/Vol. 77, No. 208/Friday, October 26, 2012/Rules and Regulations
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—
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.’’
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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