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Copyright Office 2012 DMCA Anti-Circumvention Exemptions Rulemaking Final Rule

Copyright Office 2012 DMCA Anti-Circumvention Exemptions Rulemaking Final Rule

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65260
Federal Register
/Vol. 77, No. 208/Friday, October 26, 2012/Rules and Regulations
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[FR Doc. 2012–26334 Filed 10–25–12; 8:45 am]
BILLING CODE 4910–13–P
LIBRARY OF CONGRESSCopyright Office37 CFR Part 201
[Docket No. 2011–7]
Exemption to Prohibition onCircumvention of Copyright ProtectionSystems for Access ControlTechnologies
AGENCY
:
Copyright Office, Library of Congress.
ACTION
:
Final rule.
SUMMARY
:
Having duly considered andaccepted the Recommendation of theRegister of Copyrights that theprohibition against circumvention of technological measures that effectivelycontrol access to copyrighted worksshall not apply to persons who engagein noninfringing uses of certain classesof copyrighted works, the Librarian of Congress is exercising his authority topublish a new rule designating classesof copyrighted works that shall besubject to statutory exemption.
DATES
:
Effective Date: 
October 28, 2012.
FOR FURTHER INFORMATION CONTACT
:
 Jacqueline C. Charlesworth, SeniorCounsel to the Register of Copyrights,Office of the Register of Copyrights, byemail at
; Christopher S. Reed, Senior Advisor forPolicy & Special Projects, Office of theRegister of Copyrights, by email at
;or call the U.S. CopyrightOffice by phone at 202–707–8350.
SUPPLEMENTARY INFORMATION
:
TheLibrarian of Congress, upon therecommendation of the Register of Copyrights, has determined that theprohibition against circumvention of technological measures that effectivelycontrol access to copyrighted worksshall not apply to persons who engagein noninfringing uses of certain classesof works. This rulemaking is theculmination of a proceeding initiated bythe Register on September 29, 2011. Amore comprehensive statement of the background and legal requirements of the rulemaking, a discussion of therecord, and the Register’s analysis areset forth in the Register’sRecommendation, which wastransmitted to the Librarian on October12, 2012. A copy of theRecommendation may be found at
This noticesummarizes the Register’sRecommendation, announces theLibrarian’s determination, andpublishes the regulatory text codifyingthe exempted classes of works.
I. Background
A. Statutory Requirements
The Digital Millennium Copyright Act(‘‘DMCA’’) was enacted to implementcertain provisions of the WIPOCopyright Treaty and WIPOPerformances and Phonograms Treaty. Itestablished a wide range of rules for thedigital marketplace that govern not onlycopyright owners, but also consumers,manufacturers, distributors, libraries,educators, and online service providers.Chapter 12 of Title 17 of the UnitedStates Code prohibits the circumventionof certain technological measuresemployed by or on behalf of copyrightowners to protect their works(‘‘technological measures’’ or ‘‘accesscontrols’’). Specifically, Section1201(a)(1)(A) provides, in part, that‘‘[n]o person shall circumvent atechnological measure that effectivelycontrols access to a work protected’’ bythe Copyright Act. In order to ensurethat the public will have the continuedability to engage in noninfringing usesof copyrighted works, however,subparagraph (B) limits this prohibition.It provides that the prohibition shall notapply to persons who are users of acopyrighted work in a particular class of works if such persons are, or in the
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succeeding three-year period are likelyto be, adversely affected by virtue of theprohibition in their ability to makenoninfringing uses of such works, asdetermined in this rulemakingproceeding.The proceeding is conducted by theRegister of Copyrights, who is toprovide notice of the proceeding, seekcomments from the public, consult withthe Assistant Secretary forCommunications and Information of theDepartment of Commerce, andrecommend final regulations to theLibrarian of Congress. According toSection 1201(a)(1)(D), the resultingregulations, which are issued by theLibrarian of Congress, announce ‘‘anyclass of copyrighted works for which theLibrarian has determined, pursuant tothe rulemaking *** that noninfringinguses by persons who are users of acopyrighted work are, or are likely to be,adversely affected, and the prohibitioncontained in subparagraph (A) shall notapply to such users with respect to suchclass of works for the ensuing 3-yearperiod.’’The primary responsibility of theRegister and the Librarian in thisrulemaking proceeding is to assesswhether the implementation of accesscontrol measures is diminishing theability of individuals to use copyrightedworks in ways that are not infringingand to designate any classes of workswith respect to which users have beenadversely affected in their ability tomake such noninfringing uses. Congressintended that the Register solicit inputthat would enable consideration of a broad range of current or likely futureadverse impacts. Section 1201(a)(1)(C)directs that the rulemaking proceedingexamine: (1) The availability for use of copyrighted works; (2) the availabilityfor use of works for nonprofit archival,preservation, and educational purposes;(3) the impact that the prohibition onthe circumvention of technologicalmeasures applied to copyrighted workshas on criticism, comment, newsreporting, teaching, scholarship, orresearch; (4) the effect of circumventionof technological measures on the marketfor or value of copyrighted works; and(5) such other factors as the Librarianconsiders appropriate. These statutoryfactors require the Register andLibrarian to balance carefully theavailability of copyrighted works foruse, the effect of the prohibition onparticular uses, and the effect of circumvention on copyrighted works.
B. The Rulemaking Process
In examining the factors set forth inSection 1201(a)(1)(C), the focus is onwhether the implementation of technological measures has an adverseimpact on the ability of users to makelawful uses of copyrighted works. Thestatutory prohibition on circumventionis presumed to apply to any and allkinds of works unless, and until, thecriteria have been met for a particularclass.In each rulemaking proceeding, theRegister and Librarian review theproposed classes
de novo.
The fact thata class previously has been designatedcreates no presumption thatredesignation is appropriate. While insome cases earlier
legal 
analysis by theRegister may be relevant to analyzing aproposed exemption, the proponent of aclass must still make a persuasive
 factual 
showing with respect to thethree-year period currently underconsideration. When a class has beenpreviously designated, however,evidence relating to the costs, benefits,and marketplace effects ensuing fromthe earlier designation may be relevantin assessing whether a similar classshould be designated for the subsequentperiod.Proponents of an exemption for aclass of works bear the burden of demonstrating that the exemption iswarranted. In order to establish a
 prima facie
case for designation of a particularclass of works, the proponent mustshow that: (1) Uses affected by theprohibition on circumvention are or arelikely to be noninfringing; and (2) as aresult of a technological measurecontrolling access to a copyrightedwork, the prohibition is causing, or inthe next three years is likely to cause,a substantial adverse impact on thoseuses.There are several types of noninfringing uses that could beaffected by the prohibition of Section1201(a)(1), including fair use and theuse of public domain works, amongothers. A proponent must show that theproposed use is or is likelynoninfringing. It is not sufficient thatthe use could be noninfringing, as theRegister does not apply a ‘‘rule of doubt’’ when it is unclear whether aproposed use is likely to be fair orotherwise noninfringing.A proponent may not rely onspeculation to support a proposed class, but instead must show by apreponderance of evidence that thealleged harm to noninfringing uses ismore likely than not to occur during thenext three years. The harm must bedistinct and measurable, and more than
de minimis.
The Register and Librarianwill, when appropriate, considerwhether alternatives exist to accomplishthe proposed noninfringing uses. Themere fact that a particular medium ortechnology may be more convenient fornoninfringing uses than other formats isgenerally insufficient to support anexemption. If sufficient alternativesexist, there is no substantial adverseimpact or adequate basis to designatethe class.
C. Defining a Class
The starting point in defining a‘‘particular class’’ of works to bedesignated as a result of the rulemakingis one of the categories of works setforth in Section 102 of the CopyrightAct, such as literary works, musicalworks, or sound recordings. Thosecategories are only a starting point,however; a ‘‘class’’ will generallyconstitute some subset of a Section 102category. The determination of theappropriate scope of a class of worksrecommended for exemption will alsodepend on the evidentiary record andtake into account the adverse impact onnoninfringing uses, as well as themarket for and value of the copyrightedworks.While beginning with a category of works identified in Section 102, or asubcategory thereof, the description of the ‘‘particular class’’ ordinarily will berefined with reference to other factors sothat the scope of the class isproportionate to the scope of harm tononinfringing uses. For example, a classmight be refined in part by reference tothe medium on which the works aredistributed, or to the access controlmeasures applied to the works. Thedescription of a class of works may also be refined, in appropriate cases, byreference to the type of user who maytake advantage of the exemption or thetype of use that may be made pursuantto the designation. The class must beproperly tailored to address not only thedemonstrated harm, but also to limit theadverse consequences that may resultfrom the exemption to the prohibitionon circumvention. In every case, thecontours of a class will depend on thefactual record established in therulemaking proceeding.
II. History of the Proceeding
A. Solicitation of Public Comments and Hearings
This is the fifth triennial rulemakingproceeding pursuant to Section1201(a)(1)(C). The Register initiated therulemaking on September 29, 2011 (76FR 60398) with publication of a Noticeof Inquiry (‘‘NOI’’). The NOI requestedwritten comments from all interestedparties, including representatives of copyright owners, educationalinstitutions, libraries and archives,scholars, researchers, and members of 
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the public, concerning whethernoninfringing uses of certain classes of works are, or are likely to be, adverselyaffected by the prohibition againstcircumvention of measures that controlaccess to copyrighted works.During the initial comment periodthat ended on December 1, 2011, theCopyright Office received 22 comments,all of which were posted on the Office’sWeb site. Based on these comments, theRegister identified proposed exemptionsfor the upcoming period. Because someof the initial comments containedsimilar or overlapping proposals, theCopyright Office organized theproposals into ten proposed classes of works, and set forth and summarizedeach class in a Notice of ProposedRulemaking (‘‘NPRM’’) published onDecember 20, 2011 (76 FR 78866).The NPRM did not present the initialclasses in the form of a proposed rule, but merely as ‘‘a starting point forfurther consideration.’’ The NPRMasked interested parties to submitadditional comments and replycomments providing support,opposition, clarification, or correctionregarding the proposed classes of works,and to provide factual and/or legalarguments in support of their positions.The Copyright Office received a total of 674 comments before the commentperiod closed on February 10, 2012. TheOffice also received 18 reply comments before the reply comment period closedon March 2, 2012.On March 15, 2012, the Registerpublished a Notice indicating thatpublic hearings would be conducted atthe University of California, UCLASchool of Law, in California, and at theLibrary of Congress in Washington, DC,in May and June 2012 to consider theproposed exemptions. Requests totestify were due April 2, 2012. Publichearings were held on five separatedays: at the Library of Congress on May11, 2012; at University of California, LosAngeles, School of Law on May 17,2012; and at the Library of Congress onMay 31, June 4, and June 5, 2012.Witnesses representing proponents andopponents of proposed classes of worksoffered testimony and answeredquestions from Copyright Office staff.Following the hearings, the CopyrightOffice sent follow-up questionspertaining to certain issues to witnesseswho had testified. The purpose of thesewritten inquiries was to clarify for therecord certain statements made duringthe hearings and to elicit furtherresponses to questions raised at thehearings.
B. Consultation With the Assistant Secretary for Communications and Information
As contemplated by Congress, theRegister also sought input from theAssistant Secretary for Communicationsand Information of the Department of Commerce, who oversees the NationalTelecommunications and InformationAdministration (‘‘NTIA’’). NTIA staff were briefed on the rulemaking processand informed of developments througha series of meetings and telephoneconferences. They also were inattendance at many of the hearings.NTIA formally communicated itsviews on the proposed classes in a letterdelivered to the Register on September21, 2012.
III. The Designated Classes
Upon the recommendation of theRegister of Copyrights, the Librarian hasdetermined that the following classes of works shall be exempt from theprohibition against circumvention of technological measures set forth inSection 1201(a)(1)(A):
A. Literary Works Distributed Electronically—Assistive Technologies
Literary works, distributed electronically,that are protected by technological measureswhich either prevent the enabling of read-aloud functionality or interfere with screenreaders or other applications or assistivetechnologies, (i) when a copy of such a workis lawfully obtained by a blind or otherperson with a disability, as such a person isdefined in 17 U.S.C. 121; provided, however,the rights owner is remunerated, asappropriate, for the price of the mainstreamcopy of the work as made available to thegeneral public through customary channels;or (ii) when such work is a nondramaticliterary work, lawfully obtained and used byan authorized entity pursuant to 17 U.S.C.121.
This exemption is a modification of the proponents’ proposal. It permits thecircumvention of literary works that aredistributed electronically to allow blindand other persons with disabilities toobtain books through the open marketand use screen readers and otherassistive technologies to read them,regardless of whether an accessible copymay be available for purchase, butprovided the author, publisher, or otherrights owner receives remuneration, asappropriate. It also permits authorizedentities operating under Section 121 touse such works and ensures that suchuse conforms to the provisions andsafeguards of that section.Proponents American Council of theBlind and American Foundation for theBlind, supported by The Samuelson-Glushko Technology Law & PolicyClinic at the University of Colorado LawSchool, sought an exemption to accessliterary works that are distributedelectronically—
i.e.,
ebooks—that arelegally obtained by individuals who are blind or print disabled but cannot beused with screen readers or otherassistive technologies. In 2006 and2010, the Librarian designated a classconsisting of ‘‘[l]iterary worksdistributed in ebook format when allexisting ebook editions of the work(including digital text editions madeavailable by authorized entities) containaccess controls that prevent the enablingeither of the book’s read-aloud functionor of screen readers that render the textinto a specialized format.’’
See
37 CFR201.40(b)(6). In this proceeding,proponents sought to eliminate therequirement that all existing ebookeditions contain access controls, but atthe same time proposed to limit theexemption to individuals with printdisabilities as defined by Section 121 of the Copyright Act and to authorizedentities under Section 121 distributingworks exclusively to such persons.Proponents asserted that theexception is necessary becausetechnological measures to control accessto copyrighted works have beendeveloped and deployed in ways thatprevent access to ebooks by people whoare blind or visually impaired.Proponents explained that, despite therapid growth of the ebook market, mostebook titles remain inaccessible due tofragmentation within the industry anddiffering technical standards andaccessibility capabilities acrossplatforms. Although precise figuresremain elusive, press accounts cited bythe proponents suggest that only afraction of the publicly available ebooksare accessible; proponents estimatedthat there are approximately 1.8 millioninaccessible ebook titles. Proponentscited an example,
The Mill River Recluse
 by Darcie Chan, ebook editionsof which are available in each of thethree major ebook stores. Only theiBookstore edition is accessible,however. An individual with a printdisability would thus be required tohave an iPhone, iPad, or other Appledevice in order to access the book. Joint Creators and Copyright Owners,consisting of the Association of American Publishers, the AmericanSociety of Media Photographers, theBusiness Software Alliance, theEntertainment Software Association, theMotion Picture Association of America,the Picture Archive Council of America,and the Recording Industry Associationof America (‘‘Joint Creators’’),representing various content ownergroups, offered no objection in principle
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