hearing.

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SUMMARY: The United States Copyright Office and the National 
Telecommunications and Information Administration announce a public 
hearing on the effects of the amendments made by title 1 of the Digital 
Millennium Copyright Act, (``DMCA'') and the development of electronic 
commerce on the operation of sections 109 and 117 of title 17, United 
States Code, and the relationship between existing and emerging 
technology and the operation of such sections.


DATES: The public hearing will be held in Washington, DC on Wednesday, 
November 29, 2000, from 9:30 a.m. to 5 p.m. Requests to testify must be 
received by the Copyright Office and the National Telecommunications 
and Information Administration by 5:00 p.m. E.S.T. on November 24, 
2000, and accompanied by a one page summary of the intended testimony.


ADDRESSES: The public hearing will be held at the Library of Congress, 
James Madison Building, 101 Independence Avenue, SE., Washington, DC 
20540, Room LM-414. Any member of the public wishing to attend and 
requiring special services, such as sign language interpretation or 
other ancillary aids, should contact the Library of Congress or the 
National Telecommunications and Information Administration at least 
five (5) working days prior to the hearing by telephone or electronic 
mail at the respective contact points listed immediately below.

FOR FURTHER INFORMATION CONTACT: Jesse M. Feder or Marla Poor, Office 
of Policy and International Affairs, U.S. Copyright Office, Library of 
Congress (202) 707-8350; or Jeffrey E.M. Joyner, National 
Telecommunications and Information Administration (202) 482-1816. E-
mail inquiries regarding the hearings may be sent to [email protected], 
[email protected], or [email protected]

SUPPLEMENTARY INFORMATION: On June 5, 2000, the Copyright Office and 
the National Telecommunications and Information Administration 
published a Notice of Inquiry seeking comments in connection with the 
effects of the amendments made by title 1 of the DMCA and the 
development of electronic commerce on the operation of sections 109 and 
117 of title 17, United States Code, and the relationship between 
existing and emerging technology and the operation of such sections. 65 
FR 35673 (June 5, 2000). That Federal Register Notice was intended to 
solicit comments from interested parties on those issues. For a more 
complete statement of the background and purpose of the inquiry, please 
see the Notice of Inquiry which is available on the Copyright Office's 
website at: http://www.copyright.gov/fedreg/65fr35673.html.
    In response to the Notice of Inquiry, the Copyright Office and the 
National Telecommunications and Information Administration received 30 
initial written comments and 16 replies (to the initial comments) that 
conformed to the requirements set forth in the Notice of Inquiry. The 
comments and replies have been posted on the Office's website; see 
http://www.copyright.gov/reports/studies/dmca/comments/ and http://
www.copyright.gov/reports/studies/dmca/reply/, respectively.
    Requirements for persons desiring to testify: A request to testify 
must be submitted in writing to the Copyright Office and to the 
National Telecommunications and Information Administration. All 
requests to testify must include:
     The name of the person desiring to testify;
     The organization or organizations represented by that 
person, if any;
     Contact information (address, telephone, and e-mail); and
     A one page summary of the intended testimony.
    This request may be submitted in electronic form. The Copyright 
Office and the National Telecommunications and Information 
Administration will notify all persons wishing to testify of the 
expected time of their appearance, and the maximum time allowed for 
their testimony.
    All requests to testify must be received by 5 E.S.T. on November 
24, 2000.
    Time limits on testimony at public hearings: There will be time 
limits on the testimony allowed for speakers. The time limits will 
depend on the number of persons wishing to testify. Approximately one 
week prior to the hearings, the Copyright Office and the National 
Telecommunications and Information Administration will notify all 
persons submitting requests to testify of the precise time limits that 
will be imposed on oral testimony. Due to the time constraints, the 
Copyright Office and the National Telecommunications and Information 
Administration encourage parties with similar interests to select a 
single spokesperson to testify.
    File Formats: Requests to testify may be submitted in electronic 
form in one of the following formats:
    1. If by electronic mail: Send to [email protected]'' and 
[email protected]'' a message containing the name of the person

[[Page 63627]]

requesting to testify, his or her title and organization (if the 
submission is on behalf of an organization), mailing address, telephone 
number, telefax number (if any) and e-mail address. The message should 
also identify the document clearly as a request to testify. The one 
page summary of the intended testimony must be sent as a MIME 
attachment, and must be in a single file in either: (1) Microsoft Word 
Version 7.0 or earlier; (2) WordPerfect 7 or earlier; (3) Rich Text 
File (RTF) format; or (4) ASCII text file format.
    2. If by regular mail or hand delivery: Send to Jesse M. Feder, 
Policy Planning Advisor, Office of Policy and International Affairs, 
U.S. Copyright Office, Copyright GC/I&R, P.O. Box 70400, Southwest 
Station, Washington, DC 20024; and to Jeffrey E.M. Joyner, Senior 
Counsel, Office of Chief Counsel, National Telecommunications and 
Information Administration (NTIA), Room 4713, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230. Please include two copies of the one page summary of the 
intended testimony, each on a 3.5-inch write-protected diskette, 
labeled with the name of the person making the submission and, if 
applicable, his or her title and organization. Either the document 
itself or a cover letter must also identify the document clearly as a 
request to testify and include the name of the person making the 
submission, his or her title and organization (if the submission is on 
behalf of an organization), mailing address, telephone number, telefax 
number (if any) and e-mail address (if any). The document itself must 
be in a single file in either (1) Microsoft Word Version 7.0 or 
earlier; (2) WordPerfect Version 7 or earlier; (3) Rich Text File (RTF) 
format; or (4) ASCII text file format.
    Background: On October 28, 1998, the DMCA was enacted into law 
(Pub. L. No. 105-304, 112 Stat. 2860). Section 104 of the DMCA directs 
the Register of Copyrights and the Assistant Secretary for 
Communications and Information of the Department of Commerce to submit 
to the Congress no later than 24 months after the date of enactment a 
report evaluating the effects of the amendments made by title 1 of the 
Act and the development of electronic commerce and associated 
technology on the operation of sections 109 and 117 of title 17, United 
States Code, and the relationship between existing and emerging 
technology and the operation of those sections.
    The objective of title I of the DMCA was to revise U.S. law to 
comply with two World Intellectual Property Organization (WIPO) 
Treaties that were concluded in 1996 and to strengthen protection for 
copyrighted works in electronic formats. The DMCA establishes 
prohibitions on the act of circumventing technological measures that 
effectively control access to a work protected under the U.S. Copyright 
Act, and the manufacture, importation, offering to the public, 
providing or otherwise trafficking in any technology, product, service, 
device, component or part thereof which is primarily designed or 
produced to circumvent a technological measure that effectively 
controls access to or unauthorized copying of a work protected by 
copyright, has only a limited commercially significant purpose or use 
other than circumvention of such measures, or is marketed for use in 
circumventing such measures. The DMCA also makes it illegal for a 
person to manufacture, import, offer to the public, provide, or 
otherwise traffic in any technology, product, service, device, 
component or part thereof which is primarily designed or produced to 
circumvent a technological measure that effectively protects a right of 
a copyright owner in a work protected by copyright, has only a limited 
commercially significant purpose or use other than circumvention of 
such measures, or is marketed for use in circumventing such measures. 
In addition the DMCA prohibits, among other actions, intentional 
removal or alteration of copyright management information and knowing 
addition of false copyright management information if these acts are 
done with intent to induce, enable, facilitate or conceal a copyright 
infringement. Each prohibition is subject to a number of statutory 
exceptions.
    Section 109 of the Copyright Act, 17 U.S.C. 109, permits the owner 
of a particular copy or phonorecord lawfully made under title 17 to 
sell or otherwise dispose of possession of that copy or phonorecord 
without the authority of the copyright owner, notwithstanding the 
copyright owner's exclusive right of distribution under 17 U.S.C. 
106(3). Commonly referred to as the ``first sale doctrine,'' this 
provision permits such activities as the sale of used books. The first 
sale doctrine is subject to limitations that permit a copyright owner 
to prevent the unauthorized commercial rental of computer programs and 
sound recordings.
    Section 117 of the Copyright Act, 17 U.S.C. 117, permits the owner 
of a copy of a computer program to make a copy or adaptation of the 
program for archival purposes or as an essential step in the 
utilization of the program in conjunction with a machine. In addition, 
pursuant to an amendment contained in title III of the DMCA, section 
117 permits the owner or lessee of a machine to make a temporary copy 
of a computer program if such copy is made solely by virtue of the 
activation of a machine that lawfully contains an authorized copy of 
the computer program, for purposes of maintenance or repair of that 
machine.
    Specific Questions: The principal purpose of the hearing is to 
inquire into points made in the written comments submitted in this 
proceeding, and not to raise new issues for the first time. 
Specifically, the public hearing will (and therefore the one page 
summary of intended testimony must) focus on the following questions:
     What are the policy justifications for or against an 
amendment to Section 109 to include digital transmissions, and what 
specific facts can you provide to support your position? What problems 
would an amendment to Section 109 address? What problems would an 
amendment to Section 109 not address? What problems would an amendment 
to Section 109 create? What problems would be averted by leaving this 
section unchanged? What would be the likely impact on authors and other 
copyright owners of an amendment to Section 109 modeled on Section 4 of 
H.R. 3048, 105th Cong., 1st Sess. (1997), and what is the basis for 
your assessment?
     Please explain in detail the impact an amendment to 
Section 109 to include digital transmissions would have on the 
following activities of libraries with respect to works in digital 
form: (1) Interlibrary lending; (2) use of works outside the physical 
confines of a library; (3) preservation and (4) receipt and use of 
donated materials. To what extent would an amendment to section 109 
fail to have an impact on these activities? Please explain whether and 
how these activities should and can be accommodated by means other than 
amendment of Section 109?
     What are the policy justifications for or against an 
exemption to permit the making of temporary digital copies of works 
that are incidental to the operation of a device in the course of a 
lawful use of a work, and what specific facts can you provide to 
support how such an exemption could further or hinder electronic 
commerce and Internet growth? What problems would it address and what 
problems would a broad exemption not address? What problems would such 
an exemption create? How would your assessment differ if an exemption 
were limited to

[[Page 63628]]

temporary digital copies of works that are incidental to the operation 
of a device in the course of an authorized use of the work?
     What are the policy justifications for or against an 
expansion to the archival copy exception in section 117 to cover works 
other than computer programs, and what specific facts can you provide 
to support for your view? Would such an expansion of section 117 
further or hinder electronic commerce and Internet growth? What 
problems would such a statutory change address and not address? What 
problems would such an expansion create?
     What are the policy justifications for or against 
expressly limiting the archival copy exception in section 117 to cover 
only those copies that are susceptible to destruction or damage by 
mechanical or electrical failure? What problems would such a statutory 
change address and not address? What problems would such a change 
create?

Marybeth Peters,
Register of Copyrights, United States Copyright Office.

Kathy D. Smith,
Chief Counsel, National Telecommunications and Information 
Administration.
[FR Doc. 00-27293 Filed 10-23-00; 8:45 am]
BILLING CODE 1410-30-P